Tudball, J.:— The sole question for decision in this appeal is whether the heirs of a Muhammadan widow, who has lawfully obtained possession of her husband's estate in lieu of her dower debt, are entitled to continue holding that estate after her death, until the dower debt has been discharged.

The present plaintiffs appellants are the heirs of one. Musammat Zahuran. This lady and Musammat Sali man were the wives of one Izzat Khan or Izzat-ullah, who died on August 29th, 1905, leaving as his heirs the two widows (who as heirs were entitled to a one-eighth share each) and one Allahdad Khan (who was entitled to six-eighths). On his death the widows each took possession of a half share.

Musammat Zahuran died in December, 1906, and the present plaintiffs, as her heirs, applied for mutation of names. They were opposed by Allahdad Khan but defeated him in the Revenue Court. He then transferred his rights, as heir, to defendants 2 to 4, and so the plaintiffs have now sued for a declaration of their right to possession of the three-eighths share in the estate of Izzat Khan of which the widow had taken possession (over and above the one-eighth share which she took as heir) until the satisfaction of the dower debt due to her.

Amongst other defences it was pleaded that the widow had not obtained possession lawfully and that the dower debt was only Rs. 200 and not Rs. 2,000, but the lower courts have not gone into the merits of the case. On the strength of the rulings in Hadi Ali v. Ahbar Ali and Muzaffar Ali Khan v. Parbati, they have held that even where a Muhammadan widow has lawfully obtained possession in lieu of dower, her right to that possession is purely a personal right and is neither heritable nor transferable, and therefore the present plaintiffs, even on the facts as alleged by them, are not entitled to retain possession of the three-eighths share of Izzat Khan's estate. The correctness of this decision and of the above mentioned rulings is questioned on appeal. It is conceded by both parties that the dower debt stands in no better position than that of any other unsecured debt of the deceased husband. It is further conceded that if she lawfully obtains possession of that estate in lieu of her dower debt, the widow is entitled, as against the other heirs of her deceased husband, to hold it until the dower debt has been discharged, either from the usufruct or by payment on the part of the heirs. She is of course liable to account to the heirs for the profits thereof. This is also clearly laid down by their Lordships of the Privy Council in the case of Mussumat Bebee Bachun v. Hamid Hossein . The solution of the question before us, however, necessitates the ascertaining of the true nature of the widow's possession, when she thus lawfully takes her husband's estate into her hands. Is it a mere personal right to retain possession for her own lifetime only subject to payment ‘of the balance of the dower debt at any time before her death, or is it a right to possession which continues to her heirs after her death, subject to the conditions as to payment? In the case of Amanat-un-nissa v. Bashir-un-nissa it was held that a Muhammadan widow is “lawfully” in such possession where she has obtained it 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 debt. Though I do not perhaps accept this definition as a correct interpretation of the word “lawfully” as used by their Lordships of the Privy Council in their judgement in the case of Bebee Bachun v. Hamid Hossein, still, even from this, it would seem to follow that the property is in her hands a security for the debt due to her, and in the absence of contract or circumstances pointing to the contrary she would in law have a right to transfer her debt together with its security, and her heirs would be entitled to inherit both. As to the nature of the widow's possession it was laid down in Mahomed Ussudoollah Khan v. Mussumat Ghasheea Bebee that she was temporarily in possession as a security for the payment of her dower claim. That was a case in which the widow had alienated the property itself, and it was held that the heirs could sue to avoid the transfer. “It is clear”(runs the judgement) “that they (the heirs) may be entitled to recover possession by payment of the debt, during her lifetime or on her death, and that she is wholly incompetent to make a gift of what, although temporarily in her possession as a security for the payment of her dower claim, does not belong to her but to them.” It must be carefully noted that what the widow had alienated was not her debt with its security but the property itself, and that as to the rights of the other heirs it is clearly laid down that they are entitled to recover possession only on payment during her lifetime or on her death.

In the case of Mussumat Kummur-ool-nissa Begum v. Mahomed Hussun it was held that the widow was not competent to alienate permanently more than her own one-eighth share obtained by inheritance. As to the balance of the estate the learned Judges remarked:—“She holds it as security for the payment of her dower * * * At the same time we are satisfied that as the property in suit formed a portion of Umda Begam's husband's estate, the whole of which was in her possession as security for her dower, the widow would have had power to mortgage such hypothecated interest and that during her lifetime the defendant, except by payment of the dower, could not have released the mortgage.”

The above two decisions are of 1866 and go to show that the widow's security for her dower is transferable though she has not the power to transfer the actual property.

