A good authority on this subject is the case of ‘Maina Bibi vs Chaudhri Vakil Ahmed: (1925) 27 BOMLR 796’, judgment of which was delivered by Bombay High Court.
An appeal was filed against the widow of the deceased owner of certain lands and premises in which she was then in lawful possession under a claim to hold the same until the dower-debt.
After the death, on May 6, 1890, of this owner named Shaike Muin-ud-din, a considerable amount of litigation was set on foot between several persons claiming to be interested in or have claims upon his property.
The widow of the above mentioned owner of the property in suit immediately on the death of her husband, admittedly took possession of his immoveable property, including the property in suit, and procured her name to be entered on the registry as its possesser instead of his.
Court’s answer with observation and analysis of the matter
The court referred the case of Muaammet Bebee Bachun v. Shaikh Hamid Hossain (1871). The facts of the case were identical to the present case. In that case a Mahomedan widow whose husband had died without issue was put into possession of her husband’s estate as a co-heir and to secure her dower.
The point in controversy was whether, having been so put into possession, she was entitled to retain it until her dower-debt was paid to the exclusion of the other heirs of the deceased. It was held that she was so entitled, Sir Montagu Smith in delivering judgment said: –
“the claim of Musammat Bibi Baohun to hold the property to satisfy her dower cannot be founded upon an original hypothecation of the estate for her dower, for such a right does not arise by Mahomedan law as the consequence of any gift of dower, nor was there any agreement entered into on the part of the husband to pledge his estate for the dower.
But the appellant, 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 possession unless that satisfaction has taken place.”
The decision of Subordinate court
Musammat Maina Bibi, filed her written statement. She alleged, amongst other things:
(1) that her dower-debt, still unpaid, amounted to the sum of Rs. 51,000;
(2) that her deceased husband had during his life-time given to her his entire immoveable property in lieu of her dower-debt and put her into possession and enjoyment of the same; and
(3) that since she had been so put into this possession of the said property she had, without any objection from the plaintiffs or others, continued to hold that possession, as she was by every means entitled to do until the amount of her dower-debt had been fully paid.
On the first issue the Subordinate Judge found that the amount of the widow’s dower was, in fact, Rs. 51,000. and that the plaintiffs in the suit had accepted that amount as accurate. He took an account between the parties and came to the conclusion that the amount then due to Maina Bibi in respect of her dowers amounted, after making all just and proper deductions, to Rs. 25,387-6-5, and on November 23, 1903, made a decree, the curial part of which runs as follows: –
It is ordered and decreed that the plaintiffs be put in possession of a seven’ twelfth share of the property on condition that they pay to defendant No. 1 Rs. 25,387 within six months from the date of the decree, in case of non-payment of the said amount within the said time, the plaintiffs’ claim be dismissed with costs.
Against the decree, the plaintiffs appealed to the High court but high court also affirmed the decision of subordinate court, however it just extended the time for payment. The plaintiffs then appealed to Bombay high court, which also affirmed the decision of subordinate court.
Reference
Maina Bibi vs Chaudhri Vakil Ahmed: (1925) 27 BOMLR 796