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PETITIONER: [IN THE SUPREME COURT OF INDIA (HYDERABAD).]KAPORE CHAND

       Vs.

RESPONDENT: KADAR UNNISA BEGUM AND OTHERS

DATE OF JUDGMENT: 12/10/1950

BENCH: SIDDIQUI KHALILUZZAMAN J. BENCH: SIDDIQUI KHALILUZZAMAN J. MAHAJAN, MEHR CHAND NAIK R.S.

CITATION:  1953 AIR  413            1950 SCR  747

ACT:     Muhammadan Law--Dower--Widow in possession of  husband’s estate  in lieu of dower--Whether entitled to priority  OVer creditors-Nature of widow’s lien for dower.

HEADNOTE:    A Muhammadan widow in possession of her husband’s estate in lieu of her claim for dower with the consent of the other heirs  or otherwise is not entitled to priority  as  against his other unsecured creditors.  There is nothing inherent in the very nature of dower which entitles it to priority. 748 Ameer  Ammal v. Sankaranarayana Chetty (I.L.R. 25 Mad  658), Meet Meher Ally v. Mst. Areanee (11 W.R. 212), Maina    Bibi v. Wasi Ahmad (I.L.R  41 All. 558), Hamira Bibi v.  Zubaida- Bibi  (A.I.R.  1916 P.C.  46), Imtiaz Begum v.  Abdul  Karim Khan  (A.I.R. 1930 All. 881) referred    Kulsum  Bibi v. Shiam Sunder Lal (A.I.R. 1936 All.  600), Mst.  Ghafooran v. Ram Chandra  Das (A.I.R. 1934 All.  168), Mohamed  Turabuddin  v. Yasin Beeum  (17  D.L.R.  224)disap- proved.   Maina  Bibi,  v. Chaudhri Vakil Abroad (52 I.A.  145)  ex- plained.

JUDGMENT:   APPEAL  from  a judgment of the High Court  of   Hyderabad under  article 374 (4) of the Constitution  of India:  Civil Appeal No. 189 of 1950.   Abdul Wahid Owasi, for the appellant.   Ahmed Saeed Khan, for respondent No. 1.       1950.  October  12.   The judgment of  the  Court  was delivered by      J.  KHALILUZZAMAN J.--This appeal arises out of  execu- tion  proceedings.  The appellant, Kapurchand, had  a  money decree,  amongst  others, against one Mir  Hamid  Ali  Khan, husband of the respondent Mst. Kaderunnissa. In execution of the  decree the house in dispute belonging to  the  deceased judgment-debtor was attached. To the attachment the widow of the deceased raised an objection on the ground that she  was

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in  possession  of it in lieu of her outstanding  dower  and could not be dispossessed till her claim was satisfied.  The objection  was  allowed by the executing court  and  it  was ordered  that the house be sold subject to the  respondent’s claim,  the decree-holder being entitled to the surplus,  if any, out of the sale proceeds.  There was not much possibil- ity  of the house fetching more in the execution  sale  than the amount due on account of dower.  The court took the view that the widow’s claim for dower had priority over the debts due to other unsecured creditors and her position was analo- gous to that of a secured creditor.  The decree holder  made an application in revision to the High Court but without any success.   He then preferred an appeal to the Judicial  Com- mittee  of the State and it is now before us  under  article 374 (4) of the Constitution. 749     The sole point for determination in the appeal is wheth- er a widow in possession of her husband’s estate     in lieu of  her claim for dower with the consent of the other  heirs or  otherwise is entitled to priority as against  his  other unsecured  creditors.  It is conceded that the husband  died leaving  the  house  in dispute and  leaving  outstanding  a number of debts including the one due to the  decree-holder. The  house  was not charged or mortgaged by  him  either  in favour of his wife or in favour of any of the creditors.  If the husband had created any charge in favour of his wife  in lieu of her claim for dower, then it cannot be doubted  that she  would  have priority over the unsecured  creditors.  No specific  Quranic  text or any other original  authority  on Muslim law has been cited in support of the contention  that a widow’s claim for dower stands on a higher, ’footing  than the  claim of any creditor in respect of an unsecured  debt. Reference was made to a text in Sur-ai-Nissa which enjoins a husband ’to pay the claim of his wife and it also says  that widows  and  minors should be  given  favourable  treatment. This text does not give an absolute protection to the  claim of the widow as against other claims.  On the other hand,  a Muslim  is enjoined to observe his engagements and  to  keep his contracts faithfully and to discharge his liabilities in an honest manner.  No distinction is made between an injunc- tion  relating to the payment of dower on the one  hand  and the  payment of the other debts on the other.   The  learned advocate for the appellant contends that a widow’s claim for outstanding  dower  even when she is in  possession  of  her husband’s  estate in lieu of her claim with the  consent  of other heirs of the deceased stands on no better footing than that of unsecured creditors, though in their absence she  is entitled to be paid in full before the estate is distributed among the heirs.  He drew our attention to certain  passages from  the holy Quran and from writings of other  jurists  on this  subject.   The  learned counsel  for  the  respondent, however,  argued  that a widow has a lien on  her  husband’s estate  for her outstanding dower and when she has   entered into 96 750 possession  of  his  house after his  death  she  cannot  be dispossessed till her claim is satisfied either by the heirs or  by the unsecured  creditors.   He  placed reliance on  a decision of the Hyderabad High Court and also of some  other High Courts in India. A  careful  examination of the various  authorities  on  the subject  shows that the proposition of law on  this  subject has been correctly  enunciated  in  Tyabji’s Muhammadan  Law (1940 Edn.) in these terms: (1) A widow by her lien does not

