1. It is admitted by the defendant that the plaintiff, as widow of the late Nawab Ali Chowdhry, is entitled to a four-anna share; but it was at first alleged by him in his written statement that she was in possession of that four-anna share. That contention was subsequently abandoned in the course of the argument by the learned Counsel who appears for the appellant, and it is clear that the plaintiff has been dispossessed even of the share to which she is by the admission of the defendant entitled under the Mahomedan law. That brings us to the question raised in this case as to whether the plaintiff is entitled to succeed to anything beyond a four-anna share in the estate of her late husband Nawab Ali Chowdhry. The learned Counsel for the appellant quoted a Privy Council decision in the case of Mussamut Hurmut-ool-Nissa Begam v. Allahdia Khan 17 W.R. 108; Hajee Hedayut; Baillie's Mahomedan Law 2nd edition, pp. 10, 11, 44, 77, 79; Macnaghten's Mahomedan Law p. 93; and also a passage at p. 651 of the Futwa Alumghiri. In the Privy Council decision quoted by the learned Counsel, their Lordships observe that 'the proposition which assumes that if there are no residuaries the three-fourths of the property would necessarily go to the Crown, may be contestable. As a general rule, a widow takes no share in the return; but some authorities seem to hold that if there are no heirs by blood alive, the widow would take the whole estate to the exclusion of the fisc.' Now, these observations, although they had no bearing upon the ultimate decision of the case, seem to us rather in favour of the plaintiff than of the defendant. Then with reference to the quotations from Baillie's and Macnaghten's Mahomedan Law and from the Futwa Alumghiri, there can be no doubt that the more ancient authorities did hold that the widow and the husband were not entitled to the 'rudd,' or return, under the Mahomedan law; but more modern authorities have held the other way, and have ruled that in the absence of the 'bait-ul-mal,' the widow and husband are entitled to the return. The other side have quoted a decision of the Sudder Dewany Adawlut in the case of Mussamut Soobhanee v. Bhetun alias Shah Azim Ali 1 Sel. Rep. 8. D.A. 346 before Harrington and Stuart, Judges of the Sudder Dewany Adawlut. In that case, which is precisely on all fours with this case, the futwa of the moulvis was taken, and it was to this effect that the widow was entitled to the return under the Mahomedan law. The authorities cited by the moulvis in support of their futwa are mentioned in a note appended to that case by Sir William Macnaghten. These authorities are the Hemadya, which is a work of considerable authority (see page 341 of Morley's Digest), and the Zukheerali. The modern authorities as to the widow being entitled to the return under the Mahomedan law are sot out at p. 233 of Shama Churn's Lectures on Mahomedan law.
2. We, therefore, think that the weight of authority is in favour of the plaintiff's contention. She, as widow of Nawab Ali Chowdhry, is entitled to the return to the exclusion of the defendant, who has failed to establish his title as kinsman under the Mahomedan law. We, therefore, hold with the Subordinate Judge that the widow is entitled to the return.