Skip to content


M. Amir Hasan Khan Vs. H. Mohammad Nazir Hasan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All345
AppellantM. Amir Hasan Khan
RespondentH. Mohammad Nazir Hasan and anr.
Excerpt:
.....share in village bahrampur in lieu of dower, defendant 1 was entitled to remain in possession, the dower debt not having been paid by the plaintiff. 5. the learned district judge took a contrary view in a well-reasoned judgment holding that the widow's claim to dower is an actionable claim, as denned in the transfer of property act, and that defendant 1 being a legal practitioner was de barred from taking a transfer of such claim. as regards the amount of dower, the learned judge held that the burden of proving the exact amount stipulated at the time of marriage lay on the widow, who failed to establish that it was rs. it is not necessary to pursue this aspect of the case further, as we are satisfied that a claim to unpaid dower debt is an actionable claim as now defined in section 2, t...........court upholding the widow's right to remain in possession of the plaintiff's share till her dower debt was paid. she executed on 22nd september 1925, a deed of sale in favour of defendant 1 the validity of which is in question in the present case. the deed recites that a largo sum of money was due to the executant, mt. kulsum bibi, in respect of her unpaid dower debt, (the exact amount of which is not specified) and that she was in possession of a 6 anna share in lieu thereof. the deed purports to convey the entire 8 anna share to the vendee in consideration of rs. 3,875, part of which was left with the vendee. the deed also purports to assign to the vendee the vendor's right to recover her dower debt and the right to remain in possession of a 6 anna share until it is paid......
Judgment:

Niamatullah, J.

1. This second appeal has arisen out of a suit brought by the plaintiff-respondent for recovery of possession of a 6 anna share in village Bahrampur, District Fatehpur. The Subordinate Judge, in whose Court the suit had been instituted, dismissed it; but on appeal by the plaintiff it was decreed by the District Judge.

2. Village Bahrampur above mentioned belonged to Saghir Hasan, husband of Kulsum Bibi, defendant 2, and Munshi Amir Hasan Khan, a vakil practising in Fatehpur in equal shares. The two do not appear to belong to the same family, and the fact that they were cosharers may be due to circumstances which are not material for the purposes of this case. Saghir Husain died in or about 1920, leaving his brother Nazir Husain, plaintiff-respondent, and Mb. Kulsum Bibi, defendant 2, as his heirs, the latter being entitled to one-fourth of Saghir Husain's property, and the former to the remaining three-fourths. The widow however entered into possession of the entire 8 anna share belonging to her husband, and obtained mutation of names, as owner to the extent of 2 annas (one-fourth), and in lieu of dower to the extent of 6 annas (three-fourths). The plaintiff contested her claim in the proceedings for mutation, but was unsuccessful. He acquiesced in the order of the Revenue Court upholding the widow's right to remain in possession of the plaintiff's share till her dower debt was paid. She executed on 22nd September 1925, a deed of sale in favour of defendant 1 the validity of which is in question in the present case. The deed recites that a largo sum of money was due to the executant, Mt. Kulsum Bibi, in respect of her unpaid dower debt, (the exact amount of which is not specified) and that she was in possession of a 6 anna share in lieu thereof. The deed purports to convey the entire 8 anna share to the vendee in consideration of Rs. 3,875, part of which was left with the vendee. The deed also purports to assign to the vendee the vendor's right to recover her dower debt and the right to remain in possession of a 6 anna share until it is paid. Defendant 1 obtained possession of the entire 8 anna, share sold, by defendant 2.

3. The present suit was instituted on 18th May 1927 for recovery of possession of 6 anna share belonging to the plaintiff but previously held by the widow (defendant 2) in lieu of dower. The validity of the sale deed so far as it relates to 6 anna share belonging to the plaintiff is impugned on the ground that defendant 2 had no right to transfer her dower debt and her right to possession of 6 anna share to defendant 1. According to the plaintiff the dower of defendant 2 stipulated at the time of her marriage with Saghir Husain was no more than Rupees 1,700. It was pleaded by defendant 1 in defence that the dower of defendant 2 agreed to by her husband was Rupees 50,000 and that she was entitled to possession of her husband's share till the aforesaid amount was paid, which right she validly transferred to defendant 1.

4. The trial Court held that the dower of defendant 2, stipulated at her marriage with Saghir Husain, was Rs. 50,000 and that she having transferred her right to receive dower as well as her right to retain possession of her husband's share in village Bahrampur in lieu of dower, defendant 1 was entitled to remain in possession, the dower debt not having been paid by the plaintiff.

5. The learned District Judge took a contrary view in a well-reasoned judgment holding that the widow's claim to dower is an actionable claim, as denned in the Transfer of Property Act, and that defendant 1 being a legal practitioner was de barred from taking a transfer of such claim. Accordingly defendant 1 did not acquire the right to recover the dower debt and could not, for that reason, acquire an indefeasible right of possession of 6 anna share which was previously in the hands of the widow subject to the lien for her unpaid dower debt. As regards the amount of dower, the learned Judge held that the burden of proving the exact amount stipulated at the time of marriage lay on the widow, who failed to establish that it was Rs. 50,000.' He laid stress on the recital in the sale deed which did not specify the amount of dower, but mentioned it generally as a large amount. Apparently the learned Judge was of opinion that the sum of Rs. 50,000 alleged in the written statement was the result of an after-thought.

