Henry Richards, C.J. and Pramada Charan Banerji, J.
1. The facts out of which this appeal arises are as follows. One Zahur-ul-Hasan died on the 21st of February, 1904, leaving him surviving the plaintiff Chaudhri Nur-ui-Hasan his brother, and the defendant No. I, his daughter. (It was alleged by the defendant that he also left a widow Musammat Begam Bibi, but this the court below has found to be incorrect). The plaintiff complains that the defendant No. 1 has got more than her share of the property of the deceased Zahur-ul-Hasan, and he accordingly brings this suit praying that he may be put into possession of a moiety share in the property and awarded, mesne profits.
2. The court of first instance partially decreed the plaintiffs claim. The lower appellate court modified the decree of the court of first instance.
3. The only question which we have to decide in the present appeal is the following. It is stated that Musammat Tahir-un-nissa was peaceably in possession of the estate of her father, that she was entitled as heir to her mother to the latter's dower, and that just as her mother, had she lived and got peaceably into possession of her husband's estate, might have remained in possession of it until her dower was paid, the defendant as her heir has the same right. Dr. Tej Bahadur, on behalf of the appellant, quotes the ruling in Ali Bakhsh v. Allahdad Khan (1910) I. L. R. as All. 551. He says that the ease and the authorities which are mentioned in the judgment clearly establish the law that a widow who gets into possession is entitled to remain in possession until her dower debt is paid and he contends that the case is an authority that the right she had descends to her heirs.
4. It seems to us that there is a fallacy in the argument. Possibly the case would be authority for holding that if the widow had got peaceably into possession of her husband's estate after his death, the right which she had to remain in possession would descend to her heirs. But in the present case the widow never got into possession, (according to the finding she predeceased her husband) and her husband had not put her into possession. The very words in the judgment of their Lordships of the Privy Council in the case of Mussumat Bebee Bachun v. Sheikh Hamid Hussein (1871) 14 Moo. 1. A. 577 show that the widow has no legal right to go into possession. Her right is that if she gets peaceably into possession without force or fraud, she is entitled to remain in possession until her dower debt is paid. If the widow has no legal right to take possession, such a right cannot descend to her heirs, because she never had it.
5. In our opinion the view taken by the court below was correct and we dismiss the appeal with costs.