1. These are cross-appeals from a preliminary decree made by the First Class Subordinate Judge at Ahmednagar in a suit for partition and administration. The parties are Mahomedans. The estate to be divided, which consists of houses, cash and some moveable property, belonged to Hafizulla Lalmiya who died intestate at Ahmednagar in 1934. The estate is in the possession of his widow Halimunnisa defendant 1. The plaintiff claims that he and his brother defendant 2 are the sons of Hafizulla's father's brother Dadamiya and are, therefore, entitled to three-fourths between them as residuaries, defendant 1 being entitled to the remaining one-fourth. It is not disputed that these would be the shares if plaintiff and defendant 2 are related to Hafizulla as they contended. Defendant 1 however has denied that they are related in that way or in any way to Hafizulla. She has also contended that in any ease before plaintiff and defendant 2 can recover their shares she is entitled to be paid Rs. 5000 for her deferred dower and a sum of Rs. 5000 in respect of various payments alleged to have been made by her on behalf of the estate. Plaintiff disputed this expenditure, and as to the dower he alleged that it was only Rs. 500 and also that it was remitted by defendant 1 at her husband's funeral.
2. The decree made by the trial Court declares the shares and states that defendant 1 is to have a charge for Rs. 5000 due to her for dower and for Rs. 475 for medical charges, funeral expenses, etc. Defendant 1 is to be allowed to keep the furniture and utensils, the value of which is Rs. 500, and the order for costs is that defendant 1 is to bear her own and, pay those of the plaintiff. Plaintiff, I may say, brought the suit as a pauper. A provision has also been made for the appointment of a Commissioner for the partition and for realising certain cash certificates, and there is a further order appended to the decree declaring plaintiff and defendant 2 each to be entitled to Rs. 10 a month as mesne profits. Against this decree both plaintiff and defendant 1 have appealed. (His Lordship first dealt with the plaintiff's appeal and holding that the dower of defendant 1 was Rs. 5000, and that there was no effectual remission of it by her at the funeral of her husband, and proceeded.) It appears that legally the dower may be remitted in this way merely by the recital of a formula, but it must be the voluntary act of the widow. The Court must be satisfied that she realised what she was doing and the consequences of it. It has been so held in a very similar case Nurannessa Khanum v. Khaje Mahomed Sakroo (1920 ) 7 A.I.R. Cal. 463. In the course of the judgment the Court observed (p. 545):
It is also conceded by the learned vakil for the respondent that free assent must be established. That is a question irrespective of Mahomedan law. We think she, (i. e., the widow in that case) was prompted by others and was not a free agent at the time. She was not in a position to exercise free and deliberate judgment and influence was exercised which she was not in a position to overcome .... Under these circumstances we are unable to uphold the alleged relinquishment as valid.
3. The learned trial Judge has followed this ruling, and in our opinion he was right in holding that there has been no effective release of her dower by defendant 1. The plaintiff's appeal therefore fails. (While dealing with defendant 1's appeal, his Lordship held that the relationship of plaintiff and defendant 2 to Hafizulla as alleged was proved, and proceeded.) Mr. Nijsure's argument was mainly directed to showing that the trial Court has unduly cut down defendant 1's claims in respect of funeral expenses and other expenditure. There is first an item of Rs. 1000 claimed by defendant 1 as expenses connected with the funeral. The trial Judge has found on the evidence that Rs. 1000 were probably spent. But he was of opinion that in a suit of this kind only funeral expenses strictly so-called can be allowed, and he therefore disallowed the amounts claimed for a large dinner given to the community. Vouchers have been put in showing an expenditure of over Rs. 400 for this purpose. The only authority on the point seems to be a case not in the authorised reports which is referred to by Sir Dinshah Mulla in his Principles of Mahomedan Law in para. 29. It was held in that case that funeral and death-bed charges do not include money spent on ceremonies for securing the peace of the soul of the deceased. However, Mr. Tyabji in his commentary on Mahomedan Law doubts the correctness of this decision. We think that if a dinner to the community is prescribed by custom, reasonable expenses under that head are admissible. The sum of Rs. 250 which the trial Judge has allowed for all these expenses seems to us to be too little and we allow) Rs. 500.
4. The next point urged by Mr. Nijsure is that defendant 1 ought to be allowed interest on the amount of her dower. This claim to interest has been recognized by the Privy Council in Hamira Bibi v. Zubaida Bibi (1916) 3 A.I.R P.C. 46. In that case the mesne profits claimed by the heirs were disallowed because they were not in excess of interest at six per cent, on the widow's dower. We think the same course may properly be followed here. The mesne profits allowed to plaintifi and defendant 2 are Rs. 20 a month, i. e., Rs. 240 a year, and that is not in excess of reasonable interest on the amount of defendant 1's dower. As I have mentioned, the trial Court ordered defendant 1 to pay the plaintiff's costs. The reason he has given is that the plaintiff had been unnecessarily harassed by defendant 1. In this respect we think there is little to choose between the parties. Plaintiff's attempt to deprive defendant 1 of her proper dower was no less unjustified than defendant 1's denial of his relationship. The proper order as to costs in the suit is in our opinion that parties should bear their own costs. Then lastly there is a question as to the form of the decree It has been argued for defendant 1 that instead of the charge which has been allowed by the trial Court defendant 1 should be held entitled to retain possession till payment of the claimant's proportionate share of her dower and the funeral expenses, etc. This involves a point of law which is not altogether without difficulty. Mr. Rao for the plaintiff has contended that the widow only has this right of retaining possession till payment if she is in possession by consent of the heirs. In Ian old case Mt. Bebee Bachun v. Sheikh Hamid Hossein ('70-72) 14 M.I.A. 377, their Lordships of the Privy Council said this (p. 384):.the appellant, [that was the widow in that case], having obtained actual and lawful possession of the estate under a claim to hold them as heir for her dower, their Lordships are of opinion, that she is entitled to retain that possession until her dower is satisfied, and the respondents cannot recover the possession of their shares unless that satisfaction has taken place.