6. It was contended before us by the learned advocate for the defendant-appellant that the widow's right to recover her unpaid dower is not an actionable claim as defined in the Transfer of Property Act. Reference was made to Shib Lal v. Azmatullah [1896] 18 All. 165 and Arunachellam Chetti v. Subramaniam Chetti [1907] 30 Mad. 235. In the first of these cases, which was decided by a Full Bench of this Court in 1896, it was held that the term 'actionable claim,' as used in Section 180 of Act 4 of 1882, means a claim in respect of which a cause of action has already matured and which, subject to procedure, may be enforced by suit. The debt in question in that case was duo under a simple mortgage payable after a specified date. It was held that a mortgage debt, before it became payable, was not an actionable claim. The second case follows the first. In view of subsequent legislation, which materially altered the definition of 'actionable claim' both the above cases have become obsolete in relation to transactions entered into after 1900, when the Transfer of Property Act was amended. An actionable claim is now defined to mean:

a claim to any debt, other than a debt secured by mortgage of immovable property,...which the civil Courts recognize as affording grounds for relief, whether such debt be existent, accruing, conditional or contingent.

7. In the Act as it stood before the amendment Section 130 defined 'actionable claim' as:

a claim which the civil Court recognizes as affording grounds for relief...whether a suit for its enforcement is or is not actually pending or likely to become necessary.

8. A comparison of the two definitions makes it clear to us that there was room for argument before the amendment that a debt in respect of which no cause of action had arisen and which was not payable at the date of assignment did not amount to an actionable claim. The amended definition has excluded secured debts from the category of actionable claims on the one hand and included certain debts though they are 'accruing, conditional or contingent.' It is no longer possible to contend that a debt, which otherwise amounts to an actionable claim, is not such only because a cause of action in respect thereof has not arisen or the time for its payment has not arrived. Section 135 as it stood before the amendment and which was in question in Shib Lal v. Azmatullah [1896] 18 All. 265, was repealed. It is not necessary to pursue this aspect of the case further, as we are satisfied that a claim to unpaid dower debt is an actionable claim as now defined in Section 2, T.P. Act. This being so, and defendant 1 being a legal practitioner, Section 136, T.P. Act, is undoubtedly applicable. It forbids a legal practitioner among others to buy any actionable claim. The prohibition being absolute, any transfer in defiance of Section 136 is calculated to defeat its provisions and as such is void.

9. It was contended by the learned advocate for the appellant that the transaction evidenced by the deed dated 22nd September 1925 should not be viewed as (1) an assignment of dower debt by Mt. Kulsum Bibi, and (2) a transfer of her right to possession, taking the two separately, and that it amounted only to a transfer of the widow's right to possession in lieu of dower. The argument was that the claim to dower debt became merged in the widow's right to retain possession and had no separate existence as an assignable right. It was emphasized that the widow could not institute a suit for recovery of her dower and that her only remedy in respect of it was to remain in possession till she was paid off. We are unable to accede to this argument. A widow in possession of her husband's property, if she obtained it peacefully and without force or fraud, is entitled to retain it till her dower is paid. No exception can be taken to this statement of the law on the authorities of this Court. It implies the existence of the dower debt and. the liability of the heirs to pay it before they can take possession of their shares. There is nothing to prevent a widow from instituting a suit for her dower for the purpose of obtaining a simple money decree against all the assets of her husband, including the property in her possession, at least by surrendering possession of such property in her hands. We refrain from deciding that she must in all cases surrender possession as a condition precedent to her obtaining a decree against the assets of her husband; but we entertain no doubt that she can sue for her dower, if she is so advised and obtain a decree against the assets of her husband, subject to her claim being unaffected by the law of limitation. The right of a Mahomedan widow, who has entered into possession of her husband's property peacefully and without force or fraud in lieu of her dower debt has been held by this Court to be heritable so as to entitle her heirs to remain in possession until the debt is Satisfied : see Ali Bakhsh v. Allahdad Khan [1910] 32 All. 551. The possession of heirs who inherited net only her right to receive the dower but also her right to remain in possession is thus not open to question. It was also laid down in that case that a widow could transfer her right to possession, if she also assigned her right to receive the unpaid dower. One of the learned Judges observed that he knew of

no valid reason in law why also should not be Entitled to transfer her debt together with her right to continue in possession.

10. The heirs of the widow had in that case transferred part of their right to receive the dower and to possession of her husband's property to strangers, who were jointly in possession with them and were defendants in the suit brought by the heirs of the husband for possession. We are bound to follow the cases of this Court, even if we thought differently, but as already stated we take exactly the same view. If the right to receive dower and the right to remain in possession of certain property in lieu of such dower are vested in the same person he cannot be ousted by the heirs of the husband. If however the widow transfers her right to possession or the property itself, without transferring her right to receive lower the transferee cannot defend his fight to possession as against the heirs qua the letters' share. The ownership being vested in the heir of the husband, the only person who can stand between him and what belongs to him is the person who is entitled to the dower and to possession of the property in lieu thereof. In the present case defendant 1, who has not in law acquired the widow's right to receive dower, is not entitled to retain possession, which the widow could not transfer without validly transferring her right to receive the dower debt.

11. The result is that this appeal fails and is dismissed with costs, including counsel's fees in this Court on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //