Abdur Rahim, Kt. Offg. C.J.
1. The first question asked by this reference is whether a Muhammadan widow, who is lawfully in possession of her husband's property after his death but not by virtue of any agreement with his other heirs, is entitled to retain such possession until the dower due to her has been paid or satisfied, before the property in her possession is divided among the heirs.
2. In the Allahabad and Calcutta High Courts there have been a long series of decisions, some of them conflicting with the others, on the subject of a Muhammadan widow's lien for dower, but in this Court the question is practically bare of authority. There are also four decisions of the Privy Council in this connection, the latest being in the case of Hamira Bibi v. Zubaida Bibi (1916) I.L.R. 38 All. 581 (P.C.). Our main task is to ascertain whether in the course of their judgment in the last case the Judicial Committee wanted to confirm the view of the law expounded by the Chief Justice, Sir John Edge, of the Allahabad High Court in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77, restricting the lien of the widow to cases where she had entered upon possession in order to satisfy her dower debt under an agreement with her husband or her husband's other heirs, or the view of the law expounded in Amani Begam v. Muhammad Karim-ullah I.L.R. (1894) All. 225, Ramzan Ali Khan v. Asghari Begam I.L.R. (1910) All. 563, Sahebjan Bewa v. Ansaruddin I.L.R. 38 Cal. 475; where it was held that the lien of a widow in possession does not depend upon any such agreement but upon the fact of her being in possession of her husband's property for the satisfaction of her dower provided she obtained possession of the property in question lawfully and without. force or fraud.
3. There is no difficulty as to the interpretation of what their Lordships of the Privy Council actually say in Hamira Bibi v. Zubaida Bibi I.L.R. (1916) All. 581. The passage runs thus:
Naturally the idea of payment of interest on the deferred portion of the dower does not enter into the conception of the parties. But the dower ranks as a debt and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that if she lawfully, with the express or implied consent of the husband, or his other heirs, obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfied. This is called the widow's lien for dower, and this is the only creditor's lien of the Mussalman law which has received recognition in the British Indian Courts and at this Board.
4. In that case, however, the only question for determination before the Judicial Committee was whether the widow in possession was entitled to any interest or compensation in respect of her unpaid dower and the arguments on either side were concentrated on that point. So far as it appears, the widow's right to remain in possession until her dower was satisfied was not disputed, at any rate before the Privy Council, and the fact in that case was that she had been allowed by the other heirs to take or remain in possession of the whole estate to satisfy her claim for dower. Ameer-oon-Nissa v. Moorad-oon-Nissa (1855) 6 M.I.A. 211, Mussumat Beebee Bachun v. Sheik Hamid Hossein (1871) 14 M.I.A. 377, Sahebjan Bewa v. Ansaruddin I.L.R. (1911) Cal 475 and Ramzan Ali Khan v. Asghari Begam I.L.R. (1910) All. 563, were all cited, in connection with the point under consideration of the Judicial Committee, as to the widow's right to interest or compensation in respect of her unpaid dower, and it seems to be clear from the report that their Lordships' attention was no-where directed to any question relating to the circumstances under which the widow's right to remain in possession for satisfaction of the dower debt arose. Nor is there anything to show that they wanted to settle the controversy raised in India with respect to this question by the decision in Amanat-un-nissa v. Bashir-un nissa (1895) I.L.R. 17 All. 77. As I shall presently point out, there is a clear preponderance of decisions in India opposed to the view enunciated in this Allahabad case, but which finds prima facie support from the passage in the judgment of the Privy Council above cited, if we were to take it literally and without reference to the question which the Board was actually called upon to decide. In the absence of anything in that judgment to indicate that their Lordships intended to determine the question whether a Muhammadan widow who obtained possession of her husband's estate lawfully and without force or fraud in lieu of her dower is not entitled to retain her possession until her claim is satisfied, unless she had obtained such possession with the consent of her husband or of his other heirs, we shall not be justified in fastening upon the literal language of their observations, if we found that the view was opposed to Muhammadan Law as expounded in the British Indian Courts in a chain of decisions ranging over half a century with one or two solitary exceptions, at least since the case of Ameer-oon-nissa v. Moorad-oon-nissa (1855) 6 M.I.A. 211 which was decided by the Privy Council in 1855. In that case it was found that the husband did not charge the estate by the deed of dower; it was, nevertheless, held that the widow had a lien on her deceased husband's estate as being hypothecated for her dower and could either retain the property for the amount of her dower or alienate part of the estate in satisfaction of the claim. The parties in that case were Shiahs and, so far as the widow's right to alienate part of the estate in satisfaction of her claim to dower is concerned, the Shiah law differs to some extent from the Sunni law. But the case is of importance in so far as it appears that the heirs of the husband could not have consented to the widow obtaining possession or remaining in possession, as they denied her status altogether. Yet it was held that she was entitled to remain in possession of her husband's property for the satisfaction of her dower.
