1. The plaintiff is the brother and defendant 1 is the widow of one Dilawar Khan to whom the plaint schedule house belonged. The plaintiff sued defendant 1, and defendant 2 who has purchased it from her, for partition and possession of his 3/4th share in it. Defendant 1 pleaded that her husband had settled 39 tolas of gold on her as her mahar or dower; she had borrowed and spent some monies for meeting the medical charges and funeral expenses of the deceased. She had also paid some arrears of Municipal assessment due on the property. In order to pay off those debts and for her maintenance she had sold and conveyed all her rights in the suit property including her right to retain possession till she was paid off, to defendant 2 for Rs. 1000/- and delivered over possession of the same to him. She, and therefore, her alienee defendant 2 were entitled to retain possession till the plaintiff was paid off his proportionate share of the dower debt. Defendant 2 also raised the same defence.
2. The plaintiff denied the amount of the mahar as well as the other items claimed by defendant 1.
3. Both the Courts below have however found that the mahar fixed was 39 tolas of gold and that it has remained unpaid. That finding is binding on me in second appeal. The learned Munsiff fixed the amounts due to defendant 2 for medical charges and funeral expenses at Rs. 150/- and Rs. 250/- respectively. The Subordinate Judge has fixed them at Rs, 507- each and has made the same a first charge on the suit property. The amounts fixed by the learned Subordinate Judge appear to be more probable considering the status of the parties and the paucity of the evidence and I see no reason to differ from his finding in this matter.
4. The learned Munsif made a decree for partition and possession of the 3/4th share in favour of the plaintiff conditional on his paying his share of the mahar debt to defendant 2. The learned Subordinate Judge has vacated that direction and held that defendant 2 had no right to remain in possession till he was paid the 3th share of the mahar debt.
5. The defendants have come up in second appeal. It is contended by Mr. V. Krishnamurthy, learned Counsel for the Appellants, that the learned Subordinate Judge ought to have held that the sale deed Ex. 4 dated 6-10-1947 executed by defendant 1 in favour of defendant 2 operated by its terms to convey the right of retention of possession of the suit property until the plaintiff had paid his proportionate share of the dower debt. He argues that there is no doubt that the widow of a . deceased Mahomedan who is actually in possession of her husband's property has a right to retain possession of the same. He relies for that position on a case decided by this Court in 31 Mys. CCR 50 (Al) where it has been laid down that a Mahomedan widow who was in lawful possession of her husband's house was entitled as against the other heirs of her husband to retain that possession until her dower was paid. He was also referred to passages in Mulla's Mahomedan Law 12th Edn., page 237 para 224 and Ameer Ali's Mahomedan Law, VIII Edn. page 490. He urges that the right to retain possession has been held to be heritable also and that there is nothing in Mahomedan or other law which would prevent her from transferring that right along with the property in favour of another by a valid conveyance nor would such transfer be opposed to any other principle of law. That such a right of a Mahomedan widow to retain possession of her husband's estate in lieu of her mahar debt is a heritable right has been recognized in -- 'Azia Ullah Khan v. Ahmad Ali Khan', 7 All 353 (A); -- 'Ali Bakhsh v. Allahabad Bank', 32 All 551 (B); and -- 'Majid Mian Baxu Mian v. Bibi Saheb Jan' AIR 1915 Bom 214 (C). The same principle has been recognized even in -- 'Coovarbai Nasarwanji v. Hayathi Budhan-bhai' A.I.R. 1943 Bom. 372 (D) on which respondent relies. See also -- 'Mashal Singh v. Ahmad Husain' : AIR1927All534 and Mulla's Mahomedan Law, 12th Edn. page 242, para 225 (a).
6. In -- 'Beeju Bee v. Moorthuja Saheb' A. I. R, 1920 Mad 666 (FB) (F) it has been held, after an exhaustive discussion of the case law on the point, that a Mahomedan widow whose dower remains unpaid is entitled to retain possession of the properties of her husband which she obtained lawfully, without force or fraud, but without the consent of or any agreement with the husband or his heirs as to the payment of her dower; nor can such properties be divided among the heirs until the dower debt is satisfied. Though the sale by such widow to satisfy the dower debt is not binding on the other heirs of her husband, the vendee is entitled to retain possession of the property sold to him against the other heirs until the dower debt is satisfied. That reference to the Full Bench was necessitated by the conflict of decisions as to whether the widow's right to hold possession is transferable as well as heritable. Abdur Rahim, C. J. after a detailed examination of the law on the point observed that there is no express text of Mahomedan Law so far as one- could see dealing with the question whether the right of the widow in possession -of her husband's property in lieu of her dower to retain such possession until the same is satisfied, is transferable at all or whether it is purely a personal right. But it was a well settled law that a person in peaceable possession of land as against every one but the true owner has interest capable of being inherited, devised or conveyed. The sale by the widow would not bind her husband's heirs but she could transfer her right to possession along with the dower debt and the alienation must be held binding on the heirs to that extent. He was of the opinion that in -- 'Hamira Bibi v. Zubaida. Bibi' AIR 1916 PC 46 (G) the Privy Council had not been invited to consider the question relating to the circumstances under which the widow's right to remain in possession for satisfaction of the dower debt arose; and that neither that decision nor -- 'Amanat-un-nissa v. Bashir-un-nissa', 17 All 77 (G1), had settled the controversy with respect to the question before him.