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have  any priority over other creditors; (2) Mehr as a  debt has  priority  over other heirs’ claim to  have  the  estate distributed among themselves.  These two considerations  are not  affected by the fact of her being in or out of  posses- sion of the estate.  It seems clear that unless the  husband by  his  own act has placed the widow in a  better  position than  his  other creditors, her claim for dower  is  in  the nature  of an unsecured debt and she has no priority of  any kind  against the other unsecured creditors of her  husband. The Quranic text in Surai-Nissa, Ruku 4, enjoins the payment of dower in preference to bequests and inheritance but it is silent on the question of priority of dower debt in relation to  other creditors. In Mubsoot Sarkhasi, Vol. 29,  Kitabul- faiaiz,  page 137, it is pointed out that payment  of  debts has priority over bequests and wills.  In the administration of  the  estate of a deceased Muslim the rule laid  down  by early text writers and Fatwas,  such  as   Fatwa-e-Alamgiri, is  that in the first instance the funeral expenses  of  the deceased  should be paid out of the estate and  that  having been done, the estate should be divided between the legatees and the heirs  after payment of the debts due from him.   No priority has been indicated in respect of a dower debt of  a widow  over other unsecured creditors even if she has  taken possession of her husband’s estate after his death.    It  was  said that the nature of the  widow’s  claim  for dower  is  such that it amounts to a lien on  the  husband’s estate.  The claim for lien is based on the assumption  that the dower debt is consideration for the marriage and is  not merely a voluntary debt incurred due to the 751 respect  to the wife.  According to  Hamilton’s  Hedaya(1870 Edn.,  page 44), the leading text book on Hanafi law,  if  a person  specifies  a dower of ten or more diams  and  should afterwards consummate his marriage, or be removed by  death, his  wife  in either case can claim the whole of  the  dower specified,  because  by  consummation her  claim  for  dower becomes absolute.  The. dower debt becomes her property  and it  devolves  on  her heirs and has to be paid  out  of  the estate of the husband.  It has been described as a debt upon the  husband to be paid out of his estate.  The dower  of  a Muslim woman is a settlement in her favour made prior to the marriage  contract  and is similar to  the  donatio  propier nuptias  of the Romans but is of such an  obligatory  nature that  if  it is not mentioned before or at the time  of  the marriage, it is presumed to exist to the extent of a  proper dower amount.  Among the Hebrews the dower settled on a wife was for her use after the termination of marriage and  among the  Jews marriages without similar consideration  were  in- valid. As pointed out by Mr. Ameer Ali in his book on Muham- madan  Law, the custom originated in ancient times with  the payments  made  by husbands to their wives as  a  means  for their  support  and as a protection  against  the  arbitrary exercise  of  the power of divorce. The  Muslim  concept  of dower has no reference to the price that under some  systems of  law  was paid to the father of the bride  when  she  was given  in  marriage. On the other hand, it is  considered  a debt with consideration (for the submission of her person by the wife).  The result of the above discussion is that dower is purely in the nature of a marriage settlement and is  for consideration. It is a claim arising out of contract by  the husband and as such has preference to bequests  and  inheri- tance,  but on  no principle  of Muhammadan Law it can  have priority  over other contractual debts. In our view,  there- fore,  a dower debt cannot be given any priority over  other debts  on any equitable consideration or on the ground  that

