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Case Number
Attorney(S)
  • K.N Dharap, with M.W Pradhan, for the appellants.
  • S.A Desai, with B.K Amin and S.A Kher, for respondent No. 1.
  • B.G Thakor, for respondent No. 2.
Judges
  • Mr. M.C Chagla, C.J
  • Mr. Gajendragadkar, J.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.N Dharap, with M.W Pradhan, for the appellants.
  • S.A Desai, with B.K Amin and S.A Kher, for respondent No. 1.
  • B.G Thakor, for respondent No. 2.
Judges
  • Mr. M.C Chagla, C.J
  • Mr. Gajendragadkar, J.
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Smart Summary

Summary of Opinion: Chagla, C.J.

Factual and Procedural Background

This second appeal concerns the right of a Muslim wife (and her heirs) to retain property pending payment of dower. The suit arose from the administration of the estate of one Inayat, who died in 1930 leaving a widow, Papabai, and four daughters. Inayat's brother Kadumiya survived him, and the parties in the record are the children of Inayat and the children of Kadumiya, the latter also claiming an interest in the estate of their uncle.

It was found by both the trial and lower appellate Courts that, on Inayat's death, Papabai went into possession of certain properties belonging to her husband. The appeal concerns properties specifically identified in schedules II and V which the heirs of Papabai claimed to retain until the dower due to their mother was paid. Both Courts found that a dower of 40,000 Ashrufees (equivalent to Rs. 6,40,000) had been fixed at the time of the marriage and remained unpaid. The heirs of Papabai asserted a claim for that unpaid dower.

The trial Court accepted the heirs' claim with respect to the properties in schedules II and V. The learned lower appellate Judge took a contrary view on a point of law about the character of possession. This second appeal resolves that legal question and determines which decree should stand.

Legal Issues Presented

  1. Whether, under Mohammedan (Mahomedan) law, a Muslim wife (or her heirs) who is in possession of her husband's property may retain that property until her deferred dower is paid.
  2. Whether the children of Papabai (as her heirs) are entitled to retain the properties specified in schedules II and V until the dower due to their mother is satisfied.
  3. Whether, in order to give rise to the widow's right to retain possession, the widow must originally have entered into possession specifically in right of, or "in lieu of", her dower (i.e., whether the original character of possession must be that of a creditor claiming dower), or whether it suffices that she is in lawful possession, a dower debt remains due, and a claim for dower is made.

Arguments of the Parties

Heirs of Papabai (claimants)

  • Claimed that Papabai went into lawful possession of certain properties after her husband's death and that a deferred dower (40,000 Ashrufees) remained unpaid.
  • Asserted their right (as heirs) to retain the specified properties until the unpaid dower was satisfied.

Learned Appellate Judge (reasoning rejecting the claim)

  • Concluded that Papabai did not obtain possession "in lieu of" her dower; held that it was not sufficient for the widow merely to be in lawful possession and have a dower debt—what was further required (in the learned Judge's view) was that the character of her possession must be that of a creditor (i.e., possession must be entered on a claim for dower).
  • On that basis the learned appellate Judge rejected the heirs' claim to retain the properties.

Mr. Desai (respondent counsel raising a factual contention)

  • Argued that Papabai's possession was not exclusive but joint possession with other heirs.

