RAMIJA BIBI Vs. SHARIFA BIBI

JUDGEMENT

(1.) THE question in this appeal is whether the judgment of the Privy Council in Mt. Maina Bibi V/s. Ch. Vakil Ahmad has overruled the decision of the Full Bench of this Court which decided Beeju Bee V/s. Moorthuja Sahib ( 20) 7 A.I.R. 1920 Mad. 666. THE answer which we give is in the negative. In Beeju Bee V/s. Moorthuja Sahib ( 20) 7 A.I.R. 1920 Mad. 666 this Court held that when a Mahomedan widow has not been paid her dower she is entitled to retain possession of her husband's properties, and that the properties cannot be divided among the heirs until the slower has been satisfied. THE Court also held that while a sale by a widow of the estate property to satisfy the dower debt is not binding on the other heirs of her husband, the vendee has the right to retain possession of the property purchased by him until the dower debt is satisfied. It is the second part of this judgment which is said to have been overruled by the Privy Council in Mt. Maina Bibi V/s. Ch. Vakil Ahmad . THE first part of the judgment is not in any way in dispute. THEre is a considerable divergence of opinion in the High Courts of India on the question whether a widow is entitled to transfer her right to dower and if she does, whether the transferee is entitled to remain in possession until the debt is satisfied. No purpose will be served by discussing these conflicting authorities. THE judgment in Beeju Bee V/s. Moorthuja Sahib ( 20) 7 A.I.R. 1920 Mad. 666 states the law so far as this Province is concerned, unless, of course, the Privy Council decides otherwise. In delivering the judgment of the Judicial Committee in Mt. Maina Bibi V/s. Ch. Vakil Ahmad Lord Atkinson observed: It was contended, as their Lordships understood, that Mt. Maina Bibi had by the deeds of 1907 assigned both her dower debt and her right to hold possession of her husband's estate until that debt was paid. It is doubtful whether she could have done either of these things, but however that may be, it is clear she, in fact, never purported or attempted to do either of them.

(2.) MR. Sesha Iyengar on behalf of the appellants has pointed to the doubt which the Board expressed as to whether a widow can assign her right to hold possession of her husband's estate until the debt is paid. The judgment, however, does not go beyond expressing this doubt and it is quite clear that if the Board had dealt with the question more fully, their observations would have been obiter because the question did not arise there. An expression of doubt is a different thing from overruling, and the judgment in Mt. Maina Bibi V/s. Ch. Vakil Ahmad can, in no sense, be said to have overruled the decision of the Full Bench in Beeju Bee V/s. Moorthuja Sahib ( 20) 7 A.I.R. 1920 Mad. 666. In the present case the Subordinate Judge held that the transferee of the widow's right was entitled to remain in possession until the whole of the dower is paid. Here he erred. It can be regarded as settled law that the plaintiffs are entitled to partition on payment of their shares of the mahr and the decree of the Subordinate Court will be varied to this extent. The decree to be drawn up in accordance with this judgment will make it clear that each cosharer is entitled to his or her share on payment of his or her share of the mahr. As the respondents have not appeared there will be no order as to costs. We desire to express our appreciation of the assistance which counsel have given us and our thanks to MR. Muthukrishna Iyer for having acted as amicus curiae.