In the year 1870 in the case of Mussumat Wahid-un-nissa v. Mussumat Shubrattuh it was held that under Muhammadan law there is no hypothecation without seisin; but a creditor, whether widow or any other if in possession of the husband's property with the consent of the debtor or his heirs might hold over until the debt is paid” and that the cases cited to show that the widow had a right to hold until her dower was paid off, proceeded on this principle. This was held on the basis of a doctrine quoted from Macnaghten's Muhammadan Law.

In the case of Mussumat Bebee Bachun v. Sheikh Hamid Hossein , a decision of 1871, their Lordships of the Privy Council remarked:—“It is not necessary to say whether this right of the widow in possession is a lien in the strict sense of the term, although, no doubt, the right is so stated in the judgement of the High Court in the case of Ahmed Hossein v. Mussamut Khodeja . 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 the subject of the claim, for the profits received. Their Lordships, while not deeming it necessary themselves to define the right of the widow in possession, point out that it had been held to be a lien in the strict sense of the word. In this case it is worthy of note that the widow took possession without the consent of the other heirs.

In the case of Syud Bazayet Hossein v. Dooli Chund the report shows that the High Court (Phear and Ainslie, JJ.) remarked as follows:—(No doubt if she is in possession of the property she is entitled to assert a “lien” upon it in respect of her own debt, against the other heirs and to pay herself her own debt before she pays the debt of any one else.” In the case of Aziz-ullah Khan v. Ahmad Ali Khan , it was held by a Bench of this Court (Oldfield and Mahmood, JJ.), that the heirs of the widow in possession in lieu of dower succeeded to her estate, including the dower debt, and, as such, were entitled to continue in possession of the deceased husband's property like the widow, until the dower debt was satisfied. The case is parallel to the one now before us and is a ruling in point. This judgement was delivered by Mr. Justice Mahmood. It is a clear ruling to the effect that the widow's right to retain possession is at least heritable.

On behalf of the respondent it is urged that the widow's right to possession is purely a personal right and that it ceases on her death. The argument has not been based on any principle or rule of Muhammadan Law, but reliance is placed on certain rulings.

In Ali Muhammad Khan v. Aziz-ullah Khan it was remarked in the judgement:—“The right to dower is personal to herself and does not pass to a purchaser of the estate, for dower stands on no higher footing than any other debt.” Then, quoting from the judgement of the Privy Council in Bebee Bachun v. Hamid Hossein noted above, the Officiating Chief Justice remarks:—“But this is something short of her having an actual lien upon it, and we are unaware that their Lordships of the Privy Council have ever made any such declaration. Indeed in Bazayet Hossein v. Dooli Chand it was ruled chat the creditor of a deceased Muhammadan, whether in respect of dower or otherwise, cannot follow his estate into the hands of a bonâ fide purchaser for value to whom it has been alienated by the heir at law whether by sale or mortgage.”

In this case the widow had transferred the very estate of her husband. She had not transferred her dower debt and with it the security that she held. The dower debt was her own personal property and by selling her husband's property she did not thereby transfer her right to the dower debt. Therefore it was correctly held that her alienee could not plead as against the heirs who sued for possession that the dower debt was still unpaid. The decision on the facts was correct. It might have been otherwise had the widow only sold the dower debt together with her security for the same. In the case of Bazayet Hossein v. Dooli Chund, the widow was not in possession of the estate at all. The son of the deceased as heir took possession and transferred to others. Subsequently the suit for dower was brought and a decree obtained, and it was sought to charge the estate in the hands of a bonâ fide transferee. This clearly could not be allowed. The right to dower is no doubt the personal property of the widow and ordinarily stands on the game footing as any other unsecured debt, but this decision is no satisfactory authority against the widow's right to retain possession once it has been lawfully obtained as security for her dower.

The decision must be read in the light of the facts of the case, and it merely amounted to this that the widow had no power to alienate the estate itself. The case was mentioned and the ruling followed in Ajuba Begam v. Nazir Ahmad by Mr. Justice Mahmoob. Here the widow was not in possession of the half house in lieu of dower. She made an out-and-out transfer of an isolated portion of her husband's estate, and it was ruled that she could only convey her rights and interests by inheritance from her husband. In respect to the decision, in Ali Muhammad Khan v. Aziz-ullah Khan , Mr. Justice Mahmood remarked:— “I may say that I agree in the general effect of the ruling, although I may not be prepared to adopt every step of the reasoning upon which the ruling proceeds. It is important to point out that in that case although the property had been sold by the widow there was nothing to show that she had also conveyed to the vendee her right of dower.” Attention was called to the learned Judge's own judgement in Aziz-ullah Khan v. Ahmad Ali Khan noted above, and he pointed out that there was nothing inconsistent between the two rulings, and that the position of the heirs succeeding to the estate of a Muhammadan widow was very different to that of a purchaser from her of an isolated bit of her husband's estate. The latter (the purchaser), he pointed out, was not her representative for her claim to dower, because it is a money claim “by itself”.