Other points noted in the opinion

  • It was noted that Papabai was said by the learned appellate Judge to have come into possession under an oral gift from her husband; the appellate Judge relied on that to infer she did not possess in right of dower.
  • Mr. Dharap (counsel mentioned) did not press for costs of the appeal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mussumat Beebee Bachun v. Sheikh Hamid Hossein (Privy Council) Held that a Mohammedan widow who had obtained actual and lawful possession of her husband's estates could retain possession as a creditor for her deferred dower until it was satisfied; described the widow's right as analogous to a lien or founded on her power as a creditor to hold the property. The court relied on this case to affirm the general proposition that lawful possession plus a dower debt and a claim gives rise to the right to retain; the opinion interprets the phrase “under a claim to hold them as heir and for her dower” as qualifying the right to hold (not the mere fact of lawful possession), and therefore rejects the narrower construction urged by the lower appellate Judge.
Hamira Bibi v. Zubaida Bibi (Privy Council) Stated that dower ranks as a debt and the wife is entitled among unsecured creditors to have it satisfied; if she lawfully obtains possession (with express or implied consent of husband or heirs) she can retain possession until satisfaction. Used to underscore the two essential conditions (lawful possession and a claim for dower) and to show it did not alter the premise in Mussumat Beebee’s case. The court treated this decision as consistent with the rule that lawful possession plus a debt and a claim suffice.
Sabur Bibi v. Ismail Shaikh (Calcutta High Court) Interpreted Hamira Bibi to require consent (express or implied) of the husband or heirs for the possession to be lawful in the sense required. Noted as one side of an acknowledged conflict among High Courts; the opinion records this decision but does not adopt it exclusively—instead it describes the conflict as limited to the consent question.
Beeju Bee v. Syed Moorthiya Saheb (Madras Full Bench) Contrary view to Calcutta: did not require consent as a prerequisite to lawful possession for the widow to retain estate for dower. Noted as part of the line of authority that the court treated as supporting the view that consent is not the only possible route to lawful possession; cited to show differences among High Courts on the consent issue.
Zamin Ali v. Aziz-un-nissa (Allahabad High Court) Held that it was not necessary to show that defendants took possession in lieu of their dower debt; material was that they were actually in possession and the dower debt was still due. Relied upon by Chagla, C.J. to support the proposition that the original character of possession is immaterial so long as possession is lawful and a dower debt remains due and claimed; used to reject the appellate Judge's additional limitation.
Hasnumiya Dadamiya v. Halimunnisa Hafizulla; Halimunnisa Hafizulla v. Hasnumiya Dadamiya (Bombay High Court) Followed the view of Madras and Allahabad (i.e., did not require consent as an absolute prerequisite). Cited in the discussion of conflicting High Court authorities to show that several High Courts adopted the position rejecting the need for express consent; used to place the present decision within that jurisprudential context.

Court's Reasoning and Analysis

The Court began by stating the well-established legal formulation: the right of a Muslim wife or widow to retain property pending payment of deferred dower has been compared to a creditor's lien and arises when three conditions are met:

  1. the widow must have entered into possession of the property lawfully and without force or fraud;
  2. there must be a debt due to her in respect of her dower; and
  3. she (or her heirs) must make a claim in respect of that dower.

The Court emphasized that the dower debt is enforceable by the wife and also by her heirs, and that the right of possession is heritable.

In interpreting Privy Council authorities, the Court rejected the narrower construction adopted by the learned appellate Judge. The appellate Judge had read Mussumat Beebee Bachun as requiring that the widow must have entered possession specifically under a claim for her dower (i.e., that the original character of possession must be that of a creditor). Chagla, C.J. analyzed the relevant passage and concluded that the phrase “under a claim to hold them as heir and for her dower” qualifies the right “to hold” rather than qualifying the mere fact of “possession.” In other words, the Privy Council was emphasizing the widow's right to hold the property for her dower once she had lawful possession and had made a claim, not imposing an additional requirement that her original entry into possession have been in the character of a creditor.

The Court further considered Hamira Bibi v. Zubaida Bibi and related High Court decisions. It treated Hamira Bibi as reiterating that dower is a debt and that lawful possession coupled with a claim for dower gives the widow (and her heirs) the right to retain, while acknowledging that some High Court authorities debated whether express or implied consent of the husband or his heirs was necessary to render the widow's possession "lawful."

The appellate Judge's additional limitation—that the original character of the widow's possession must be referable to her claim as a creditor—was rejected. The Court relied on Zamin Ali v. Aziz-un-nissa (among others) which expressly held that it was not necessary to show that possession was taken in lieu of dower; rather, actual lawful possession together with a continuing dower claim sufficed.

Applying these principles to the present case, the Court noted that both lower Courts found that Papabai had lawfully entered into possession of the husband's property and that the dower remained unpaid. Even if the learned appellate Judge's view that Papabai entered possession under an oral gift were accepted as a factual characterisation, the Court held that once Papabai or her heirs asserted the dower claim, the possession became possession in the character of a creditor and the right to retain arose.

As to Mr. Desai's contention that Papabai's possession was joint rather than exclusive, the Court observed this was a question of fact; both lower Courts had proceeded on the assumption of exclusive possession and no suggestion of joint possession appeared in the record. Accordingly, the Court would not permit this contention to be raised for the first time in the second appeal.

Holding and Implications

HOLDING: The Court allowed the appeal, set aside the decree of the lower appellate Court, and restored the decree of the trial Court with respect to the properties mentioned in schedules II and V.

