1. This second appeal arises out of a suit brought by Sheikh Abdul Sattar plaintiff as heir of one Muhammad Ishaq against Mt. Aqiba Bibi, the widow, for a declaration that he was entitled to a 3/4 the share of the property and that the widow had no right to resist his claim. An alternative prayer was that if he should be found to be out of possession, he should be given a decree for possession. The first Court found that Muhammad Ishaq died five years ago and that the widow had been in possession of his property in lieu of her dower-debt of Rs. 5,000 ever since his death. The lower appellate Court upheld this finding.
2. In this second appeal the only point taken is that the finding of the Courts below that the widow had been in possession of Sheikh Abdul Sattar's property in lieu of her dower was a finding not of fact but of law and was a wrong finding. If that finding be set aside, then under Article 104 of the Limitation Act the widow's claim to dower would be time-barred. The first question that arises in respect to this question is whether the finding of the lower Courts as to the widow's possession in lieu of dower was a finding of law or finding of fact. It appears to have been regarded by the lower Courts as a finding of fact but, in my opinion, it cannot be regarded in this light. There was no doubt that the widow was in actual possession for the last five years and long before her husband had not been heard of for 14 years and all that time she must have been in actual possession. The finding to this effect was a finding of fact but the question arises whether she was in possession in lieu of her dower or whether she was in possession merely because her husband was absent.
3. It appears that some five years ago the widow applied to the mutation Court for entry of her name. Her application is not on the file but it must be presumed that she wished her name to be entered in place of her husband as she considered his long absence was sufficient proof of his death. The Mutation Officer, owing probably to what may be regarded as an excess of caution, directed that her name should be entered 'along with her husband Muhammad Ishaq who had not been heard of for a long time.' The form of this entry, however, is of no evidential value. Nor indeed does the entry prove anything one way or the other as to possession. What is significant is that an application for alteration of the entry was made and allowed. This shows that from the date of the entry the intention of Mt. Aqida Bibi was to hold the property of her husband in lieu of her dower. It was not, however, necessary for the Courts below nor for this Court to base a finding as to her intention on the evidence, provided that it is possible to hold that her husband was dead and that she continued to be in possession of his property after his death. As to the first fact this Court is bound by the concurrent finding of the lower Courts that the husband died five years before suit. This finding apparently was based on a single witness. That is no reason for its not being binding on this Court.
4. Now if the husband was dead and the widow remained in possession after his death, it will be presumed that her possession was in lieu of dower. This presumption is mentioned as a presumption of Muhammadan Law on page 120 of Tyabjee's Principles of Muhammadan Law, First Edition. In Mulla's Muhammadan Law, 8th Edition, page 184 the legal position is stated slightly differently. It is stated that the widow has a right of retention
when she is in possession of the property of her deceased husband, having obtained such possession lawfully and without force or fraud, and her dower or any part of it is due and unpaid.
5. In this view of the law it is not necessary to prove with what intention she may have retained possession of her husband's property. It is only necessary to prove that she got possession rightfully during his life and that at the time of his death her dower was unpaid.
6. The argument which has been raised by the appellant appears to me largely based on the misconception that in this case the widow could not have got possession of her husband's property until his death was presumed. She was in actual possession from the date when the husband went abroad on his travels. Her lien on the property came into existence as from the date when the Courts below have held that he died.
7. For the above reasons I dismiss the appeal with costs.