1. This is a special appeal brought on a permission granted by a learned single Judge to appeal to a Division Bench. The case raised interesting questions of Mohammdan Law.
2. The plaintiff, who is the appellant before us, filed a suit for possession of certain properties and for mesne profits. The plaintiff's case was that she was the sister of one Mohammadi' Bibi, who had become a full owner of the properties in suit after the death of her husband. Hamid All and that subsequently Mohammadi Bibi, died leaving the plaintiff as her sole heir. The plaintiff laid claim to the properties which were in the possession of Mohammadi Bibi and she challenged the right of the defendants to have mutation of their names in respect of the said properties or to continue in possession thereof.
3. Mohammadi Bibi was, as noticed above, the wife of Hamid Ali and on Hamid Ali's death she appears to have retained possession of the properties in lieu of her dower debt. On Mohammadi Bibi's death, which event took place in the year 1944, the defendants got into possession over the properties in dispute in assertion of their right as heirs of Hamid Ali deceased.
4. The defendants raised three defences: first, that the disputed, properties did not belong to Mohammadi Bibi but belonged to her husband, secondly, that Mohammadi Bibi was in possession of the properties in lieu of her unpaid dower debt and not as owner, and lastly, that the plaintiff was not the sister of Mohammadi Bibi as she claimed to be and, therefore, she was not entitled to claim the properties as an heir even if the properties could be assumed to be those of Mohammadi Bibi, The defendants also raised a question of limitation and the question of limitation that was raised was to the effect that if the suit was on the basis of a title which rested on an assertion to hold the properties in respect of dower debt, then the suit would be out of time since the suit had been filed more than six months after Mohammadi Bibi's death, for it was admitted between the parties that the plaintiff never got into possession of the properties after Mohammadi Bibi's death.
5. The courts below came to the conclusion that Mohammadi Bibi was not the owner of the properties but that she held those properties in lieu of her dower debt, and secondly, that the plaintiff, though she was the sister of Mohammadi Bibi, she not being an heir to Hamid Ali, could not possibly recover possession of the properties from the defendants who were found to be the heirs of Hamid Ali. The courts below also found that the right to recover possession of the properties under the provisions of Section 9 of the Specific Relief Act was barred inasmuch as the suit had been filed beyond six months of dispossession, indeed there being no question of dispossession so far as the plaintiff was concerned the plaintiff could not justly seek relief under the provisions of Section 9 of the Specific Relief Act.
6. The questions that arose in the forefront for determination in order to enable one to adequately appraise the Tights of the parties to the suit and to properly adjudicate upon them were, first, what was the nature of the right which a widow had in respect of her husband's property qua a dower debt, and secondly, whether an heir of a widow who held the property of her husband in lieu of her dower debt could enforce that right to hold the property by a suit, when the heir of the widow did not obtain possession or when the heir did not continue to be in possession, of the property like the widow or to put it in other words, when the heir's possession was not, so to speak, a continuation of the possession of the widow over the property.
7. There is indeed high authority for the proposition that the widow's claim for dower does not amount to a charge on any specific property of her deceased, husband (see Ameer-oon-Nissa v. Moorad-oon-Nissa, 6 Moo Ind App 211 (PC). There is also high authority for the proposition that when the widow 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', then she in entitled as against the other heirs of her husband to retain such possession until her dower debt is paid up. For the former proposition reference may be made to Mt. Bebee Buchun v. Hamid Hossein 14 Moo Ind App 377 (PC) and Mt. Maina Bibi' v. Chaudhri Vakil Ahmad and for the latter proposition reference may be made to Mt. Ghafooran v. Ram Chandra Das : AIR1934All168 and Mt. Kulsum Bibi v. Shiam Sunder Lal : AIR1936All600 .
8. What is the nature of the right to retain possession came up for direct attention in the case of Mt. Bebee Buchun, 14 Moo Ind App 377 (PC) and their Lordships of the Privy Council said this:
'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 of Ahmed Hossein v. Mt. Khodeja, 10 Suth WR 369. Whatever the right may be called, it appears to be founded on 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'.
Their Lordships further pointed out in the aforementioned case that where the widow had obtained 'actual and lawful possession of the estates under a claim to hold them as heir and for her dower' she is entitled to retain that possession until her dower debt is satisfied, but this right, their Lordships never said, was a right which could be enforced even by the widow to obtain possession from the hands of the heirs, for the right which the widow had in respect of her dower debt was not a right which was a charge on any specific property of the husband.
9. In Ali Baksh v. Allahdad Khan, ILR 32 All 551 a Bench of this Court held that:
'the right of a Muhammadan widow who has entered into possession of her husband's property peacefully and without fraud in lieu of her dower debt is a heritable right and her heirs are entitled to remain in possession until the debt was satisfied.'
Their Lordships referred to a large number of decisions in that case for laying down the proposition which they did in Ali Baksh's case ILR 32 All 551. So that this proposition is now well entrenched in the Muslim Law, and indeed every text book on Mohammadan Law makes a reference to this principle.
10. In Tahir-un-Nissa Bibi v. Nawab Hasan. ILR 36 All 558 : (AIR 1914 All 186) another Bench of this Court, though one of the Judges was common to the two cases, held that,
''the right of a Muhammadan widow to whom dower is due, and who has got into possession of the property of her husband in lieu thereof, to remain in possession until her dower is paid may, perhaps, be descendible to her heirs; but no right to possession is descendible in a case where the widow herself never got possession at all'.
From this decision it follows that what the widow could not do her heir could not, i.e., what Muhammadi Bibi could not do, her sister, the plaintiff, could not.
11. The learned single Judge was, therefore in our view, perfectly right in holding that the plaintiff could not succeed in her suit because her suit was not a suit to enforce the right of a possessory title-holder, but the suit was in the nature of a right claimed by her to possess property as of right. As we pointed out earlier, the suit had been filed more than six months after the date on which Mohammadi Bibi died, and as we also pointed out, the plaintiff never got into possession of the property after Mohammadi Bibi's death but the heirs of Hamid Ali, namely the respondents, got into possession, therefore, the suit out of which this appeal has arisen could not be deemed to have been a suit to enforce a right enforceable under Section 9 of the Specific Relief Act because such a suit would be barred by limitation, and therefore if there was such a right, it was unenforceable in law.
12. On the findings, therefore, and the law, as we found it, the plaintiff's suit had been rightly dismissed.
13. We have seen no merits in this appealwhich we dismiss with costs.