The Court also ruled as a point of law that the widow's (and her heirs') right to retain property until deferred dower is paid does not depend on the original character in which the widow obtained possession (i.e., it is not necessary that possession was originally taken specifically "in lieu of" dower); rather, the right arises where the widow is in lawful possession (without force or fraud), a dower debt remains due, and a claim for the dower is made. The dower debt is enforceable by the wife and by her heirs, and the right to retain possession is heritable.

Consequences for the parties: the heirs of Papabai are entitled to retain the properties in schedules II and V until the unpaid dower is discharged. As to costs, the Court ordered no costs of this appeal (Mr. Dharap did not press for costs) and directed that the order of costs made by the lower appellate Court will remain in force.

Broader implications: the opinion resolves and clarifies the narrow legal question before the Court by rejecting any additional limitation (proposed by the lower appellate Judge) that would make the original "character" of possession determinative; beyond resolving the present appeal and clarifying this point of law, the opinion did not purport to lay down a novel principle beyond the established rule summarized above.

Disposition recorded in the opinion: Appeal allowed. Decree of lower appellate Court set aside; decree of trial Court restored. No order as to costs of this appeal; order of costs of the lower appellate Court to stand.

Show full summary ...

    Mirvahedali Kadumiya Pirjade v. Rashidbeg Kadumiya Pirjade

    Chagla, C.J:—

    The question that arises for our determination in this second appeal is the right of a Muslim wife to dower. The suit out of which this appeal arises was filed for the administration of the estate of one Inayat who died in 1930 leaving a widow Papabai and four daughters. Inayat had a brother living at the time of his death by the name of Kadumiya, and the parties arrayed on the two sides of the record are Inayat's children and the children of Kadumiya who also claim an interest in the estate of their uncle, and the question that we have to decide is whether the children of Inayat as the heirs of their mother Papabi who died in 1935 are entitled to retain certain properties till the dower that was due to their mother has been paid. It has been found by both the Courts that on the death of Inayat, Papabi went into possession of certain properties belonging to her husband. In this appeal we are only concerned with properties mentioned in schedules II and V which the heirs of Papabi claim to retain till the dower due to their mother was paid. It has also been found as a fact by both the Courts that dower in the sum of 40,000 Ashrufees which amount to Rs. 6,40,000 was fixed at the time of the marriage and that dower remained unpaid. A claim has also been made by the heirs of Papabi in respect of this dower. On these admitted facts the question arises whether the claim made by the heirs of Papabi is justified according to Mahomedan law.

    The right of a Muslim wife or widow to retain property has been compared to a creditor's lien, and as I shall presently point out the authorities lay down that the right of the wife to retain property arises provided the following conditions are satisfied: She must have entered into possession of the property lawfully and without force or fraud. There must be a debt due to her in respect of her dower and she should make a claim in respect of that dower. If these conditions are satisfied, then the wife is entitled to retain possession of the property till the debt is discharged. It is further clearly established that the debt in respect of dower is enforceable not only by the wife, but also her heirs. It is further established that the right of possession is a heritable right and not only the wife is entitled to retain possession, but also her heirs. Now, the position was considered by the Privy Council as early as Mussumat Beebee Bachun v. Sheikh Hamid Hossein and their Lordships held that a Mahomedan widow had a lien as a creditor on the estate of her husband for her deferred dower and was entitled to retain possession until her dower was satisfied. And their Lordships say this (p. 384):—

    “……the Appellant (i.e the widow), having obtained actual and lawful possession of the estates under a claim to hold them as heir and for her dower, their Lordships are of opinion, that she is entitled to retain that possession until her dower is satisfied, and the Respondents cannot recover the possession of their shares unless that satisfaction has taken place.”

    Then their Lordships go on to state that it was not necessary to decide whether the right of the widow in possession was a lien in the strict sense of the term. Then they added (p. 384):

    “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.”