5. In Mussamat Janee Khanum v. Mussamat Amatool Fatima Khanum (1867) 8 W.R. 51, which was a Sunni case, it was held that a widow in possession of her husband's property under a claim of dower, had a lien as against his other heirs; as regards money belonging to the estate of her husband she might appropriate it to her claim for dower and as regards other property she was entitled to a lien as security for the dower debt. In that case the widow had been deprived of her possession by a decree of Court in a suit by the heirs. It was, nevertheless, held that she still retained her lien. The next is a decision of Sir Barnes Peacock, C.J., and Jackson and Macpherson, JJ., in Woomatool Fatima Begum v. Meerunnissa Khanum (1868) 9 W.R. 318, which is relied on by the Privy Council in Hamira Bibi v. Zubaida Bibi (1916) I.L.R. 38 All. 681 (P.C.) in support of the proposition that the widow in possession is entitled to a reasonable interest on the dower debt or compensation if she is to render an account of the rents and profits. There it was laid down, after a consideration of the authorities on Muhammadan Law including the Serjjyah and Macnaghten's Precedents of Marriage, etc., Case XXIV and Macnaghten's Precedents of Debts and Securities, Case X, that the widow of a Mussalman in possession of her husband's estate, under a claim of dower, has a lien upon it, as against those entitled as heirs and is entitled to possession of it as against them until her claim for dower is satisfied. This right is not founded on any agreement with her co-heirs, or their consent, or the consent of her husband obtained in his life-time. This is made specially clear from Macnaghten's case XXIV cited in the judgment. The learned Judges also cite a number of decisions including the judgment of the Privy Council in Ameer-oon-nissa v. Moorad-oon-nissa (1855) 6 M.I.A 211, above referred to. They were quite conscious of the fact that that was a case between Shiahs, for they go on to point out that:
according to the Shiah doctrine, the creditor has power to sell landed property to an amount sufficient to satisfy the dower without recourse to the public authorities;
according to the Sunni doctrine, the creditor has simply a lien on any land of the debtor, and cannot take them over so as to acquire an absolute title in satisfaction of the dower, without the consent of the hairs, or a decree of Court.
7. This statement of the law clearly negatives the proposition that the consent of the heirs is necessary to create a widow's lien for dower.
8. In Ahmed Hossein v. Mussumat Khodeja (1868) 10 W.R. 369, Sir Barnes Peacock, C.J., held, again sitting with Dwarkanath Mitter, J., that the widow was entitled to a lien for whatever dower remained due to her and that the heirs could not recover the property so long as any portion of the dower remained unsatisfied.
9. So far as one can gather he did not rest the widow's right on the fact of her being in possession. In any case that judgment does not in the least suggest that the widow, in order to acquire a valid lien, must have entered into possession with the consent of her husband's hairs. The same deduction is to be made from an earlier judgment of Sir Barnes Peacock reported on the margin of the above case, viz., Syud Atahur Ali v. Altaf Fatima (1868) 10 W R.370, Note. The case of Meer Meher Ally v. Mussamut Amanee (1869) 11 W R. 212 also recognized the Muhammadan widow's lion for dower over the property of which she was in possession in the sense, that the lien must be satisfied like that of any other creditor before the estate is distributed among the heirs, not that she was entitled to any preference over the other creditors.
10. In the Allahabad High Court the question was fully considered in Syud Imdad Hossein v. Musumat Hosseinee Baksh (1870) 2 N.W.P.H.C.R. 327, printed as an appendix to Balund Khan v. Musumat Janee (1870) 2 N W.P.H.C.R.319, and the learned Judges then followed the ruling of Sir Barnes Peacock in Ahmed Hosssein v. Mussumat Khodeja (1868) 10 W.R., 369 and also on an earlier decision of the Allahabad High Court.
11. The Judicial Committee considered this question in a case arising among Sunnis in Mussumat Beebee Bachun v. Sheikh Hamid Hossein (1871) 14 M.I.A. 377. There, no agreement by the husband to pledge the property for dower was proved and the widow was put in possession of the husband's estate after hi3 death by the Collector, in spite of the opposition of the other heirs. Their Lordships did not find it necessary to state whether this right of the widow's lien for dower was a lien strictly so called, although it was so stated in the judgment of Sir Barnes Peacock above referred to, but they say that 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, subject to the claim for the profits received. They did not say that it was necessary for the widow's right to arise that she should have obtained possession of the property with the consent of or under an agreement with her deceased husband or his heirs; if that were a necessary condition her claim would not have been sustained upon the facts though the co-heirs did not for a long time after she obtained possession take any steps to dispossess her. It is also significant that they relied on their previous ruling in Ameer-oon-Nissa v. Moorad-oon-Nissa (1855) 6 M.I.A. 211 in support of the law as they enunciated.
