Sir John Edge, C.J and Banerji, J.:— This appeal has arisen out of a suit brought for possession by partition by one of the heirs of a deceased Muhammadan. The property in dispute was a house in which the Muhammadan had lived. Two of the defendants-respondents were widows of the deceased Muhammadan, and after his death they continued to live in the house in undisputed possession for more than a year. They resisted the suit on the ground that they were in possession for their dower. It is found that dower in fact was due. The case came before our brother Burkitt on appeal on behalf of the defendants. He allowed the appeal and dismissed the plaintiff's suit. This appeal has been brought by the plaintiff. What the Subordinate Judge found in first appeal with regard to possession for dower was this—“From the evidence on record it is not conclusively proved that the defendants came into possession in lieu of dower with the permission and consent of the heirs.” It appears to us that when a Muhammadan widow is in possession and has been for some time in undisturbed possession, and dower is admitted or proved to be due to her, it lies [96] upon the heir who claims partition without payment of his proportion of dower to prove that the Muhammadan widow was not led into possession by her husband in lieu of dower, or did not obtain possession in lieu of dower after her husband's death with the consent or by the acquiescence of the heirs. The Subordinate Judge put the onus upon the wrong party in our opinion. We adhere to our judgment delivered in Amanat-un-nissa v. Bashir-un-nissa. (F.A No. 312 of 1893, decided on the 12th of December, 1894, supra p. 77) on the question as to whether a Muhammadan widow who is proved not to have obtained possession in lieu of dower either from her husband or with the consent; or acquiescence of the heirs, has or has not a lien over the property. It appears to us that judgment does not touch the present case. We have been again referred to a judgment of their Lordships of the Privy Council in Mussumat Bebee Bachun v. Sheikh Hamid Hossein(1), and it has been contended that it appears, as was assumed by our brother Burkitt in the present case, that in that case: the Muhammadan widow had obtained possession in lieu of her dower after her husband's death. In our opinion that fact does not appear from the report. In 1851, the Muhammadan widow in that case instituted proceedings before the Collector to obtain mutation of names in her favour, her husband having died in the previous month. It is stated in the report—“She alleged in her petition that she was in possession by right of inheritance and also on account of her dower.” It was argued from the passage that it necessarily follows that she claimed to have obtained possession in lieu of her dower after her husband's death. That does not follow in our judgment. If she had been put in possession by her, husband in his lifetime in lieu of dower she would probably describe her possession after his death as a possession by right of inheritance and also on account of dower. In this case, it not having been found as a fact that these ladies had not obtained possession in lieu of dower with the consent or by the acquiescence of the heirs, the plaintiff failed to prove the right to partition without the payment of his proportionate share of dower.
[97] Although we do not agree with the propositions of law of our brother Burkitt, we, for the above reasons, dismiss this appeal with costs.
Appeal dismissed.
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