SABUR BIBI Vs. ISMAIL SHAIKH

JUDGEMENT

(1.) One Satkari Shaikh, a Mussalman of the Sunni School, died leaving him surviving one widow, one daughter and two sisters. The plaintiff acquired by purchase the shares of the two sisters and, on attempting to obtain possession of the land, was resisted by the widow and the daughter. At the trial the widow claimed that, a sum of Rs. 925 being due to her for deferred dower and she being in possession of her husband's estate, she was entitled to retain such possession until the sum due to her had been paid out of the rents and profits by reason of the widow's lien for dower recognized by the Mussulman law. To that defence it was answered that the widow had not obtained possession by any consent, express or implied, of her husband or his other heirs. The learned Munsif found as a fact that no consent was obtained and he followed the decision of the Judicial Committee in Hamira Bibi's case (1916) I.L.R. 38 All. 581; 21 C.W.N. 1, and rejected the widow's defence of lien for dower. The learned District Judge, on appeal, has accepted this finding of the Munsif, has agreed with his view of law and has dismissed the appeal.

(2.) On this appeal, the first question for consideration is whether the judgments of the Courts below can rightly be subjected to any valid criticism on the ground that the question of implied consent has not been found upon. In my judgment, there can be no doubt that the learned Munsif had before him the question of implied consent and, on the facts of this case he found, and meant to find, that there was no consent at all. The learned vakil, who appeared for the widow, the appellant before us, contended that though the decision of the Judicial Committee in Hamira Bibi's case (1916) I.L.R. 38 All. 581: 21 C.W.N. 1. contained a statement to the effect that consent was necessary to give validity to such a defence, such statement was only obiter, and he pointed out that a Full Bench of the Madras High Court in the case of Beeju Bee V/s. Syed Moorthiya Saheb (1919) I.L.R. 43 Mad. 214, had adopted this view and had held, contrary to the dictum of the Judicial Committee, that such consent was not necessary. In these circumstances, he asked us to follow the Madras decision, to treat what is said in Hamira Bibi's case (1916) I.L.R. 38 All. 581: 21 C.W.N. 1 as not binding upon us and to allow this appeal.

(3.) Now, it is quite true--and I am glad to know that it is recognized--that, in appreciating decisions of Court, it is necessary to remember that a case is only an authority for the ratio decidendi. This principle is in constant exercise when dealing with the decisions of Courts wherein each Judge gives or may give his individual opinion. It is, however, particularly difficult to apply to decisions of the Judicial Committee and every lawyer in India knows that the Judicial Committee, in giving its reasons, has always a very scrupulous regard to the inconvenience that may be caused by obiter dicta. In the present case, the argument on behalf of the appellant is that the case before the Judicial Committee involved only the question whether or not interest should be allowed to the widow in the accounts. The case was one in which undoubtedly the widow had obtained possession by the consent of her husband or his heirs. In these circumstances, it is said that the observations were unnecessary for the decision, that the decision is contrary to a series of decisions in India and that it ought not to be followed.