12. Then reverting to the Allahabad High Court, in Ali Muhammad Khan v. Azizullah Khan I.L.R. (1883) All. 50, this lien was recognized although the learned Judges were of opinion that it was a personal right and did not pass to the purchaser of the estate from the widow. In Azizullah Khan v. Ahmad Ali Khan I.L.R. (1885) All.. 353, Mahmood, J., held that a Muhammadan widow lawfully in possession of her husband's estate occupied a position analogous to that of a mortgagee, whose possession could not be disturbed until the dower debt had been satisfied and that on the widow's death if the dower remained unsatisfied her heirs were entitled to succeed her in the possession of the property. Mr. Justice Mahmood required as a condition of validity of the widow's right that she should be lawfully in possession, following in this connection the rulings of the Privy Council and the Allahabad High Court and not that she should have obtained possession with the consent of her husband's heirs. This was in 1885. In Amani Begam v. Muhammad Karim-ullah I.L.R. (1894) All 225, the law was enunciated to the same effect in a carefully considered judgment upon a review of the more important rulings.
13. The first clear note of dissent, so far as I can see, was expressed in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1894) All. 77, referred to above.
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 Muhammadan widow entitled to dower has not obtained possession lawfully, that is, by contract with her husband, by 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. It would be otherwise if the heirs consented to her taking possession in order to acquire a lien.
15. In no other case could the widow's possession be said to have been lawfully obtained within the meaning of the judgment of the Privy Council in Mussumat Beebee Bachun v. Sheik Hamid Hossein (1871) 14 M.I.A. 377.
16. The learned Judges say that their conclusion is supported by the case of Mussamat Wahid-un-Nissa v. Mussumat Shubrattun (1870) 6 B.L.R. 54 [which was approved by their Lordships in Syed Bazaryet Hossein v. Dooli Chund (1878) L.R 5 IndAp211], and also by the decisions of the Allahabad High Court in Mussamat Meerun v. Mussumat Najeebun (1867) 2 N.W.P.H.C.R. 335 and Ali Muhammad Khan v. Azizullah Khan I.L.R. (1883) All. 50 and of the Calcutta High Court in Bibi Mehrun v. Mussumat Kubeerun (1870) 13 W.R.. 49. Of these cases, the decision in the last mentioned case to some extent bears out the learned Judges. What was actually decided in that case, however, was that according to Muhammadan Law a simple contract for a money payment in lieu of dower did not necessarily give the wife a lien over her husband's property. But it is observed that
if on the death of her husband the heirs allow her to get possession of any of his property, and to hold it in lieu of payment of what may be due to her under the contract, she will have a lien on that as against the heirs.
17. It does not appear that the case of a widow lawfully in possession of her husband's property without the consent of the heirs was specifically before them. The authority they refer to--the decision in Meer Meher Ally v. Mussamat Amanee (1869) 11 W.R., 212, only held that a widow having a lien was not entitled to any special charge on the estate or preference of any sort as against the other creditors and the learned Judges do not profess to lay down the conditions under which the widow's lien arists under the Muhammadan Law. In Mussamat Wahid-un-Nissa v. Mussumat Shubrattun (1870) 6 B.L.R. 54 the only point which was decided was that a Muhammadan widow had no lien on any specific property of her deceased husband so as to enable her to follow that property, as in the case of a mortgage, into the hands of a bona fide purchaser for value from one of the heirs of the husband. Sir Charles Hobhouse, J., who examined the previous decisions at some length stated their effect, in cases where the widow was in possession, in these words:
They are, I think all of them cases in which dower being admitted to be due, the widow was or had been in possession of the whole estate, and in which the heirs sought to oust the widow without having previously paid the amount of the dower debt. Now it seems to me that in such a case under the Muhammadan Law, had it not been the case of a widow especially, but that of any other creditor, such creditor, equally with the widow, would have been entitled to hold over the estate of which he was in possession until his debt bad been paid off.
18. Further on, no doubt he gives us his own opinion, founded on Macnaghten's statement of the Muhammadan Law as to Mortgages and Pawns, that the seizure of the property must be given by the owner and that the consent of the husband, or his heirs after his death, was necessary for the validity of a lien for dower where the widow is in possession. Loche, J., treating the question entirely from the Muhammadan point of view observes:
It may be here remarked that the decisions of this Court appear almost invariably to have treated the widow in possession of her husband's property in the light of a mortgagee or pawnee so far as her dower is concerned, and have held that she could not be deprived of possession till her claim for dower is satisfied.
