1. The sole question for decision in this appeal is whether the heirs of a Muhammadan widow, who has lawfully obtained possession of her husband's estate in lieu of her dower, are entitled to continue holding that estate after her death, until the dower debt has been discharged.
2. The present plaintiffs-appellants are the heirs of one Musammat Zahuran. This lady and Musammat Saliman were the wives of one Izzat Khan or Izzat IJllah, who died on 29th August 1905, leaving as his heirs the two widows (who as heirs were entitled to a 1/8th share each) and one Alladad Khan (who was entitled to 6/'8ths). On his death the widows each took possession of a half share. Musammat Zahuran died in December 1906 and the present plaintiffs as her heirs applied for mutation of names. They were opposed by Alladad Khan but defeated him in the Revenue Court. He then transferred his rights as heir to defendants Nos. 2 to 4 and so the plaintiffs have now sued for a declaration of their right to retain possession of the 3/8ths share in the estate of Izzat Khan of which the widow has taken possession (over and above the l/8t.h share which she took as heir) until the satisfaction of the dower debt due to her.
3. Amongst other defences, it was pleaded that the widow had not obtained possession lawfully and that the dower debt was only Rs. 200 and not Rs. 2,000 but the lower Courts have not gone into the merits of the case. On the strength of the ruling in Hadi Ali v. Akbar Ali 20 A. 202 and Muzaffar Ali Khan v. Parbati 29 A. 640 : A.W.N. (1907) 221 : 4 A.L.J. 501, they have held that even where a Muhammadan widow has lawfully obtained possession in lieu of dower, her right to that possession is purely a personal right and is neither heritable nor transferable and; therefore, the present plaintiffs, even on the facts as alleged by them, are not entitled to retain possession of the 3/8fchs share of Izzat Khan's estate. The correctness of this decision and of the above-mentioned rulings is questioned on appeal. It is conceded by both parties that the dower debt stands in no better position than that of any other unsecured debt of the deceased husband. It is further conceded that if she- lawfully obtains possession of that estate in lieu of her dower debt, the widow is entitled, as against the other heirs of her deceased husband, to hold it until the dower debt has been discharged either from the usufruct or by payment on the part of the heirs. She is, of course, liable to account to the heirs for the profits thereof. This is also clearly laid down by their Lordships of the Privy Council in the case of Musammat Bebee Bechun v. Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113. The solution of the question before us, however, necessitates the ascertaining of the true nature of the widow's possession, when she thus lawfully takes her husband's estate into her hands. Is it a mere personal right to retain possession for her own life-time only subject to payment of the balance of the dower debt at any time before her death or is it a right to possession which continues to her heirs after her death, subject to the conditions as to payment? In the case of Amanat-un-nissa v. Bashir-un-nissa 17 A. 77, it was laid down that a Muhammadan widow-is lawfully' in such possession where she has obtained it by contract with her husband, by his putting her into possession, or by her being allowed with the consent of the heirs on his death to take possession (in lieu of dower) and thus to obtain a lien for her dower debt. Though I do not perhaps accept this definition as a correct interpretation of the word lawfully as used by their Lordships of the Privy Council in their judgment in the case of Musammat Bebee Bechun v. Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113, (sic) even from this it would seem to follow that the property is in her hands a security for .he debt due to her and in the absence of contract or circumstances pointing to the contrary, she would in law have a right to transfer her debt together with its security, and her heirs would be entitled to inherit both. As to the nature of the widow's possession, it was laid down in Mohammad Asad Ullah Khan v. Musammat Ghaseea Beebee 1 Agra 150, that she was temporarily in possession as a security for the payment of her dower claim. That was a case in which the widow had alienated the property itself and it was held that the heirs could sue to avoid the transfer, 'it is clear' (runs the judgment) 'that they' (the heirs) ''may be entitled to recover possession by payment of the debt, during her life-time or on her death; and that she is wholly incompetent to make a gift of what, although temporarily in ..her possession as a security for the payment of her dower claim, does not belong to her but to them.' It must be carefully noted that what the widow had alienated was not her debt with its security but the property itself and that as to the rights of the other heirs it is clearly laid down that they are entitled to recover possession only on payment, during her life-time or on her death.