7. In -- 'Bhavadasan Nambudripad v. narayana Nayar' A.I.R. 1943 Mad 550 (H) Leach C. J. and Lakshmana Rao J. were of the opinion than the judgment of the Privy Council in -- 'Mt. Maina Bibi v. Vakil Ahmed'. 47 All 250 (HI), had not the effect of overruling the decision of the Full Bench in --- AIR 1920 Mad 666 (F). They observed that there was considerable divergence of opinion between the various High Courts on the question whether a widow is entitled to transfer her right to dower and if she does so transfer whether the transferee is entitled to remain in possession until that debt is satisfied. They naturally followed the Full Bench decision of their own Courtand held that each co-sharer in such circumstances is entitled to his or her share on payment of his or her share of themahar.
8. In -- 'Yusuf Mian v. Gafoor Mian1 : AIR1952Pat123 (I) following -- 'Abdur Rahman v. Wall Mahomed' AIR 1923 Pat 72 (J) a transfer of property of a widow who has been holding the property in lieu of her dower debt has been held to be valid during her lifetime.
9. For the Respondent strong reliance has been placed on a case reported in -- AIR 1943 Bom. 372 (D). In that case relying on --AIR 1916 PC 46 (G)' it has been observed that the right of a widow is no greater than that of any unsecured creditor. But if she is lawfully in possession she is entitled to retain such possession until her claim is satisfied. That right to retain possession in lieu of her dower is a heritable right but, they Held, though that right is a heritable right neither the widow nor her heirs can bring a suit for possession on the basis of the lien which gives no title to the property and the only maintainable suit is one based on possession and dispossession. They pointed out that the widow's right is essentially a right to retain possession which she has obtained and not to obtain possession in the exercise of that right. In the case before them the widows were, it was found, not in possession of the property belonging to their husband and could not therefore sue for, possession based on that right.
10. 'Mahomed Zobair v. Mt. Bibi Sahidan' AIR 1942 Pat 210 (K), is the next case relied on for the respondent. In that case also, the widow made a gift of her husband's property of which she was in possession purporting to convey it as an absolute estate by a registered deed of gift. The donee was not put in possession. In a suit by the heirs to recover possession of their shares it was held that the donee could not resist their claim by relying on the widow's right to recover her mahar and to be put in possession of the property. That case has been decided on the basis that the donee was not put in possession of the property by the widow, and the question whether he could put forward the widow's right to retain possession did not arise. The sale or gift deed in that case, which was also impeached as Invalid for want of registration, did not also purport to convey the widow's right to retain possession till her dower debt was paid.
11. In -- 'Aminuddin v. Ram Khelawan' AIR 1949 Pat 427 (L), it was observed that the right to hold possession does not give a widow any title to the property. The widow had therefore 310 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. A contention was raised before that Court that the widow had been in possession before she transferred the property and that the transferee had become entitled to her rights. On an examination, however, of the deeds of gift, it was held that the widow had described herself as absolute owner of the property of her deceased husband and purported to convey that absolute ownership to the donee. Those deeds failed to effect a transfer of the absolute interest and there was no mention in the document of any transfer of the widow's rights to retain possession till the dower debt was paid.
12. There are a very large number of cases dealing with this point but I think the general principle of law which may be deduced from them would amount to this: A widow of a Mahomedan who is lawfully in possession of her husband's estate can retain such possession until her dowerdebt is paid or satisfied. That right is heritable, and may be transferred along with her share provided the same is done by a proper and valid deed of conveyance. The transfer must include the right to remain in possession also and the transferee must also be put in possession. If the widow or her transferee is out of possession they cannot sue for possession on the basis of the right to retain possession. See -- : AIR1927All534 . The terms of the sale deed Ex. IV in this case become therefore important for consideration.
13. Exhibit IV clearly purports to convey the entire defendant 1's rights in the property including her right to retain possession in lieu of her dower. The relevant words are. (The original clause in Kannada is omitted -- Ed.) The widow was admittedly in possession on the date of the sale and defendant 2 is now in possession. In I those circumstances I think defendant 2 is entitled to remain in possession until the dower debt is discharged. In this view the decision of the learned Munsiff appears to be correct.
14. In the result this appeal is allowed, thejudgment and decree of the learned SubordinateJudge are set aside and those of the learned Munsiff restored parties bearing their own coststhroughout with the modification that instead ofRs. 400/- awarded in respect of the funeralcharges and medical expenses only Rs. 100/- willbe payable to defendant 1, the same being a firstcharge on the plaint schedule property.
15. Appeal allowed.