19. He does not say that such possession must have been obtained with the consent of her husband or his heirs. In Syud Bazaryet Hossein v. Dooli Chund (1878) L.R. 5 IndAp 211, Sir Barnes Peacock delivering the judgment of the Judicial Committee approved of the ruling in Mussamat Wahid-un Nissa v. Mussumat Shubrattun (1870) 6 B.L.R on the question for decision before them in these words:
Their Lordships entirely concur in the view of the law which was laid down in the case cited from the 6th Bengal Law Reports, and the other authorities cited, and are of opinion that a creditor of a deceased Muhammadan cannot follow his estate into the hands of a bona fide purchaser for value to whom it has been alienated by his heir-at-law.
20. One cannot presume that he wanted to endorse any statement that where a widow was lawfully in possession of her husband's estate she would not acquire a valid lien unless she had obtained such possession with the consent of her husband or his heirs, for as I have shown, he was himself a party to more than one ruling in which, as Chief Justice of the Calcutta High Court, he had upheld the lien of a Muhammadan widow in possession without requiring that such possession should have been obtained with the consent of her husband or his heirs. The case of Mussumat Meerun v. Mussamat Najeebun (1867) 2 N.W.P.H.C.R. (Agra), 335 does contain a dictum which bears out the view expanded in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1894) All. 77 but I do not find that either the previous decisions or the authorities on Muhammadan Law are discussed there and Case No. XXXVII of Macnaghten's Precedents of Marriage, etc., referred to in the judgment, only lays down that a widow cannot take possession of her husband's landed property on her own authority, by virtue of her claim for dower, without a judicial order.
21. The view of the law stated in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1894) All. 77 was considered in that Court in Ali Bakhsh v. Allahdad Khan I.L.R. (1894) All. 77 and distinctly disapproved; so also the Calcutta decision in Sahebjan Bewa v. Ansaruddin I.L.R. (191) 38 Cal. 475 dissented from that ruling holding that it was sufficient if the widow entered into possession lawfully and without force or fraud and that it was not necessary that she should have done so under an agreement with her husband or his heirs; see also Umatul Mehdi v. Kulsum I.L.R.,(1908) Cal 120.
22. The only Arabic treatise on Muhammadan Law to which my attention is drawn as containing a direct dictum on the question is Khazanat-ul-riwayah, Chapter on Dower; the passage is to this effect:
The woman is entitled to take the amount of her dower from the estate of her deceased husband without the consent of his heirs, if the estate consists of dirhams and dinars' (i.e., current coins); 'but if it consists of property which needs be sold, so much will be sold as is necessary and her dower will be paid thereout, whether that property has been bequeathed by her husband or not, and she will take it,' (i.e., her dower,) 'without the consent of the heirs.
I am not aware that this book has been printed, but it seems to be in vogue in British India as it is relied on in Majmuoo Futuawa of Muhammad Abdul Hye of Lucknow on this very point; see page 86, 1882, Lucknow Edition. I would not have felt justified in basing my opinion solely on this treatise, but I cite the quotation to show that it is in support of the view taken by the Courts in the majority of the cases referred to and also in accord with the principle of Muhammadan Law on the subject.
23. All the authorities suggest that the Muhammadan widow's lien for dower on property of which she is in possession arises not by virtue of any agreement with her husband or his heirs but by the provisions of Muhammadan Law relating to the administration of a deceased person's estate. That is why it stands on the same footing as any other creditor's lien. If a widow or any other creditor of a deceased Muhammadan acquired the rights of a pledgee or pawnee by reason of being placed in possession of the deceased person's property by the consent of his heirs then she or he would have a preferential right relatively to the rights of other creditors of the deceased. If it is not; as a pledgee, properly so-called, that a widow having a claim for dower has a lien over property in her possession then there can be no necessity under the Muhammadan Law that she should have obtained possession with the consent of the heirs. What is called a widow's lien in this connection is founded on the rule of Muhammadan Law as to the administration of a deceased person's estate, viz., that a creditor who has obtained possession of the property of the deceased debtor should be allowed to continue in possession until the debt is satisfied. Supposing the estate is insolvent he is not entitled to ask that his debt should be paid in full before the estate is distributed pro rata among the other creditors. The right of a widow or of any other creditor similarly situated is no more than this, that the heirs are not entitled to recover the property in their possession until the debt is satisfied, because under the Muhammadan Law the distribution of the estate is postponed till after payment of all debts owing by the deceased including the dower due to his wife. This principle is laid down in every authoritative text book of Muhammadan Law. In the Serjjyah if; is stated
There belong to the property of a person deceased, four successive duties to be performed by the Magistrate: First, funeral ceremony and burial, etc.; next, discharge of his just debts from the whole of his remaining effects; then, the payment of his legacies out of a third of what remains after his debts are paid; and, lastly, the distribution of the residue amongst his successors, etc.
