1. This appeal arises out of a suit brought by the plaintiff as one of the heirs of Gulsher Khan for his share of the estate. The defendant Musammat Asghari Begum is the widow of the said Gulsher Khan. The latter pleaded that she was in possession of her deceased husband's property, that her dower debt remained undischarged, and she claimed to remain in possession until the dower debt was discharged. The lower appellate Court has found that the defendant's dower debt is Rs. 5,000 and it remains undischarged. It gave the plaintiff a decree conditional upon his paying the sum of Rs. 5,000.
2. The plaintiff appeals and claims that he is entitled to possession, notwithstanding that the dower debt remains undischarged. He relies upon the fact that when the defendant applied for mutation of names she merely claimed mutation as sole heir of her deceased husband and that, therefore, she was not lawfully in possession in such a way as to entitle her to maintain possession until her dower debt was paid. The lower appellate Court says in the course of its judgment: 'The mutation proceedings commenced within a very few months of the death of Grulsher Khan and 1 am not shown anything to the effect that it was ever even alleged that the lady had taken possession without the consent of the other heirs. On the other hand one of the plaintiffs expressly acquiesced in her position and her claims. There the plaintiffs have failed to discharge the burden which lay upon them to prove the unlawfulness of her possession. And in fact in all probability what happened was that the lady on her husband's death simply continued in possession of the properties, which for all practical purposes she possessed along with him, living with him as his wife, for Rustam Khan in the mutation proceedings spoke of her as having separate possession.'
3. The appellant relies on the ruling in Amanat-un-nissa v. Bashir-un-nissa 17 A. 77. In that case the learned Judges after referring to the case of Musammat Bobee Bechun v. Sheikh Hamid Hossein 14 M.I.A. 377 say as follows: 'So far as we are aware neither a Muhammadan widow nor any other creditors can give themselves a lien by taking possession, without the consent, or the authority of the persons entitled, of property to the possession of which those other persons are entitled. If a Muha7Tnnadan 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 a lien, for her dower, she cannot obtain that lien by taking possession, adversely to the other heirs, of property to the possession of which they, and she in respect of her share in the inheritance are entitled.' The appellant contends that inasmuch as it is not shown in the present case that the widow had been placed in possession either by her husband in his life-time, or by the heirs after his death, she has no right to retain possession, even though her dower debt remains undischarged. With all due respect to the learned Judges who decided the case to which I have just referred, I do not think that proper regard was paid to the facts in the case of Musammat Bebee Bechun v. Sheikh Hamid Hossein 14 M.I.A. 377. It appears from the report of that case (at page 382) that the widow had got mutation of names in spite of the opposition of the other heirs, and (at the top of page 384) their Lordships of the Privy Council say that there was no agreement on the part of the husband to pledge his estate for the dower. Accordingly, in my opinion, it is not correct to say that unless a Muhammadan widow has obtained possession either by contract with her husband or with the consent of the heirs, she cannot be lawfully in possession so as to give her a right to retain possession until her dower debt is paid. It seems to me that if the widow obtains possession peacefully and quietly and without fraud, she is entitled to remain in possession until her dower debt is discharged, subject to her liability to account for the profits that she has received whilst so in possession'. In my opinion this is the law as laid down by their Lordships in the case to which I have just referred.
4. In the case of Amani Begum v. Muhammad Karimullah Khan 16 A. 225, a learned Judge of this Court points out that the possession of the widow, which entitled her to remain in possession pending the payment of her dower, does not depend upon the consent of the co-heirs. At page 227 the learned Judge says: I can find no authority for the proposition that the widow's possession is unlawful unless she has got such possession with the consent of the other co-heirs. ' The learned Judge then goes on to refer to the case of Musammat Bebee Bechun v. Sheikh Hamid Hossein 14 M.I.A. 377.
5. In the case of Amur-oon-Nissa v. Moorad-oon-Nissa 6 M.I.A. 211, which is quoted in the case of Musammat Bebee Bechun v. Sheikh Hamid Hossein 14 M.I.A. 377, the widow never professed to have been put into possession during her husband's life-time, or with the consent of the co-heirs. he latter, (i.e., the co-heirs) did not even admit that she had been the wife of the deceased.
6. In my opinion the view taken by the learned Judge was correct except in one particular. He has ascertained the dower' debt as being Rs. 5,000 and he has granted a decree to the plaintiff conditional upon his paying this sum. I think that having regard to the decision of their Lordships of the Privy Council, the widow was bound to account for the profits received while she was in possession. However, the value of the estate is not great and the appellant has not taken any objection to this part of the decree in his memorandum of appeal. The plaintiff never undertook to pay the dower and under all the circumstance. I do not think that the ends of justice require that the case should be sent back to ascertain the profits received by the widow while in possession. I would dismiss the appeal.
7. I fully concur. It seems to me that (he balance of authority is in favour of the view that a widow, who from the nature of things on the death of her husband in many instances finds herself in possession of some, if not of the whole, of her husband's estate, is entitled to hold that estate against the other heirs until her claim to dower is satisfied, without being asked to show either consent on their part or on that of the deceased husband. She has, of course, to account for the income of the estate to the other heirs. The nature of her right seems to be referable to the rule of Muhammadan law which was stated by the law officers in Amiroonnissa v. Moorad-oon-Nissa 6 M.I.A. 211 viz., that any creditor of a deceased Muhammadan was entitled to help himself to any money or chattels not exceeding the value of his claim, or to sell lands of the deceased and re-pay himself out of the proceeds. This rule of Muhammadan law, no doubt, has been modified and is not fully applicable in the present age but the widow's rights to retain possession of her husband's estate in lieu of her dower has sprung from this and is, therefore, not dependent on the consent of her co-heirs.
8. The order of the Court is that the appeal will be dismissed with costs including in this Court fees on the higher scale.