4. In the case of Kamar-un-nissa Begam v. Mohammad Hasan 1 Agra 287, it was held that the widow was not competent to alienate permanently more than her own share 1/8th by inheritance. As to the balance of the estate the learned Judges remarked: She holds it as security for the payment of her dower.... At the same time we are satisfied that as the property in suit formed a portion of Umda Begam's husband's estate, the whole of which was in her possession as security for her dower, the widow would have had power to mortgage such hypothecated interest and that during her life-time the defendant, except by payment of the dower, could not have released the mortgage.'
5. The above two decisions are of 1866 and go to show that the widow's security for her dower is transferable though she has not the power to transfer the actual property.
6. In the year 1870 in the case of Musammat Wahid-un-nissa v. Musammat Shoobratan 6 B.L.R. 54 : 14 W.R. 239, it was held that under Muhamrnadan Law there is no hypothecation without seisin but a creditor, whether widow or any other, if in possession of the husband's property with the consent of the debtor or his heirs, might hold over until the debt is paid and that cases cited to show that the widow had a right to hold until her dower was paid off, proceeded on this principle. This was held on the basis of a doctrine quoted from Macnaghten's Muhammadan Law.
7. In the case of Musammat Bebee Bechun v. Sheikh Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113, a decision of 1871, their Lordships of the Privy Council remarked: 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 the judgment of the High Court in a case of Ahmad Hussain v. Musammat Khadija 10 W.R. 369. Whatever the right may be called, it appears to ' be founded on the power of 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, the subject of the claim, for the profits received.' Their Lordships, while not deeming it necessary themselves to define the right of the widow in possession, point out that it had been held to be a lien in the strict sense of the word. In this case it isworthily of note that the widow took possession without the consent of the other heirs.
8. In the case of Bazayt Hossein v. Dooli Chand 5 .I.A. 211 : 4 C. 402, the report shows that the High Court (Phear and Ainslie, JJ.) remarked as follows : 'No doubt if she is in possession of the property, she in is entitled to assert a lien' upon it in respect of her own debt against the other heirs and to pay herself her own debt before she pays the debt of anyone else'. In the case of Aziz Ullah Khan v. Ahmed Ali 7 A. 353, it was held by a Bench of this Court (Oldfield and Mahmud JJ.) that the heirs of the widow in possession in lieu of dower succeeded to her estate including the dower debt and as such were entitled to continue in possession of the deceased husband's property like the widow, until the dower debt was satisfied. This case is parallel to the one now before us and is a ruling in point. The judgment was delivered by Mr. Justice Mahmud. It is a clear ruling to the effect that the widow's right to retain possession is at least heritable.
9. On behalf of the respondent, it is urged that the widow's right to possession is purely a personal right and that it ceases on her death. The argument has not been based on any principle or rule of Muhammadan Law but reliance is placed on certain rulings.
10. In Ali Mohammad Khan v. Azizullah Khan 6 A. 50, it was remarked in the Judgment : The right to dower is personal to herself .and does not pass to a purchaser of the estate for dower stands on no higher footing than any other debt.'' Then quoting from the judgment of the Privy Council in Bebee Bechun v. Himid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113, noted above, the officiating Chief Justice remarks: But this is something short of her having an actual lien upoli it and we are unaware that their Lordships of the Privy Council have ever made any such declaration. Indeed in Bazayat Hossein v. Dooli Chand 5 .I.A. 211 : 4 C. 402, it was ruled that the creditor ot a deceased Muhammadan whether in respect of dower or otherwise cannot follow his estate into the hands of a bona fide purchaser for value to whom it has been alienated by the heir-at-law whether by sale or mortgage.'
11. In this case the widow had transferred the estate of her husband itself. She had not transferred her dower debt and with it the security that she held. The dower debt was her own personal property and by selling her husband's property she did not thereby transfer her right to the dower bebt. Therefore, it was correctly held that her alienee could not plead as against the heirs who sued for possession that the dower debt was still unpaid. The decision on the facts was correct. It might have been otherwise had the widow only sold her dower debt together with her security for the same. In the case of Bazayat Hussain v. Dooli Chand 5 .I.A. 211 : 4 C. 402, the widow was not in possession of the estate at all. The son of the deceased as heir took possession and transferred to others. Subsequently the suit-for dower was brought and a decree obtained and it was sought to charge the estate in the hands of a bona fide transferee. This clearly could not be allowed. The right to dower is, no doubt, the personal property of the widow and ordinarily stands on the same footing as any other unsecured debt but this decision is no satisfactory authority against the widow's right to retain possession once it has boon lawfully obtained as security for her dower.
12. The decision must be read in the light of the facts of the case and it merely amounted to this that the widow had no power to alienate the estate itself. This case was mentioned and the ruling followed in Ajuba Begam v. Nazir Ahmed A. W. N. (1890) 115 by Mr. Justice Mahmud. Here the widow was not in possession of the half house, in lieu of dower. She made ail out and out transfer of an isolated portion of her husband's estate and it was ruled that she could only convey her rights and interests by inheritance from her husband. In respect to the decision in Ali Mohammad Khan v. Azizullah 6 A. 50,Mr. Justice MahmudYemarked: 1 may say that I agree in the general effect of the ruling although I may not be prepared to adopt every step of the reasoning upon which the ruling proceeds. It is important to point out that in that case although the property had been sold by the widow, there was nothing to show that she had also conveyed to the vendee her right of dower.' Attention was called to the learned Judge's own judgment in Azizullah Khan v. Ahmed Ali Khan 7 A. 353 noted above and he pointed out that there was nothing inconsistent between the two rulings and that the position of the heirs succeeding to the estate of a Muhammadan widow was very different to that of a purchaser from her of an isolated bit of her husband's estate. The latter (the purchaser), he pointed out, was not her representative for her claim to dower because it is a money claim by itself.'
13. The decision in the case of Ali Muhammad Khan v. Azizullah Khan 6 A. 50 does not advance the respondent's argument in any way whatever. It does not establish that the right to retain possession lawfully obtained is a personal right which ceases on her death and is not transferable.
14. The case of Hadi Ali v. Ahbar Ali 20 A. 262 does, however, in some degree support the respondents contention. The facts were as follows: One Kareem Bakhsh died leaving a widow and three daughters, a nephew (son of his brother) and a daughter's son, Hadi Ali. The widow took possession of the estate in lieu of dower and then gifted a portion of it to Hadi Ali. The nephew thereupon sued to obtain possession of his share in the estate as against the widow and Hadi Ali. The Court of first instance decreed the claim. The widow and Hadi Ali both appealed in respect to the portions of the estate in their separate possession. Pending the appeal the widow died and her heirs not being brought on the record her, appeal abated. Hadi Ali's appeal was decreed.' On second appeal to this Court, single Judge ruled as follows: 'As regards the property which is the subject of the alleged gift to Hadi Ali, the lower appellate Court has found that Haron Bibi was in possession of it in lieu of dower. She was not entitled to transfer that property by way of gift or otherwise and the gift was not legally valid. Having been put into possession in lieu of dower, she was entitled to continue in possession so long as her dower debt remained unpaid; that was a right personal to her and became extinct on her death. Hadi Ali is not entitled to remain in possession of the estate left by Kareem Bakhsh.'
15. Now in so far as the Court held that the widow had no power to gift the actual property to Hadi Ali, the decision, in my opinion, was perfectly correct. The property did not belong to the widow. She merely held it as security for her dower debt and, therefore could not give it (the property) to he] grandson. The case was similar in its aspect to that of Ali Mohammad Khan v. Azizullah Khan 6 A. 50 and also Ajuba Begam v. Nazir Ahmed A.W.N. (1890) 115 mentioned above, in the latter of which Mr. Justice Mali mud pointed out that these decisions were not inconsistent with his decision reported in the case of Azizulluh Khan v. Ahmed Ali Khan 7 A. 353, wherein he held that the widow's right to retain possession, lawfully obtained, was heritable. But I cannot agree with the reasoning of the learned Judge when he says that the widow's right to continue in possession was a right personal to herself and became extinct on her death.
16. On Letters Patent Appeal, this decision was upheld, reliance being placed on the two rulings mentioned above in the cases of Ali Muhammad Khan v. Azizullah Khan 6 A. 50; and Ajuba Begum v. Nazir Ahmed A.W.N. (1890) 115 and it was held that the widow's lien was a purely personal one and became extinct on her death not surviving to her heirs. The judgment is very brief. No reason whatever is given for holding that the widow's right to continue in possession became extinct on her death and did not survive to her heirs. Though reliance is placed on Mr. Justice Mahmud's decision in Ajuba Begum v. Nazir Ahmed A.W.N. (1890) 115, no mention is made either of his ruling in the ease of Azizullah Khan v. Aimed Ali Khan 7 A. 353 nor of the clear distinction which he draws in his judgment between the circumstances of the case then before him and those of the case reported in the case of Azizullah Khan v. Ahmed Ali Khan 7 A. 353. With due deference to the learned Judges, I cannot see that he held that the widow had a lien which did not survive to her heirs Moreover in this case, it was not even necessary to go so far as this in order to decide the case. Hadi Ali was the donee, not of the widow's right to the dower debt, nor of her right to continue in possession until that debt was paid. The widow had simply given to him property which did not belong to her, over and above her share inherited from her husband. There is one other case on which the arguments for the respondents have been based, Muzaffar Ali Khan v. Parbati 29 A. 640 : A.W.N. (1907) 221 : 4 A.L.J. 501. The decision of the Privy Council in Bebee Bechun v. Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113 is mentioned in the judgment and the passage quoted above was also quoted. The learned Judges remarked: It will be seen that this is a much stronger case than the one before us. The lady was in actual and lawful possession (a status to which Musammat Ashraf-un-Nissa, it is admitted, never attained, possession having remained all along with the mortgagee) and yet the utmost right assigned to her is that of a creditor to hold certain property until her debt is satisfied with the liability to account to those entitled to the property. Such a right could never be transferable, It is nothing . more than an interest in property restricted in its enjoyment to the owner personally and the transfer of any such right is prohibited by Section 6, Clause (d), of the Transfer of Property Act IV of 1882. Furthermore we have held in this Court that such rights are neither transferable nor heritable. See the decision in Hadi Ali v. Akbar Ali 20 A. 202.' In the first place as the above quotation itself shows, the widow in this case was not and never had been in possession at all of the estate in question That had remained all along with the mortgagee to whom the husband had given possession. It was, therefore, hardly necessary for the purposes of the case to decide the question of the nature of the possession of a Muhammadan widow lawfully obtained in lieu of dower.