24. See also Macnaghten's Principles of Muhammadan Law, Chapter 1, Section 1, paragraph 5. It is upon that principle that Case No. X in Macnaghten's Precedents of Debts and Securities is based. There, the question is put:
A man dies being indebted to his wife for her dower. Has she a lion on the personal property left by her husband in satisfaction of such dower in preference to the other heirs?
Answer: If the other heirs pay the widow the amount of her dower, she has no claim on the property left by her husband, except for her legal share of the inheritance; and if they do not pay her the amount of her dower, she has, in the first instance, a prior claim, on account of her dower, on the property left by her husband, whether real or personal. The residue, after her claim is satisfied, will be divided between her and the other heirs, according to their respective shares of inheritance.
25. And in Macnaghten's Precedents of Marriage, etc., Case No. XXIV, it is said that
there is distinction between money and other property in cases of dower, viz., that the widow is at liberty to take the former description of property over which she has absolute power; but, as to the other property, she is entitled to a lien on it as security for the debt, and it does not become her property absolutely without the consent of the heirs or a judicial decree. Where the debt is large and the property is small, the former necessarily absorbs the latter, in spite of any objection urged by the heirs, who, until they pay the debt, have no legal claim against the creditor in possession to deliver up the estate.
26. [See Woomatool Fatima Begum v. Meerunnissa Khanum (1868) 9 W.R., 320.]
27. The ruling of the Judicial Committee in Mussumat Beebee Bachun v. Sheik Hamid Hossein (1871) 14 M.I.A. 377, however, requires, following a number of ruling of the Indian Courts on this point, that the widow's possession will be only recognized if she obtained it lawfully and without force or fraud. If one may say so, I can quite understand such a limitation, for it is against the policy of the law that possession obtained unlawfully or by use of force or fraud should be recognized by the Courts, although the limitation is not laid down in so may words in the texts on Muhammadan Law. But to go further and to say that the possession must be taken with the consent of the heirs would be entirely to ignore the principle on which the right of the widow in possession is based. She is also one of the heirs under the Muhammadan Law in addition to her being a creditor to the extent of the dower which remains unpaid. If she peaceably enters into possession such possession would undoubtedly be lawful by virtue of her possession as an heir, if not also as a creditor. Suppose, on the other hand, she entered into possession under a false claim of gift or purchase, that possession might not justify her in claiming a lien for her unpaid dower any more than if she had obtained possession by force.
28. My answer, therefore, to the first question will be that a Muhammadan widow who is lawfully, and without force or fraud, in possession of her husband's property is entitled to retain possession of such property as against his other heirs until her dower is satisfied even though such possession was not obtained with the consent (express or implied) of or under an agreement with, her husband or his other heirs, and that such property would not be divided among the heirs until the dower debt is satisfied.
29. In order that the second question, whether a vendee from a Muhammadan widow of the property of which she is in possession in lieu of dower has the same power as she had in respect of the dower due to her, may be answered, we have to consider whether the right of the widow in possession of her husband's property in lieu of her dower to retain such possession until her dower is satisfied is transferable at all or whether it is a purely personal right. There is no express text of Muhammadan Law so far as one can see dealing with the point. Macnaghten in the passage already cited speaks of such a right as a security for payment of the dower debt. The rulings of the Courts are almost equally divided. In Azizullah Khan v. Ahmad Ali Khan I.L.R.,(1885) All. 353 Mahmood, J., describes the position of the widow as analogous to that of a mortgagee, while in Ali Muhammad Khan v. Asizullah Khan I.L.R.,(1883) All. 50 it was treated as a personal right and did not pass to a purchaser of the estate from the widow. In the more recent; rulings in that Court, Chief Justice Edge in Hadi Ali v. Akbar Ali I.L.R.,(1898) All. 262 calls it a purely personal right which did not survive to her heirs; it is also so described in Muzaffar Ali Khan v. Parbati I.L.R.(1907) All. 640, where they say that such a right is not transferable and is nothing more than an interest in property restricted in its enjoyment to the owner personally. In Wahid Ali Khan v. Port Ram I.L.R.