AMINUDDIN Vs. RAMKHELAWAN SINGH

JUDGEMENT

(1.) This appeal by two of the judgment-debtors, Aminuddin and Moinuddin, sons of one Abdul Karim, deceased, arises out of an execution proceeding in respect of a decree for money obtained by the respondent decree-holder against the heirs of the said Abdul Karim, the decree being enforceable against the heirs to the extent of the assets of the deceased in their bands. I propose to indicate at once the questions which arise for consideration and then state the facts so far as they are relevant, before proceeding to a detailed consideration of these questions. The questions are: (1) what is the proper construction of a deed of gift, dated 5th January 1941, executed by Mt. Bibi Mariam, widow of Abdul Karim, in favour of the two appellants; (2) if on a proper construction the deed of gift aforesaid is a transfer of the widow's right to unpaid dower and to retain possession in lieu thereof, is such right transferable; (3) if the present execution is barred by the principle of res judicata; and (4) if it is barred by time. The facts so far as they are relevant for the first two questions are stated in the succeeding paragraph, and I shall state the relevant facts for the remaining two questions while dealing with them.

(2.) The undisputed facts are that Abdul Karim executed a hundi in favour of the respondent firm, and died leaving his widow Bibi Mariam (being his first wife), two sons (the appellants before us) and two daughters, being his children from a second wife. The firm sued the aforesaid heirs of Abdul Karim, and obtained a decree for Rs. 6000 and odd plus interest, the decree directing that the heirs would be liable only to the extent of the assets of the deceased inherited by them. The decree was put in execution in Execution case No. 221 of 1935 against the said heirs, and several houses were sought to be sold. The widow Bibi Mariam objected to the execution on the ground that she was in possession of the properties of her husband, lawfully and without force or fraud, in lieu of her dower and was entitled to retain such possession until her dower debt, which was stated to be Rs. 40,000 and two gold mohurs, was paid. This objection prevailed, and in an appeal from the decision of the learned. Subordinate Judge this Court held that the dower debt was as claimed by the widow, who was entitled to retain possession of the properties until the dower was paid and it would be of no advantage to the decree-holder to direct that he be permitted to put the property to sale subject to the encumbrance of the dower debt. This was in 1938. Then, on 5 January 1941, Bibi Mariam executed a deed of gift in favour of the appellants, her two stepsons, in respect of one of the houses, the other houses having been transferred previously. In 1941 and then in 1944-45 the decree-holder again levied execution, and in the last execution case, No. 69 of 1945, out of which this appeal has arisen, the decree-holder sought to attach and sell the house the possession of which Bibi Mariam had given up in favour of the appellants as a result of the deed of gift aforesaid. The appellants have raised the objection that they are in possession of the house as donees and not as heirs of Abdul Karim; therefore, the house is not liable to be attached or sold in execution of the decree. They have also pleaded the bar of limitation. By his order, dated 25 May 1945, the learned Subordinate Judge has held that the present execution is not barred by limitation; he has further held, on the strength of certain decisions of this Court, that the widow's right to retain possession in lieu of dower is not transferable, and the appellants are now in possession as heirs of Abdul Karim. It is against this order of the learned Subordinate Judge that the appeal is directed.