5. It is not necessary to say, whether this right of the widow in possession is a lien in the strict sense of the term, although no doubt the right is so stated in a judgment of the High Court in a case in 10 W. E. 368.1 Whatever the right may he called, it appears to be founded on the power of the widow, as a creditor for her dower, to hold the property of her husband, of which she has lawfully, and without force or fraud, obtained possession, until her debt is satisfied, with the liability to account to those entitled to the property, subject to the claim for the profits received.'
6. Nothing was said in that case about the consent of the husband or of the heirs being necessary (1916) A.I.R. 3 P.C. 46. In Hamira Bibi v. Zubaida Bibi the widow was admittedly in possession with the consent of the heirs and the only point which had to be decided was whether she was entitled to interest. But in the course of their judgment their Lordships said (p. 301):.the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that if she lawfully, with the express or implied consent of the husband, or his other heirs, obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfied. This is called the widow's lien for dower....
7. This is the passage on which Mr. Rao relies. Both the Allahabad High Court in Zamin Ali v. Aziz-un-nissa : AIR1933All329 and the Madras High Court in Beeju Bee v. Moorthuja Saheb ('20) 7 A.I.R. 1920 Mad. 666 Full Bench case, have held that the dictum in Hamira Bibi v. Zubaida Bibi was not intended to lay down that consent of the heirs was essential. On the other hand a Bench of the Calcutta High Court in Sahur Bibi v. Ismail Shaikh : AIR1924Cal508 took the view that their Lordships were in the passage referred to defining the nature of the dower debt and the observations were not obiter. But it is to be noted, that in the same year in which Sahur Bibi v. Ismail Shaikh 1924 A.I.R 11 Cal. 508 was decided the Privy Council had again to consider the nature of the widow's right in Mt. Maina Bibi v. Vakil Ahmad . It was argued in that case that the position of a widow in possession of her husband's estate was analogous to that of a mortgagee in possession. This argument was not accepted by their Lordships and they observed (p. 150):
In the case of a mortgage the mortgagee takes and retains possession, under an agreement or arrangement made between him and the mortgagor. Any rights the mortgagee may get are conferred upon him by the mortgagor. In the present case...neither the possession of the property nor the right to retain that possession when acquired is conferred upon the widow by the agreement or the bounty of her deceased husband. The possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower-debt is paid is conferred upon her by the Mahomedan law.
8. Their Lordships referred to the proposition laid down in Mt. Bebee Bachun v. Sheikh Hamid Hossein ('70-72) 14 M.I.A. 377 which I have already cited and said that this decision of the Board more than fifty years before had been accepted as a sound as well as a binding authority. In view of this later case it would be very difficult to accept the view that the observations in Hamira Bibi v. Zubaida Bibi ('16) 3 A.I.R. 1916 P.C. 46 were intended to alter the law as previously expounded. If so, their Lordships of the Privy Council would hardly have reverted to the original formula without qualification and that too in a context where the factor of consent would have destroyed the argument. We therefore agree with the High Courts of Allahabad and Madras and hold that defendant 1 is entitled to retain possession until payment by the heirs of their proportionate share of the dower and expenses. In view of these findings, the following decree must be substituted for that of the trial Court:
9. Declared that the shares of plaintiff, defendant 2 and defendant 1 are 3/8, 3/8, 1/4 respectively. Defendant 1 is entitled to retain the furniture and ultensils, the value of which Rs. 500 is to be counted as part payment of dower. On deposit of Rs. 25 by the plaintiff a Commissioner to be appointed to make the partition and realise the cash certificates. But plaintiff is not entitled to possession of his share until payment to defendant 1 of 3/8 of rupees 4500 (Rs. 1687 1/2) plus 3/8 of Rs. 935 (Rs.350). Similarly, defendant 2 is not entitled to possession of his share except on payment of equal sum and also the court-fee on his share. No order for mesne profits which are set off against interest on the dower-debt. Parties to pay their own costs. Full court-fees to be paid half by plaintiff and half by defendant 1. So far as the appeals are concerned, plaintiff's appeal No. 99 of 1939 is dismissed with costs and the appellant must pay the court-fees which he would have paid if he had not been allowed to appeal as a pauper. Defendants 1's appeal No. 211 of 1939 having been in the main disallowed, the appellant must pay her own costs and half those of the plaintiff. In the civil application rule is discharged without order as to costs.