(1913) I.L.R. 35 All. 551, it was held to be a heritable right and one capable of being transferred, The same appears to be the view taken in Tahir-un-nissa Bibi v. Nawab Hasan I.L.R.,(1914) All. 558. In Ghulam Ali v. Sagir-ul-nissa I.L.R. (1901) All. 432, it was ruled that the widow's right, though analogous to that of a mortgagee, was not in all respects that of a usufructuary mortgagee so as to preclude her from suing for her dower. In Bombay the view that prevailed is that it is not a mere personal right; it is a substantive right which is heritable and transferable; see Majidmian Banumian v. Bibisaheb Jan I.L.R. (1915) Bom. 34. In this Court, the only question that arose in this connection at all was, whether the widow's lien for dower would give her any right, as against a purchaser in execution of a decree for sale passed on a mortgage executed by the husband, and it was answered in the negative, the learned Judges holding that the lien did not stand on the same footing as that arising from a mortgage. [See Ameer Ammal v. Sankaranarayanan Chetty I.L.R. (1902) Mad. 658.] In Nawab Mahomed Ameenoodeen Khan v. Moozuffur Hossein Khan (1870) 5 B.L.R. 705 which was a case from Calcutta, their Lordships of the Privy Council upheld the decree of the High Court which was to the effect that the heirs of the widow in possession who had succeeded her on her death could not be ousted from possession unless the dower was paid. It must be noted however that no objection was taken before the Privy Council to this part of the decree on principle. The right of the widow to retain possession till the satisfaction of her dower debt must, in my opinion, be held, as against the claims of the heirs, to be a right capable of descending to her heirs and of being transferred by her along with the right to dower. The law gives her right cot because she is the widow of her deceased husband but in her capacity as one of his creditors. When the widow dies all her rights of the nature of or in connection with property descend under the Muhammadan Law to her heirs and there seems to be no reason to make an exception to the rule with respect to this right of heirs which it may be mentioned would often be a very valuable right. Take the case where the widow has been in possession for more than three years and dies before the dower debt is satisfied, the heirs would not be able to recover the unsatisfied portion of the dower if the right to retain possession did not descend to them. Similarly, the widow can transfer a dower debt and I can conceive of no good reason why she should not be able to transfer her right to remain in possession of the property of which she has obtained possession as a means of realizing that debt. It may well be that she does not acquire all the rights of a mortgagee properly so called by virtue of this lien. For instance, she may not be entitled to sue for the sale of the property to realize the debt--see Ghulam Ali v. Sagir-ul-nissa I.L.R. (1901) All. 432--or to claim preference as against an auction-purchaser in execution of a decree passed on a mortgage executed by her husband, Ameer Ammal v. Sankaranarayanan Chetty I.L.R. (1902) Mad. 658. But to the limited extent that this right is recognized as security for payment of the dower debt there is no reason why it could not be passed to a transferee of the dower debt or transmitted to her heirs. It is well settled law--see Asher v. Whitlock (1865) L.R. 1 Q.B. 1, the judgment of the Privy Council in Sundar v. Parbati (1890) I.L.R. 12 All. 51 (P.C.) and Narayana Row v. Dharmachar I.L.R. (1903) Mad. 514--that a person in peaceable possession of land, as against every one but the true owner, has an interest capable of being inherited, devised or conveyed.
30. Then the next question is: Has a vendee from a Muhammadan widow in possession of her husband's property for payment of her dower the same right as the widow in respect of the dower due to her in cases where the widow has alienated the property and the alienation is impeached by the other heirs. As pointed out above, the widow has no power to sell the property in her possession and therefore, the sale itself will not bind her husband's heirs. She, however, could transfer her right to possession along with the dower debt and in my opinion the alienation must be upheld to that extent. The principle of law in this connection which is based on justice, equity and good conscience is well established and is recognized in Section 43 of the Transfer of Property Act in these terms:
Where a person erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
31. I would therefore answer the second question in the affirmative; that is to say, the purchaser, to the extent of the unpaid portion of the widow's dower is entitled to retain possession of the property sold to him, as against the heirs until the dower debt is satisfied but that the sale itself is invalid and not binding on heirs.
32. I agree.
Seshagiri Ayyar, J.