The decision in I.L.R, 6 All., 50 does not advance the respondent's argument in any way whatever. It does note establish that the right to retain possession lawfully obtained is a personal right which ceases on her death and is not transferable.

The case of Hadi Ali v. Akbar Ali does, however, in some degree support the respondent's contention. The facts were as follows:—“One Karim Bakhsh died, leaving a widow and three daughters, a nephew (son of his brother) and a daughter's son, Hadi Ali. The widow took possession of the estate in lieu of dower and then gifted a portion of it to Hadi Ali. The nephew thereupon sued to obtain possession of his share in the estate as against the widow and Hadi Ali.

The Court of first instance decreed the claim. The widow and Hadi Ali both appealed in respect to the portions of the estate in their separate possession. Pending the appeal the widow died and her heirs not being brought on the record her appeal abated. Hadi Ali's appeal was decreed. On second appeal to this Court a single Judge ruled as follows:—“As regards the property which is the subject of the alleged gift to Hadi Ali, the lower appellate Court has found that Huran Bibi was in possession of it in lieu of dower. She was not entitled to transfer that property by way of gift or otherwise and the gift was not legally valid. Having been put into possession in lieu of dower she was entitled to continue in possession so long as her dower debt remained unpaid: that was a right personal to her and became extinct on her death. Hadi Ali is not entitled to remain in possession of the-estate left by Karim Bakhsh.”

Now in so far as the Court held that the widow had no power to gift the actual property to Hadi Ali, the decision in my opinion was perfectly correct. The property did not belong to the widow. She merely held it as security for her dower debt and therefore could not give “it,” the property, to her grandson. The case was similar in its aspects to that of Ali Muhammadd Khan v. Aziz-ullah Khan and also Ajuba Begam v. Nazir Ahmad mentioned above, in the latter of which Mr. Justice Mahmood pointed out that these decisions were not inconsistent with his decision reported in I.L.R, 7 All., 353, wherein he held that the widow's right to retain possession, lawfully obtained, was heritable. But I cannot agree with the reasoning of the learned Judge when he says that the widow's right to continue in possession was a right personal to herself and became extinct on her death.

On Letters Patent Appeal this decision was upheld, reliance being placed on the two rulings mention above (I.L.R, 6 All., 50 : Weekly Notes, 1890, p. 115) and it was held that the widow's lien was a purely personal one and became extinct on her death, not surviving to her heirs. The judgement is very brief. No reason whatever is given for holding that the widow's right to continue in possession became extinct on her death and did not survive to her heirs. Though reliance is placed on Mr. Justice Mahhood's decision in Ajuba Begam v. Nazir Ahmad, no mention is made either of his ruling in I.L.R, 7 All., 353, nor of the clear distinction which he draws in his judgement between the circumstances of the case then before him and those of the case reported in I.L.R, 7 All., 353. With due deference to the learned Judges I cannot see that he held that the widow had a lien which did not survive to her heirs.