(3.) The way the case was presented before the learned Subordinate Judge did not lead him to a consideration of the question of the nature or proper construction of the deed of gift, dated 5 January 1941, and the learned Subordinate Judge appears to have proceeded on the assumption that the deed of gift conveyed to the donees the widow's right to remain in possession of her husband's property in lieu of her dower debt. The two decisions on which the learned Subordinate Judge has relied are reported in Ram Prasad Singh and Ors. V/s. Mt. Bibi Khodaijatul Kubra and Ors. A.I.R. 1944 Pat. 163 and Abdul Samad V/s. Alimuddin and Ors. A.I.R.1944 Pat. 174. On these two decisions, the learned Sub-ordinate Judge held that the widow's right was not capable of alienation, and the appellants had acquired no interest in the property by virtue of the gift from their step-mother. Dr. Qazi Nazrul Hasan appearing for the appellants has subjected this finding of the learned Subordinate Judge to very Revere criticism, and has contended that there are other decisions of this Court as well as of other High Courts in which the widow's right to remain in possession in lieu of her dower debt has been held to be transferable. I shall presently refer to these decisions, as well as to the well-known decision of their Lordships of the Judicial Committee in Maina Bibi and Ors. v. Chaudhuri Vakil Ahmad and Ors. . I shall refer to those decisions not with a view to deciding the question if the widow's right to retain possession in lieu of her dower is transferable or not; because in the view which we have taken of this appeal that question does not fall for decision in the present case. I shall refer to those decisions in support of my view (here I am speaking for myself personally) that if the question as to the transferability or otherwise of the widow's right required decision in this case, I would have felt it necessary to refer this case to a larger Bench in view of the conflicting decisions on the subject and the doubt expressed by their Lordships of the Judicial Committee in Maina Bibi's case A.I.R. 1925 P.C. 68. I consider that the correct way of approaching this case is to decide first the nature of the gift made by the widow; in other words, to construe the deed of gift first in order to find out what the widow has given to her two stepsons. Before I consider that question, however, it is necessary to clear the ground by explaining the nature of the right which the widow has in her husband's property for payment of her dower debt. This question has been the subject of several decisions of the Privy Council, and it may now be taken as settled that the dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate; her right, however, is no greater than that of any other unsecured creditor, except that when she is in possession of the property of her deceased husband, having "lawfully and without force or fraud" obtained such possession in lieu of her dower, she is entitled as against the other heirs of her husband and as against the creditors of her husband to retain that possession until her dower is satisfied (see Ameeroon-Nissa and Ors. V/s. Moorad-oon-Nissa and Ors. 6 M.I.A. 211; Mt. Beebee Bachun V/s. Sheikh Hamid Hossein 14 M.I.A. 877; Hamir a Bibi and Ors. V/s. Zubaida Bibi and Ors. A.I.R. 1916 P.C. 46 and Maina Bibi and Ors. V/s. Chaudhuri Vakil Ahmad and Ors. . There are a large number of Indian decisions on the question to which it is not necessary to make any reference. The right of the widow to retain possession of her husband's estate in lieu of dower has given rise to many subsidiary questions on most of which there has been divergence of judicial opinion in the various High Courts of India at one stage or another. Some of the subsidiary questions are; (a) whether it is necessary, to entitle the widow to retain possession of her husband's property, that the possession should have been obtained by her not only "lawfully and without force or fraud," but also with the express or implied consent of the husband or his other heirs (see Beeju Bee v. Syed Moorthuja Sahib and Ors. A.I.R.1920 Mad. 666 ., and the cases there cited); (b) whether the right of the widow to hold and retain possession is a mere personal right and, therefore, not transferable by sale, gift or otherwise (see the observations in Hadi Ali V/s. Akbar Ali 20 All. 262; Muzaffar Alli Khan and Ors. v. Parbati and Anr. 29 All. 640, and the recent decision of this Court in Shaikh Mohammad Zobair V/s. Mt. Bibi Sahidan and Ors. A.I.R. 1942 Pat. 210; and (c) whether the right of the widow is of the nature of property or an actionable claim which is both heritable and transferable (see the observations in Amir Hasan Khan V/s. Muhammad Nazir Hasan ; Abdul Wahab Khan V/s. Mushtaq Ahmad Khan and Ors. and the cases cited therein). Fortunately for us, these questions need not be decided in this case, in the view which we have taken of this appeal. It is sufficient to state that it is now settled that the right of the widow is essentially different from that of a mortgagee (usufructuary or other); that the right is not a lien or charge in the strict sense of the term. It is also well settled that the right to hold possession does not give the widow any title to the property: the title to the property is in the heirs including, of course, the widow. The widow has, therefore, no right to alienate the property except to the extent of her own share, and if the widow gives up possession, she loses her right to remain in possession. These propositions are now well settled by the decision in the Maina Bibi's case where their Lord, ships have made the following observations regarding the right of the widow to assign 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 dear she, in fact, never purported or attempted to do either of them. On the contrary, on those deeds she describes herself as the absolute owner of the property of her deceased husband, and purports to convey that absolute ownership to her donees, There is no ground for the contention, if it has been really put forward, that because these deeds fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow's dower debt and her right to hold possession of the lands till that debt is paid. By giving up the possession of the lands, as in her deeds she alleges she has done, she has undoubtedly lost her right to hold the possession of them.