    Now, in the case before us the trial Court held in favour of the claim of the heirs of Papabi. The learned appellate Judge has taken a different view, and the only reason why he has taken that view is that according to him Papabi did not obtain possession of the property in lieu of her dower. According to the learned Judge it is not sufficient that the widow should have been in possession lawfully and without force or fraud and that a debt for dower was due to her; but what was further necessary was that the widow should have entered possession upon a claim for her dower; that the character of her possession must be that of a creditor and no other character. In our opinion this further limitation sought to be placed upon the right of the widow is not justified by the authorities. Reliance is placed on the observation of the Privy Council to which I have just referred and it is suggested that the Privy Council qualifies the possession of the widow by stating: “under a claim to hold it as heir and for her dower”. It is contended that the Privy Council made it clear that it is only when the widow obtains possession under a claim for her dower that her right to retain the property arises. In our opinion that is not the correct interpretation of the passage in the judgment of their Lordships. What their Lordships are emphasising is the obtaining of actual and lawful possession. “Under a claim” does not qualify “possession”, but it qualifies the phrase that follows upon those words, namely “to hold them as heir and for her dower”. Therefore, the claim is not in respect of the possession originally obtained by the widow, but the claim is with regard to the right to hold the property for her dower.

    There is another decision of the Privy Council on which also reliance has been placed. That is Hamira Bibi v. Zubaida Bibi. Their Lordships say this (p. 301):—

    “……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.”

    Here again emphasis is placed on the expression “to satisfy her claim”, but it is clear that their Lordships were by this decision in no way altering the law as stated by them in Mussumat Beebee's case. In this passage their Lordships are emphasising the two conditions, namely the entering into possession lawfully and the fact that the widow has a claim for dower which she wants to be satisfied. Now, this decision of the Privy Council led to certain conflict of authorities in the different High Courts in India; but the conflict turned on this narrow question as to whether by this decision of their Lordships, their Lordships intended that the consent, express or implied, of the husband or his heirs was necessary before the possession of the widow could be considered lawful. The Calcutta High Court in Sabur Bibi v. Ismail Shaikh decided that such consent was necessary. A full bench of the Madras High Court in Beeju Bee v. Syed Moorthiya Saheb(3) took the contrary view. The Allahabad High Court also took the same view as Madras in Zamin Ali v. Aziz-un-nissa,(4) and our High Court in Hasnumiya Dadamiya v. Halimunnisa Hafizulla: Halimunnisa Hafizulla v. Hasnumiya Dadamiya(5) took the same view as Madras and Allahabad. But it should be noticed that it was never suggested that apart from the question of consent there was any other limitation on the right of the widow to retain possession of the property for her dower. The learned appellate Judge, with respect to him, has suggested another and a different limitation, and that limitation is that the character of her original possession should be such as must be referable to her claim as a creditor. We may point out that in Zamin Ali v. Aziz-un-nissa Mr. Justice Mukerji Acting Chief Justice, and Mr. Justice Bennet in their judgment at page 144 point out that it was not shown that the defendants took possession in lieu of their dower debt, but it was shown that they were actually in possession and that the dower debt was still due to them. Therefore, according to these learned Judges what was material and relevant was not in what character the widows took possession of the property but the fact that they were actually in possession and the dower debt was still due to them. Therefore, in our opinion, if it is found that a widow is in possession of the property of her husband, if it is further found that a dower debt is still due to her and she is still claiming that dower debt, then her right to retain the property exists and it is immaterial in what character she Came into possession of the property provided she came into possession lawfully and without force or fraud.

    In this case the learned Judge has taken the view that the case of the heirs of Papabi was that their mother had come into possession of the property under an oral gift by her husband which she alleged and according to the learned Judge as Papabi came into possession of the property under a deed of gift she could not have taken possession of the property in right of her claim for dower. But whatever the character of her possession was, as soon as she or her heirs put forward the claim for dower the possession became the possession of a creditor of the estate and the creditor had the right to retain the property till that debt was discharged.

    Mr. Desai has attempted to argue that Papabi's possession was not exclusive possession but joint possession with other heirs. Now, whether she was in exclusive possession or in joint possession is a question of fact and both the Courts have proceeded on the assumption that Papabi went into possession of the property after her husband's death, that her possession was exclusive and that after her death her heirs went into possession. It has nowhere been suggested that her possession was joint with any other heirs of her husband. We, therefore, cannot permit Mr. Desai to raise that contention in second appeal.

    The result is that in our opinion the learned trial Judge was right in the conclusion he came to with regard to the properties mentioned in schedules II and V. The appeal will, therefore, be allowed, the decree of the lower appellate Court set aside and that of the trial Court restored. Mr. Dharap has been very fair and he has not pressed for the costs of this appeal. There will be no order as to costs of this appeal. The order of costs of the lower appellate Court will stand.

    Appeal allowed.
    M.W.P
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    Mirvahedali Kadumiya Pirjade v. Rashidbeg Kadumiya Pirjade
    (Aug 24, 1950)