1. This appeal and the connected First Appeal No. 388 of 1924 arise out of two suits for recovery of possession brought by two sets of rival claimants against Musammat Zaib Jahan Begam the defendant in possession. It appears that Bakhsh Ali Beg was the last full owner of the property in dispute and on his death he left a widow Musammat Hazurunnissa, a son Yusuf Beg and a daughter Musammat Hayatunnissa. The son and the daughter survived the widow. Thus they got two-thirds and one-third share respectively in the estate of Bakhsh Ali Beg. Yusuf Beg died in 1920 leaving Musammat Zaib Jahan Begam as his widow and his sister as two of his heirs. The remaining share in his estate would go to the residuaries, if any, and failing them to the distant kindred. It is an admitted fact that on the death of Yusuf Beg no claim was put forward either by any residuary or by distant kindred, and the names of Musammat Zaib Jahan Begam and Musammat Hayatunnissa were recorded on specific shares.
2. In 1922 Musammat Hayatunnissa died and soon after her death the present plaintiff Muhammad Shoaib Khan obtained a sale-deed from Nur Beg and Yakub Beg who asserted themselves to be the residuaries of the deceased. Suit No. 39 of 1923 out of which this appeal arises was instituted by Muhammad Shoaib Khan. The other suit was filed by Afsar Beg and others who claimed to be the distant kindreds. It may be mentioned that in the Mutation Court Musammat Zaib Jahan Begam succeeded mainly on the ground of her possession.
3. The rival claimants of course did not admit the title of the opposite party and Musammat Zaib Jahan Begam denied the rights of both sides. The Court below has found in favour of Afsar Beg and others and held that they are the distant kindreds, and has found that the plaintiff Muhammad Shoaib Khan has failed to prove that his transferors were the residuaries of the deceased. It has further found that Musammat Zaib Jahan Begam is in possession of the estate left by Yusuf Beg, excluding of course her own share, in lieu of her dower debt. The amount of her dower debt has been found to be Rs. 5,000. Musammat Zaib Jahan Begam has submitted to the decree in favour of Afsar Beg and others but Muhammed Shoaib Khan has appealed in both the suits.
4. The main point which Muhammad Shoaib Khan had to establish was whether his vendors' grandfather Moghul Beg was the own brother of Haider Beg, the father of Bakhsh Ali Beg. There is admittedly no documentary evidence to prove or disprove this link in the pedigree. The case depends entirely on the oral evidence of the parties. The learned Subordinate Judge has heard all the witnesses himself except one lady who was examined on commission. It is, therefore, obvious that we should attach weight to his findings; but for certain remarks in his judgment which are based on an unsound reasoning we would not have taken the trouble to examine the evidence in such great detail as we have done. After criticising the evidence of the witnesses for the plaintiff the learned Judge has remarked that none of them is an independent witness. This remark, in our opinion, was unfounded as a good many of them are not connected with the plaintiff. Similarly his remark that none of the witnesses had any relations or connection with the family of Haider Beg, was perhaps a little too wide as Muhammad Ahsan was connected by marriage. Then again his remark that Muhammad Ahsan who was related to Musammat Hayatunnisa, his sister-in-law, was not also an independent witness, was not justified when he found that the plaintiff was in way related to Musammat Hayatunnisa. Lastly he has mentioned the names of the witnesses produced by the defendants in one breath and then simply stated that they satisfactorily prove both the pedigrees and are more reliable and respectable than the witnesses for the plaintiff. He has also added that their statements are supported by documentary evidence. The documentary evidence has no bearing on the question before us and does not touch the plaintiff's case. We have been led through the evidence of the witnesses for the defendants and we find it difficult to say that they are more reliable or more respectable. Having regard to these circumstances we have felt it our duty to examine the evidence for the plaintiff on whom the burden undoubtedly lay and to see for ourselves whether that evidence is sufficient to establish his case.
5. [His Lordship referred to the evidence and proceeded :].
6. No doubt there are some circumstances in the conduct of the defendants which might seem to strengthen the plaintiff's case, but his case must stand or fall by his own evidence. In a case of this kind when the deceased ancestors died a long number of years ago and when all the evidence that is forthcoming is of witnesses of small status it is not safe for us to differ from the view taken of that evidence by the learned Subordinate Judge who had the opportunity of seeing the witnesses and examining their demeanour. It may be that he has given some reasons which are not strictly sound, nevertheless his general impression of the evidence stands and that is against the plaintiff.
7. It is not necessary for us to consider the other point which was raised in this appeal, namely, whether Musammat Zaib Jahan Begam has made out her case that she is in possession of the property left by Yusuf Beg in lieu of her dower debt. The first argument is that at the time when the mutation of names was effected in her favour she did not profess to enter into possession in lieu of her dower debt and that, therefore, she cannot be allowed to retain the property on that plea. No authority has been cited before us which would show that unless and until the widow actually enters into possession of the estate on the express assertion that she is taking possession in lieu of her dower debt, she cannot subsequently be allowed to raise such a plea. We are inclined to think that the observation of their Lordships of the Privy Council in the case of Bebee Bachun v. Sheikh Hamid Hossein 14 M.I.A. 377 at p. 384 : 17 W.R. 113 : 10 B.L.R. 45 : 2 Suth. P.C.J. 531 : 3 Sar. P.C.J. 39 : 20 E.R. 828, makes it clear that 'the right of a widow is founded on her power 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.' In many subsequent judgments the learned Judges have been careful to use the words 'retain possession.' We may also refer to the case of Ali Bakhsh v. Alah Dad Khan, 6 Ind. Cas. 376 : 32 A. 551 at p. 562 : 7 A.L.J. 567, where Richards, J., remarked 'In my opinion, where a Muhammadan widow en-titled to dower gets quietly and peacefully into possession without fraud, she is entitled to retain possession until her dower debt is paid,' as also the remark of Tudbal, J., in the case of Ramzan Ali Khan v. Asghari Begam Ind. Cas. 405 : 32 A. 563 at p. 566 : 7 A.L.J. 14 that 'the 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 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.'
8. It seems to me that if the power to retain possession of the estate so long as her dower debt is not satisfied is exercised as a power of a creditor, the defendant Musammat Zaib Jahan Begam is entitled to say that her dower debt must be satisfied before she is dispossessed, provided of course she did not enter into possession unlawfully or with force or fraud. There is no evidence to show that there was any force exercised or any fraud practised. Musammat Zaib Jahan Begam was undoubtedly a co-sharer and her entering into possession even of the undivided whole cannot be called unlawful.
9. The next point urged is that on the death of Yusuf Beg she allowed Musammat Hayatunnissa's name to be recorded in the revenue papers and must, therefore, be taken to have given up possession of a part of the estate, The names of both were recorded jointly and the defendant has a finding of the Revenue Court in her favour that she was in possession of the whole even in the lifetime of Musammat Hayatunnissa. In any case she has now entered into possession both as an heir and on the claim of her dower. The mere fact that there was a contest in the mutation Court is immaterial for there was a similar contest in the case before their Lordships of the Privy Council referred to above I am, therefore, of opinion that this circumstance does not debar the lady from pleading that so long as her dower debt due from Yusuf Beg has not been satisfied, his heirs cannot dispossess her.
10. I would dismiss this appeal with costs.
11. I concur.
12. By the Court.--This appeal is dismissed with costs including in this Court fees on the higher scale.