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there  is something inherent in its very nature which  enti- tles it to priority. 752 It  is now convenient to examine the decided cases on   this subject.   In Ameer  Ammal v. Sankaranarayanan Chetty (1)  a Bench of the Madras High Court held that a claim for  unpaid dower constitutes a debt payable pari passu with the demands of other creditors and is not a preferential charge on   the estate.   In Maina Bibi v. Chaudhri Vakil Ahmad (2)  it  was held  that where the widow is not in the position of  a  se- cured  creditor and is otherwise in possession of  the  hus- band’s estate with the consent of the heirs, she is entitled to  retain possession of it until her dower debt  is  satis- fied.  Their Lordships observed that it was not necessary to say  whether the right of the widow in possession is a  lien in the strict sense of the term.  Whatever the right may  be called, it appears to be founded on the power of a 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.   This decision  does not place the widow on a higher footing  than any other creditor.  As against the heirs all creditors  are to be paid in priority before the estate can be distributed. In  Meer Meher Ally v. Mst. Amanee (3) it was held that  the lien of the widow over the property in her possession is not a  lien in the ordinary legal sense of the term and  that  a claim for dower is in the same position as that of any other ordinary  creditor and ranks pari passu with them  and  like other debts has to be paid before the heirs are entitled  to take anything.  In Maina Bibi v. Wasi Ahmad (4) it was  held that  she has no right of possession against the  creditors, not  being a secured creditor herself.   At  page  547   the following observations occur :-        "she  cannot  set  up any such  right  of  possession against  creditors claiming to have the debts owing to  them from  the husband satisfied out of the estate. She is not  a secured creditor; her claim for her dower (1) I.L.R. 25 Mad. 658.          (3) 11 W.R. 212.A11.538. (2) 52 I.A. 145        (4) I.L.R. 41 All 538. 753 debt ranks equally with the claims of other creditors of her husband,"     In Hamira Bibi v. Zubaida Bibi (1) it was observed  that dower ranks as a debt and the wife is entitled   along  with the  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.  Qua  the heirs  she has a creditor’s lien.  In Imtiaz Begum v.  Abdul Karim  Khan (,2) the same view was expressed.  In para.  295 Mr. Mulla in his book on Muhammadan Law has adopted the view that  dower ranks as a debt and that the widow  is  entitled along  with other creditors to have it satisfied out of  the estate  and that her right is not greater than that  of  any other  creditor.   The learned counsel  for  the  respondent relied  on the decision in Kulsum Bibi v. Shiam  Sunder  Lal (3), in which it was held that a widow in possession of  her husband’s estate  is entitled as against the other heirs  of her  husband and as against the creditors to retain  posses- sion until her dower is satisfied.   The same view had  been taken earlier in Mst. Ghafooran v. Ram Chandra Das (4) by  a single Judge.  It was said that her  possession could not be disturbed  till  her dower debt was satisfied.   In  Mohamed Turabuddin v. Yasin Begum (5) a Bench. of the Hyderabad High Court  held that the claim of a widow for dower was  in  the nature  of a secured debt.  There was no other  creditor  in

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that  case  which  arose between the heirs  and  the  widow. However,  in  Wahidunnissa Begum v. Yasin Begum (6)  it  was pointed  out that the claim of the widow for dower does  not create  any interest or charge on the property and that  the position of a widow is not only that of a creditor where her dower remains unpaid but also of an heir.     The result of the authorities is that excepting the  two Allahabad decisions mentioned above  and  a decision of  the Hyderabad High Court, the consensus  (1) A.LR. 1916 P.O. 46.          14) A.I R. 1934 All. 168.  (2) A.I R. 1930 All 881.         (5) 17 D.L.R.224.  (3) A.I.R. 1936 All 600.         (6) 32 D.L.R. 4’21. 754 of  authority is against the proposition that a widow as  an unsecured creditor has any priority over the other unsecured creditors  of her husband.  In our opinion, the  above  men- tioned  two  Allahabad  decisions do not lay  down  the  law correctly on this point and the rule has been correctly laid down  in   Ameer Arereal v.  Sankaranarayanan   Chetty  (1). There  is nothing repugnant or inequitable according to  the principles  of  Muhammadan Law in the estate of  a  deceased Muslim  being  rateably distributed  between  the  unsecured creditors.     For the reasons given above we hold  that the  objection raised by the widow had no substance in it and the executing court  should have directed the property to be sold and  the sale proceeds distributed rateably amongst the decreeholders and the widow. In the result we allow this appeal, set aside the judgments of the two courts below and direct the execut- ing  court to proceed with the execution in accordance  with the observations made herein.  in the circumstances we  will make no order as to costs of these proceedings.                                  Appeal allowed.