17. In the next place, it is based on the ruling in Hadi Ai v. Akbar Ali 20 A. 202, which has already been discussed. Thirdly no reason beyond this ruling is given for holding that such a right could not be transferable and is nothing more than an interest in property-restricted in its enjoyment to the owner personally.' Neither Mr. Justice Mahmud's decision in the case of Azizullah Khan v. Ahmed All Khan 6 A. 50 nor any of the older ruling-s are mentioned or discussed either in this judgment or in that of Hadi Ali v. Akbar All 20 A. 202. No grounds are given for holding that the enjoyment of this right to continue in possession is restricted to the widow personally and that it ceases with her existence. The right is one which the widow secures as a creditor for her dower and it is one to continue holding until her debt is satisfied. Such a right is property and prima facie in the absence of any law or contract to the contrary, it is property which is both heritable and transferable. The older rulings quoted above all tend one way, viz., that the widow holds the property in such circumstances as security for her debt and that she has a lien upon it and that her right to continue in possession is a transferable interest, [Vlde, Muhammad Asad Ullah Khan v. Musammat Ghaseea Bibi 1 Agra 150 and Kamar-un-nissa Begum v. Muhammad Hussain 1 Agra 287]. In the former of these two cases, it was laid down that in order to obtain possession the heirs must pay the dower debt either during her life-time or 'on her death '. The widow's possession, it has been held, is analogous to that of a mortgagee or a pawnee. No text, no rule of law, Mohammedan, English or Indian has been placed before us to support the contention that this right dies with the widow and that she has no power to transfer both her dower debt and its security. This right must not be confounded with a right to sell the actual property which has often been claimed and as often disallowed. Thus once lawfully admitted to possession her right is a lien, subject, however, to a liability to account for the profits. I know of no valid reason in law why she should not be entitled to transfer her debt together with this right to continue in possession. Equally there is no justice in holding, in the absence of contract to the contrary, that her heirs, who inherit the dower debt, do not also inherit with it all the security for that debt. It is easy to conceive a case in which a widow had held}, such possession for many years over and above the period of limitation within which she must sue for her dower debt, and has then died without the debt, being fully discharged. If the heirs are not entitled to inherit, they lose all means of recovery of the balance of the debt due. Only in very special circumstances could Section 20 of the Limitation Act assist them, of course, if the widow agrees with her husband's other heirs to hold the property only for her life-time in full satisfaction. Of the debt, the latter is extinguished on her death. In the absence of any Such contract, in my opinion, the widow's heirs are entitled to inherit the right to continue in possession until her dower debt is satisfied and I fully agree with the ruling of Oldfield and Mahmud JJ., in Azizullah Khan v. Ahmad Ali Khan 7 A. 353. I would, therefore, admit the appeal.
18. I concur. Their Lordships of the Privy Council in the case of Musamnat Bebee Bechun v. Sheikh Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113 have laid down that a Mahammadan widow entitled to dower, who has lawfully and without force or fraud obtained possession of her husband's property, is entitled to retain possession until her dower debt is satisfied subject to their liability to account for the profits received. If the widow has such a right I can see no reason why it should not descend to her heirs. The meaning of the expresson in (heir Lordships judgment lawfully in possession,' does not clearly appear. In the case of Amanat-un-nissa v. Bashi-un-nissa 17 A. 77, the following passage occurs:
19. If a Muhammadan widow entitled to dower has not obtained possession lawfully, that is, by contract with her husband, by his putting her into possession or by her being allowed with the consent of the heirs on his death to take possession in lieu of dower and thus to obtain alien for her dower, she cannot obtain that lien by taking possession adversely to the other heirs. ' I think that a perusal of the report of the case of Musammat Bebee Bechan v. Sheikh Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113 negatives the assumption that a Muhammadan widowcannot be lawfully in possession' unless by contract with her husband or with the consent of the heirs. I do not understand bow such a widow can be said to obtain a ' lien' by contract. If the widow's right is only by virtue of a contract with her husband or with the other heirs, her right must be limited entirely by the terms of the contract. It is not alien.
20. In my opinion when a Muhammadan widow entitled to dower gets quietly and peacefully into possession without fraud, she is entitled to retain possession until her dower debt is paid, subject (as their Lordships have laid down) to her liability to account for the profits received. I am also of opinion that if the widow, being so in possession dies, her right descends to her heirs.
21. The appeal is allowed, the decrees of the Courts below are set aside and the case is remanded through the lower appellate Court to the Court of first instance for decision on the merits. Costs here and hitherto will be costs in the cause.