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Sabur Bibi Vs. Ismail Shaikh and ors. - Court Judgment

LegalCrystal Citation
Subject Family; Civil
CourtKolkata
Decided On
Reported inAIR1924Cal508
AppellantSabur Bibi
Respondentismail Shaikh and ors.
Cases ReferredHamira Bibi v. Zubaida Bibi
Excerpt:
- .....possession until the sum due to her had been paid out of the rents and profits by reason of the widow's lien for dower recognized by the mussalman law. to that defence it was answered that the widow had not obtained possession by any consent, express or implied, of her husband or his other heir. the learned munsiff found as a fact that no consent was obtained and he followed the decision of the judicial committee in hamira bibi v. zubaida bibi (1916) 38 all. 581 and rejected the widow's defence of lien for dower. the learned district. judge on appeal, has accepted this finding of the munsiff, has agreed with his view of law and has dismissed the appeal.2. on this appeal, the first question for consideration is whether the judgments of the courts below can rightly be subjected to any.....
Judgment:

Rankin, J.

1. One Satkori Shaikh a Mussalman of the Sunni School died leaving him surviving one widow, one daughter and two sisters. The plaintiff acquired by purchase the shares of the two sisters and, on attempting to obtain possession of the land, was resisted by the widow and the daughter. At the trial the widow claimed that a sum of Rs. 925 being due to her for deferred dower and she being in possession of her husband's estate she was entitled to retain such possession until the sum due to her had been paid out of the rents and profits by reason of the widow's lien for dower recognized by the Mussalman Law. To that defence it was answered that the widow had not obtained possession by any consent, express or implied, of her husband or his other heir. The learned Munsiff found as a fact that no consent was obtained and he followed the decision of the Judicial Committee in Hamira Bibi v. Zubaida Bibi (1916) 38 All. 581 and rejected the widow's defence of lien for dower. The learned District. Judge on appeal, has accepted this finding of the Munsiff, has agreed with his view of law and has dismissed the appeal.

2. On this appeal, the first question for consideration is whether the judgments of the Courts below can rightly be subjected to any valid criticism on the ground that the question of implied consent has not been found upon. In my judgment, there can be no doubt that the learned Munsiff had before him the question of implied consent and, on the facts of this case, he found and meant to find that there was no consent at all. The learned vakil who appeared for the widow, the appellant before us, contended that though the decision of the Judicial Committee in Hamira Bibi's case (1916) 38 All. 581 contained a statement to the effect that consent was necessary to give validity to such a defence, such statement was only obiter and he pointed out that a Pull Bench of the Madras High Court in the case of Beeju Bee v. Syed Moorthuja Saheb (1920) 43 Mad. 214 (F.B.) had adopted this view and had held, contrary to the dictum of the Judicial Committee, that such consent Was not necessary. In these circumstances he asked us to follow the Madras decision, to treat what is said in Hamira Bibi's case (1916) 38 All. 581 as not binding upon us and to allow this appeal.

3. Now, it is quite true and I am glad to know that it is recognized that, in appreciating decisions of Court, it is necessary to remember that a case is only an authority for the ratio decidendi. This principle is in constant exercise when dealing with the decisions of Courts wherein each Judge gives or may give his individual opinion. It is, however, particularly difficult to apply it to the decisions of the Judicial Committee, and every lawyer in India knows that the Judicial Committee, in giving its reasons, has always a very scrupulous regard to the inconvenience that may be caused by obiter dicta. In the present case, the argument on behalf of the appellant is that the case before the Judicial Committee involved only the question whether or not interest should be allowed to the widow in the accounts. The case was one in which undoubtedly the widow had obtained possession by the consent of her husband or his heirs. In these circumstances it is said that the observations were unnecessary for the decision, that the decision is contrary to a series of decisions in India and that it ought not to be followed.

4. The first question is as to whether or not the observations of the Privy Council are merely intended to apply to a case where, in fact, consent has been obtained. In my judgment, it is not possible so to read the decision. The question whether interest should or should not be allowed was' argued on behalf of the appellant on the view that the widow's claim for dower was a creation of the Mohamedan Law, that interest was in general obnoxious to the Mohamedan Law and that the ordinary principles of English equity should not, therefore, be applied to a right which was entirely defined by a different law altogether. Accordingly, one of the questions stated in the report as a main point for determination was the question whether the dower payable by a Mohamedan to his wife in consideration of marriage was in the nature of an ordinary debt. The members of the Board were Lord Atkinson, Lord Parker, Sir John Edge and Mr. Amir Ali. It is impossible not to notice, as indeed was noticed by one of the Judges in the Madras case, that two of the members of the Board must have been well acquainted with the conflict of authorities on) the present point that has been exhibited in the Indian decisions. In these circumstances, the actual decision of the Board was prefaced by a statement of the nature of the widow's right to dower and of the extent to which under the Mohamedan Law she had a security therefor. The statement is as follows 'Dower is an essential incident under the Mohamedan Law to the status of marriage to such an extent this is so that when it is unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called prompt, payable before the wife can be called upon to enter the conjugal domicile the other deferred, payable on the dissolution of the contract by the death of either of the parties or by divorce. 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 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. That statement of law is a statement, first of all, in an intentional form of restoration. The statement is that the widow's right is no greater than that of any other unsecured creditor except as there defined. That this decision is contrary to the view taken by the Pull Bench of Madras in the case referred to above and the view pressed upon us on this appeal admits of no doubt whatsoever. The contrary view, if I may ftake its expression from the judgment of the Officiating Chief Justice in that case which will be found at page 233 is as follows : 'All the authorities suggest that the Mohamedan 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 Mohamedan 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 Mohamedan 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 pledge-property so-called that a widow having a claim for dower has lien over property in her possession, then there can be no necessity under the Mohamedan 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 Mohamedan law as to the administration of a deceased person's estate, namely, 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.'

