MASHAL SINGH Vs. AHMAD HUSAIN

JUDGEMENT

(1.) In our opinion this appeal must be allowed. In most respects we agree with the very clear judgment of the lower Court, but there is one respect in which we find ourselves unable to agree with the Judge. In discussing the right of the widow to remain in possession till her dower debt has been satisfied and the right of her heirs, who are entitled to succeed her, to exercise and enforce the same right, the learned Judge makes this addendum: "and if wrongfully deprived thereof, to maintain a suit for its recovery". This is true, but not correct in the sense in which the learned Judge used that phrase. The right to maintain a suit for recovery of possession, if wrongly deprived thereof, has nothing to do with the right of lien. It is the ordinary right under the Specific Relief Act for a person rightfully in possession to sue on a possessory title for recovery of possession if he has been wrongfully deprived of it, but such a suit must be brought within six months of the wrongful dispossession. That is not this case, nor can such a claim in a suit be justified by a claim to assert a lien. We do not propose to add to the complications, which are already sufficient in the Law Reports, by discussing the various rights which arise in connexion with what is called a dower debt. We are content to adopt the very clear and learned judgment of Mr. Justice Tudball in the case of Ali Baksh V/s. Allahabad Khan [1910] 32 All. 551. But a lien is not a right to possession and although the right of lien may be analogous to the right of a mortgage, that comparison gives no assistance unless you define the mortgage to which the right of lien is analogous to arrive at an agreement as to the essentials of a lien which are co-terminus with the essentials of a particular form of mortgage. The mortgagee's right to possession is based upon the contract, but the right to a lien is based upon possession. It does not give a right to recover possession if he should lose it. The result is that we have to allow this appeal so far as the claim to the lien is concerned. It is admitted that the possession in this case was lost by the wrongful act of Defendant No. 1. On the other hand it has never been disputed, and inasmuch as the lower appellate Court decided in favour of the plaintiff, the question did not arise that the plaintiff is entitled to a 1/8th share by way of inheritance. The claim for possession based upon lien, which was the substantial matter in the suit, must be dismissed, and the plaintiff must pay the costs of the suit in the Court below and in this Court including fees on the higher scale. She is entitled from us to a declaration that she is the owner by virtue of inheritance torn her deceased husband to a 1/8 share in the property. Ashworth, J.

(2.) The plaintiff is suing as transferee of certain property from one Abadi Begam. His case was that the property belonged to one Haidar Khan and was retained by his widow Mt. Khatun Begam by right of lien for her dower debt of Rs. 60,000, that on the death of the "widow Mt. Khatun Begam, one Zafar Hasan Khan, a son of Haider Khan by another wife took forcible possession of the property although Mt. Abadi Begam, sister of the widow was entitled to it and that Mt. Abadi Begam sold the plaintiff her interest. In this appeal there is no question that the plaintiff is entitled to the one-eighth of the property which the widow inherited from her husband, irrespective of any right of lien for her dower debt. That one-eighth passed to Mt. Abadi Begam, sister of the widow, and was transferred by her to the plaintiff. The first Court held that as Mt. Abadi Begam and her transferee, the plaintiff were out of possession the plaintiff could not, on the strength of the lien, sue for possession. The lower appellate Court held that a Muhammadan widow or her legal representative, by reason of a lien, occupied a position analogous to that of a mortgages in possession, and if that possession was disturbed, could sue to recover it on the basis of the lien. The Court relied upon the reported decision of a two Judge Bench of this Court namely Azizullah Khan V/s. Ahmad Ali Khan [1885] 7 All. 353. I concur with my learned brother that the lien of a Muhammadan widow over property, on account of a dower debt, only operates so long as she remains in possession of the property. On being deprived of possession, she has a right independently of her lien, to recover possession within six months under the Specific Relief Act. The lien gives her no title, or right to recover possession, but only a right to retain possession.

(3.) Nor (apart from Section 9 of the Specific Relief Act) can the widow rely on the title arising from mere prior possession Title based on mere prior possession is only available against someone other than the rightful owner. The heir is the rightful owner and the widow, only having a right of lien, has no title.