33. It has been argued that the two Questions submitted for the consideration of the Full Bench have been too broadly worded and that the facts of the case do not demand answers for both these questions. That is a matter which need not be discussed. We have to answer the questions which apparently in the opinion of the referring Judges arise for consideration. Upon the first question the position is this. There is a large body of opinion in Calcutta and in Allahabad to the effect that a widow of a deceased Muhammadan who takes peaceful possession of his property is entitled to retain it until her dower is paid. These early cases only impose two conditions. The possession must be lawful, and it should not have been acquired by fraud or by force. The few non-judicial authorities to which Mr. Venkatarama Sastri drew our attention seem to support this view. Sir Ronald Wilson in his Muhammadan Law strongly advocates it. Mr. Macnaghten in his Precedents takes the same view. In Ameer-oon-Nissa v. Moorad-oon-Nissa (1855) 6 M.I.A. 211, although the question was not directly decided, the decree suggested by the Judicial Committee is not quite consistent with the view that possession should be obtained with the consent of the heirs. At page 219 of the volume, the opinion of the Mulvi is quoted, which is to the effect that a Muhammadan lady can without recourse to Courts transfer the property which she has taken in lieu of dowar. This decision was considered by the Judicial Committee in Mussumat Beebee Bachun v. Sheik Hamid Hossein (1871) 14 M.I.A. 377. In that case possession was given to the widow by the Collector. Certainly, it was not a case in which possession commenced with the consent of the heirs. Here again, there is no limitation in the judgment to the effect that unless possession is taken with the consent of the heirs, the widow will not be entitled to retain it. The last Privy Council case, Hamira Bibi v. Zubaida Bibi (1916) I.L.R. 38 All. 581 (P.C.), for the first time as far as the Judicial Committee is concerned, stated that possession should be obtained not only lawfully and without fraud or force, but should have been with the consent of the heirs of the deceased. It was suggested that this reservation about consent was altogether unnecessary for the decision of the case before the Board. On the face of it, it looks as if this contention is right. It is necessary to consider, therefore, whether it is a deliberate pronouncement by the Judicial Committee on the question. For that purpose, I shall to some extent examine the case-law in Bangal and Allahabad. In Calcutta, the first reported case brought to our notice is Mussamat Janee Khanum v. Mussamat Amatool Fatima Khanum (1867) 8 W.R. 51. That was a case in which it was sought to distinguish between the Shiah and the Sunni doctrine as regards the right supervening on taking possession. Consent is not mentioned as a factor to be taken into account in Ahmed Hossein v. Mussumat Khodeja (1868) 10 W.R, 369 and in the case at page 370 of that volume which is appended as a foot-note, there could not have been any question of consent. Bibee Tajim v. Syud Wahed Ali (1874) 22 W.R., 118 also does not speak of consent. Umatul Mehdi v. Kulsum (1908) I.L.R. 35 Cal 120 is another decision to the same effect. In Sahebjan Bewa v. Ansaruddin I.L.R. (1911) Cal 75, Mr. Justice Mookerjee very elaborately examined this theory of the necessity for the consent of the heirs. He criticises adversely the view of Sir John Edge in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77 and points out that it would be meaningless to import the idea of a consent, where possession has been taken peacefully and without fraud. In Mirza Mohammad Sharafat Bahadur v. Shazadi Wahida Sultan Begum 19 C.W.N. 502, that view was upheld. On the other hand Bibi Tashliman v. Bibi Kasiman (1910) CRI.L.J. 584 adopted the view enunciated in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77. These are all the Calcutta cases. As regards Allahabad, in Mussumat Meerun v. Mussamat Najeebun (1867) 2 N.W.P H.C.R. 335, it was held that possession taken without fraud would suffice to enable the widow to retain possession and to get her dower paid out of the income. In Amani Begam v. Muhammad Karimullah I.L.R. (1894) All. 225, which defines what lawful possession is, there is no suggestion that is should have been obtained with the consent of the heirs. Sir John Edge in Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77 stated the law thus:
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 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 on titled. It would be otherwise if the heirs consented to her taking possession in order to acquire a lien.