5. Coming to the next point, it is not in my opinion, a sound comment on the decision of the Board in Hamira Bibi's case (1911) 38 Cal. 475 to say that their exposition of the nature of the widow's lien for dower had no connection with their decision on the point about interest. Having set forth that her lien was to take its origin with the express or implied consent of the husband or his heirs, the Judicial Committee on that basis addressed themselves to the question whether on ordinary equitable principles she ought to be allowed interest as a consideration for her forbearance in enforcing her debt against her husband's estate. It seems to me that it would be both unnecessary and presumptuous to say that, if the Board had taken a different view of the nature of the widow's lien, their decision on the point of interest would necessarily have been different. But that their Lordships considered the application of equitable principles to the defendant on their general view of the nature and origin of the widow's lien for dower is to my mind fairly clear. It was for that reason and for that reason only that the question arose whether the dower was in the nature of an ordinary debt, whether it could only be given the incidents which particular provisions of the Mohamedan Law had already attached. It is to be observed that one decision wherein interest was allowed, but wherein a different view of the widow's lien had been adopted was laid before the Judicial Committee in that case. I refer to the decision in Sahebjan Bewa . Anmruddin (1911) 38 Cal. 475. It was suggested in the Madras Full Bench case already referred to that there was a preponderance of opinion in India to the effect that consent of the heirs was not necessary, and that accordingly it must not be supposed that the Judicial Committee intended to settle the question which had been agitating in Indian Courts for some time. In my judgment, it is impossible to think that the Board gave the definition of the widow's right to dower which is to be found in the judgment of Lord Parker without knowing very well that in so doing they were passing upon a matter as to which difference of opinion had prevailed. It is a difficult question and one upon which I think it necessary to pronounce whether the preponderance in the previous decisions was very great in favour of one view or the other. That is and must remain a matter of opinion, but it is undoubted that, at all events, ever since 1870, there has been authority in the case law for the view that consent of the husband or his heirs is necessary to ground the widow's right to lien. That view will be found stated in the case of Mussammut Wahidannessa v. Mussammut Shubrathen 6 B.L.R. 54. It was a main point of the decision, to which Sir John Edge was a party in the cases of Amanatunnessa v. Bashirannessa (1895) 17 Al. 77 and Muhammad Karmiullah Khan v. Amani Begum (1895) 17 All. 93. It was followed in this Court in 1910 in the case of Tasliman v. Bibi Kasiman (1910) 12 C.L.J. 584 and, although in the following year in a case already cited a different view was taken it seems unnecessary in view of the recent decision of the Judicial Committee to address myself to the question as to the preponderance being in favour of one view or the other. Much depends upon whether one confines oneself to a review of the Cases in which the present point was exactly raised. To take a particular instance, the language used by Mahmood, J., in the case of Azizulluh Khan v. Ahmed Ali Khan (1885) 7 All. 353 must be controlled by the consideration that he was there dealing with a second appeal, in which the consent of the heirs had been found as a fact. For all these reasons, it is, in my opinion, the duty of this Court to follow the decision ii Hamira Bibi's case (1916) 38 All. 581. It may be observed that under this decision the widow has for her dower all the rights of an ordinary creditor and may be given, by the consent of her husband or his heirs, a right to possession of the estate until by the rents and profits the debt has been liquidated. That means a position of great privilege. I can see no reason why that privilege as defined by the highest tribunal should not be taken as settled. For these reasons, this appeal must, in my opinion, fail and be dismissed with costs.

Ghose, J.

6. I entirely agree. I only desire to add that the rule of Mohamedan Law with regard to this matter was laid down by the Privy Council in the case of Buchun v. Hamid Hassim (871) 10 B.L.R. 45 (P.C.) where it was said that where a widow obtained possession lawfully without force or fraud she had a lien on the property for her dower. This expression has been interpreted in some of the cases as possession peacefully obtained without force or fraud. It seems to me that peaceful possession cannot always be said to be lawful possession and the case of Hamira Bibi v. Zubaida Bibi (1916) 38 All. 581 only reiterates the law laid down by the Privy Council and explains the expression 'lawful' by adding the words 'with the express or implied consent of the husband or his other heirs.' This interpretation we are bound to accept as a correct statement of it he law.


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