Moreover in this case it was not even necessary to go so far as this in order to decide, the case. Hadi Ali was the donee, not of the widow's right to the dower debt, nor of her right to continue in possession until that debt was paid. The widow had simply given to him property which did not belong to her, over and above her share inherited from her husband. There is one other case on which the arguments for the respondents have been based? Muzaffar Ali Khan v. Parbati . The decision of the Privy Council in Bebee Bachun v. Hamid Hossein is mentioned in the judgement and the passage quoted above was also quoted. The learned Judges then remarked:—“It will be seen that this is a much stronger case than the one before us. The lady was in actual and lawful possession (a status to which Musammat Ashraf-un-nissa, it is admitted, never attained, possession having remained all along with the mortgagees) and yet the utmost right assigned to her is that of a creditor to hold certain property until her debt is satisfied, with the liability to account to those entitled to the property. Such a right could never be transferable. It is nothing more than an interest in property restricted in its enjoyment to the owner personally and the transfer of any such right is prohibited by section 6, clause (d) of the Transfer of Property Act IV of 1882. Furthermore we have held in this Court that such rights are neither transferable nor heritable. See the decision in Hadi Ali v. Akbar Ali.” In the first place, as the above quotation itself shows, the widow in this case was not and never had been in possession at all of the estate in question. That had remained all along with the mortgagees to whom the husband had given possession. It was, therefore, hardly necessary for the purposes of the case to decide the question of the nature of the possession of a Muhammadan widow, lawfully obtained in lieu of dower. In the next place, it is based on the ruling in Hadi Ali v. Akbar Ali, which has already been discussed. Thirdly, no reason beyond this ruling is given for holding that such a right could not be transferable and is nothing more than an interest “in property restricted in its enjoyment to the owner personally.” Neither Mr. Justice Mahmood's decision in I.L.R, 7 All., 353, nor any of the older rulings are mentioned or discussed either in this judgement or in that of Hadi Ali v. Akbar Ali. No grounds are given for holding that the enjoyment of this right to continua in possession is restricted to the widow personally and that it ceased with her existence. The right is one which the widow secures as a creditor for her dower and it is one to continue holding until her debt is satisfied. Such a right is property, and primâ facie in the absence of any law or contract to the contrary, it is property which is both heritable and transferable. The older rulings quoted above all tend one way, viz., that the widow holds the property in such circumstances, as security for her debt and that she has a lien upon it, and that her right to continue in possession is a transferable interest (vide 1 Agra, 150 and 288). In the former of these two cases it was laid down that in order to obtain possession the heirs must pay the dower debt either “during her lifetime or on her death.” Her position, it has been held, is analogous to that of a mortgagee or a pawnee. No text, no rule of law, Muhammadan, English or Indian, has been placed before us to support the contention that this right dies with the widow and that she has no power to transfer both her dower debt and its security. This right must not be confounded with a right to sell the actual property, which has often been claimed and as often disallowed. Thus once lawfully admitted to possession hers is a lien subject, however, to a liability to account for the profits. I know of no valid reason in law why she should not be entitled to transfer her debt together with this right to continue in possession. Equally, there is no justice in holding, in the absence of contract to the contrary, that her heirs, who inherit the dower debt, do not also inherit with it the security for that debt. It is easy to conceive a casein which a widow has held such possession for many years over and above the period of limitation within which she must sue for her dower debt, and has then died without the debt being fully discharged. If the heirs are not entitled to inherit they lose all means of recovering the balance of the debt due. Only in very special circumstance's could section 20 of the Limitation Act assist them. Of course, if the widow agrees with her husband's other heirs to hold the property only for her lifetime in full satisfaction of the debt), the latter is extinguished on her death. In the absence of any such contract, in my opinion, the widow's heirs are entitled to inherit the right to continue in possession until her dower debt is satisfied, and I fully agree with the ruling of Oldfield and Mahmood, JJ., in Aziz-ullah Khan v. Ahmad Ali Khan . I would, therefore, admit the appeal.

Richards, J.:— I concur. Their Lordships of the Privy Council in the case of Mussumat Bebee Bachun v. Sheikh Hamid Hossein have laid down that a Muhammadan widow entitled to dower who has lawfully and without force or fraud obtained possession of her husband's property, is entitled to retain possession until her dower debt is satisfied, subject to her liability to account for the profits received. If the widow has such a right, I can see no reason why it should not descend to her heirs. The meaning of the expression in their Lordships' judgement “lawfully in possession” does not clearly appear. In the case of Amanat-un-nissa v. Bashir-un-nissa) the following passage occurs “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 in lien for her dower, she cannot obtain that lien by taking possession adversely to the other heirs,” I think that a perusal of the report of the case Mussumat Bebee Bachun v. Sheikh Hamid Hossein negatives the assumption that a Muhammadan widow cannot be lawfully in possession unless by contract with her husband or with the consent of the heirs. I do not understand how such a widow can be said to obtain a “lien” by contract. If the widow's right is only by virtue of a contract with her husband or with the other heirs, her right must be limited entirely by the terms of the contract. It is not a lien. In my opinion where a Muhammadan widow entitled to dower gets quietly and peacefully into possession without fraud, she is entitled to retain possession until her dower debt is paid, subject to (as their Lordships have laid down) her liability to account for the profits received. I am also of opinion that if the widow, being so in possession, dies, her right descends to her heirs.

By the Court.—The appeal is allowed; the decrees of the courts below are set aside, and the case is remanded through the lower appellate court to the court of first instance for decision on the merits. Costs here and hitherto will be costs in the cause.

Appeal decreed.