34. In later cases in Allahabad this view was not followed. In Ali Bakhsh v. Allahdad Khan I.L.R. (1910) All. 551, the learned Judges distinctly differed from Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77. It is with reference to these authorities that we have to deal with the dictum of the Judicial Committee. Sir John Edge was one of the members of the Board who heard Hamira Bibi v. Zubaida Bibi (1911) I.L.R. 38 All. 581 (P.C.). The Right Hon'ble Mr. Amber Ali was another member. Sahebjan Bewa v. Ansuruddin I.L.R. (1911) Cal 475, in which the view of Sir John Edge in A````````manat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77 has been criticised, was quoted at the Bar. Under these circumstances, having regard to the constitution of the Bench and having regard to the fact that the view opposed to Amanat-un-nissa v. Bashir-un-nissa I.L.R. (1895) All. 77. 28 Mad.31 was placed before the Judicial Committee, is it open to us to say that the statement of the law in Hamira Bibi v. Zubaida Bibi (1911) I.L.R. 38 All. 581 (P.C.), is an obiter dictum which is not binding on Indian Courts? So far as Madras is concerned, there is no course of decisions on the question. In Calcutta and in Allahabad this dictum may affect vested rights and may lead to some unsettlement. There is one thing to be said in favour of the dictum of the Privy Council. By taking possession for dower, the dower debt is placed in a higher category than ordinary debts. It really amounts to giving preference to one creditor over others. It may not be unreasonable under these circumstances, that the law should insist that the consent of the other heirs should be obtained for such an exceptional treatment of a debt. There is another consideration which Mr. Narasimha Ayyangar pressed before us. Suppose the dower debt had become barred by limitation and the widow takes possession more than three years after it had become due. If she enters into possession, she would be stipulating for the payment of a barred debt in preference to the payment of running debts. In these circumstances it may be unreasonable to lay down that without the consent of the other heirs, such a preference should be obtained. On the other side it was argued that the object of the law in permitting the wife to take and retain possession of her husband's property is to put a check on the tendency to divorce the wife without proper reasons. This would be defeated if consent were predicated as a condition precedent. Further, in most cases, the amount of the dower will be disputed by the other heirs and they are not likely to permit the widow to assume possession. None of these considerations have been discussed in Hamira Bibi v. Zubaida Bibi , and I am therefore not prepared to differ from the Officiating Chief Justice, whose view in such matters is entitled to great respect, in holding that the Judicial Committee; did not intend to decide definitely that possession taken without consent will not give the widow the right to retain it until the dower debt is discharged.
35. Now I go to the second question. I feel no doubt on this point that our answer should be in the affirmative. Assuming that the widow has taken possession with the consent of the heirs and lawfully, I fail to see why her remedies should not be transferred. There is considerable authority for the proposition that it can be inherited. Mussamat Kummuroolnissa Begam v. Muhomed Hussun (1866) 1 Agra H.C.R. 288 Panchanan Bose v. Gurudas Roy (1872) 9 B.L.R. 187, Majidmian Banumian v. Bibi Sahebjan I.L.R. (1916) Bom. 34, Ali Bakhsh v. Allahdad Khan I.L.R. (1910) All. 551, Tahir-un-nissa Bibi v. Nawab Hasan I.L.R. (1911) All. 558 and Basir Ali v. Hafiz Nazir Ali 13 C.W.N., 153. Against these, there ace: Ali Muhammad Khan v. Azizullah Khan I.L.R. (1883) All. 50, Hadi Ali v. Akbar Ali I.L.R. (1898) All. 262 and Muzaffar Ali Khan v. Parbati I.L.R. (1907) All. 640. The Muhammadan text book writers, including Macnaghten and Sir Arthur Wilson, seem to incline to the view that the right can be transferred and inherited. No doubt under the English Law, ordinarily speaking, a lien is not transferable. See 19 Halsbury, page 2. But that is because a lien has been regarded as a personal privilege. Even in England there are exceptions in favour of certain classes of lien-holders. But I do not think that the right to retain possession and to pay herself out of the proceeds, which a Muhammadan widow acquires, is of the same kind as the lien considered in English cases. It is more in the nature of a charge on the property, because as I said before the right to pay herself out of the income is incident to the possession taken by a widow. Maina Bibi v. Wasi Ahmad (1919) 17 All. L.J., 629, on which Mr. Narasimha Ayyangar strongly relied, does not really decide the question. That was a case in which a decree was obtained by the heirs against the widow for possession of the property which she had taken in lieu of dower. The decree provided that on payment to the widow of the amount due, she should deliver possession and that in default of payment within a particular time her right to the property should become absolute. The amount was not paid in time. Thus, under the decree she became the absolute owner. Thereafter she made a gift of the property to her daughters. The question was considered whether this deed of gift, which was otherwise unenforceable, conveyed to the daughters a right to the dower. It was held that as the right to the dower and the right to retain possession were not specifically transferred, the donees were not entitled to stand in the shoes of the donor in that behalf. One thing is clear from that judgment, namely, that the dower debt was placed in the same category as a mortgage debt. It is also clear that by the failure to pay money in time, the widow acquired a right to the property by virtue of the decree and not by virtue of the right; she had to retain possession for dower. It is further clear that by the deed of gift there was nod and could not have been any transfer of the right to the dower, These considerations do not affect the present case. I have looked into exhibit I and I find that the widow transferred the property for her dower debt. The principle of subrogation is well recognised in India, and the principle of equity, which compels a plaintiff to discharge a lawful debt before recovering possession, has been recognized in cases of sales by widows, by managers and by cotenants. I fail to see why that principle is not applicable to the case of a sale by a widow. The sale-proceeds were applied to pay the dower debt. Therefore the vendee stood in the shoes of the vendor to the extant of the rights she had in the property sold. I am therefore of opinion that the right which the widow had to remain in possession for her dower is capable of being transferred.