October 2, 2022

Dower debt- A whole discussion

A dower is consideration of money and thing paid and promised to be paid at the time of marriage in muslim. Bride is entitled to get dower from bridegroom. But if the dower is not paid at the time of marriage and husband died, the wife is entitled to get it from the property of husband. Thus, the non-payment of dower become dower debt and wife is entitled to hold property in lieu of dower debt if dower is not paid by the heirs of the property who would have inherit the property of the deceased.

Until her dower debt is not satisfied, she is entitled to enjoy the benefits of property but her right of transfer is somewhat debatable.

The case of Zobair Ahmad and Anr. vs Jainandan Prasad Singh

This can be classified as latest important authority on the subject of dower debt. This is a decision of Patna high court.

The facts of the case

In this case, plaintiffs asked for a decree for possession with mesne profits with regard to 14 annas share in certain raiyati lands and a dilapidated house.

  • A Bashiruddin, was admittedly the owner of the 16 annas of the property, died in the year 1937.
  • Bibi Nafeesa came in possession of the properties in lieu of her dower debt, that she was appointed the executor of the properties of Bashiruddian and the legal guardian of her two children zobair ahmad and zaibunnisa.
  • Subsequently, she executed a sale deed to one Zainandan Prasad in respect of the 16 annas share in the properties in dispute. This sale-deed was executed by Bibi Naffisa on her own behalf as well as the guardian of her two children.
  • After attaining majority, the two children filed the present suit for recovery of possession of their 14 annas share in the properties. The allegation was that their mother had no right to convey the property to defendant
  • The suit was contested by zobair ahmad on the ground that his mother nafeesa came in possession of the properties in lieu of her dower debt and the transaction was for the benefit of the plaintiffs and it could not, therefore, be impeached.

Decision of Lower Courts

Trial Court

The trial court decreed the suit in favour of the plaintiffs but that decree has been set aside by the lower appellate court in appeal.

Lower Appellate Court

The main question of law involved in this case was,

Whether Zainandan Prasad acquired a valid title to the property in dispute by virtue of the sale deed executed by Naffisa in favour of him with regard to the 10 annas share of the properties.”

The construction of sale deed by Lower Appellate Court

The lower appellate court construed the document as showing that

  • the widow Naffisa had transferred her rights of possession as the holder of the property in lieu of her dower debt and not an absolute transfer of 16 annas share in favour of Prasad.
  • Accordingly, the lower appellate court has held that Naffisa transferred her right of possession which would endure to her in her lifetime or until her dower debt was satisfied in favour of Prasad.
  • For these reasons the lower appellate court held that Prasad had validly acquired the right of possession of the disputed properties by virtue of the document executed by Naffisa.

In holding this, the lower appellate court followed the decision of division Bench of Patna High Court in Abdur Rahman v. Wall Mohammad[1](1923) where it was held by Dawson Miller, C.J. and Mullick, J. that according to the Muhammadan Law the widow has the right to possession of the properties of her husband in lieu of the dower debt, and so long as her dower debt remains unsatisfied and she does not transfer the dower debt itself she can transfer for her lifetime possession of the property.

Case laws

Alienable

In the present case, the Patna high court discussed some cases in favour of transferable rights of dower-debt properties and cases which are not in favour of transfer.

In Mt. Bibi Makbulunnissa v. Mt. Bibi Umatunnissa[2] (1923) Courts and Das, JJ. held that the right of the Muhammadan widow to hold the property as a security for the dower debt and to continue in possession thereof until the dower debt was satisfied was property which was both heritable and transferable.

Mt. Maina Bibi v. Vakil Ahmad

But the honourable Patna high court observed that the authority of both these above-mentioned decisions were shaken by a subsequent decision of the Privy Council in Mt. Maina Bibi v. Vakil Ahmad[3] 1925) in which the widow of a deceased Muhammadan was in possession of her husband’s estate in lieu of her dower and the heirs of the deceased Muhammadan obtained a decree against her to the effect that they should have possession of their shares of the estate upon payment of a proportionate part of the dower debt within six months and that upon failure to pay their suit should be dismissed.

After six months had elapsed without the payment being made, the widow made by deed a gift of the estate and parted with possession of it to the donees. Several years later the same heirs sued the widow and the donees for possession of their shares.

It was held by the Judicial Committee that the suit was not barred by res judicata owing to the earlier decree and that the plaintiffs were entitled to possession unconditionally, no opinion being expressed as to whether the representatives of the widow could in some other suit recover the unsatisfied portion of her dower debt.

In the course of the judgment Lord Atkinson has stated as follows:

“It was contended, as their Lordships understood, that Musammat Maina Bibi had by the deeds of 1907 assigned both her dower debt and her right to hold possession of her husband’s estate until that debt was paid. It is doubtful whether she could have done either of these things, but however that may be, if is clear she, in fact, never purported or attempted to do either of them.

On the contrary, in those deeds she describes herself as the absolute owner of the property of her deceased husband, and purports to convey that absolute ownership to her donees.

There is no ground for the contention, if it has been really put forward, that because these deeds fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow’s dower debt & her right to hold possession of the lands till that debt is paid. By giving up the possession of the lands, as in her deeds she alleges she has done, she has undoubtedly lost her right to hold the possession of them.”

Patna high court said that the authority of judicial committees’ decision overrules the earlier both (above-mentioned) decisions of Patna high court.

Non-alienable

In the present case, the Patna high court referred another decision of Sheikh Mohammad Zobair v. Mt. Bibi Sahidan[4], 1942 it was observed by Shearer, J. that the dower debt of Muhammadan widow is not, properly speaking, a charge upon the property of her husband, and the interest which she has in the property in her possession in lieu of dower debt is therefore an interest restricted in its enjoyment to her personally within the meaning of Section 6(d) of the Transfer of Property Act, and as such is not capable of alienation.

In a later case Ram Prasad Singh v. Bibi Khodaijatul Kubra[5],1944 also a Division Bench consisting of Varma, and Manohar Lall, JJ., expressed the view that a Muhammadan widow who was in possession of her husband’s property in lieu of her dower debt could not mortgage her right of possession.

In another case, Abdul Samad v. Alimuddin[6], 1944, a Division Bench consisting of Varma and Reuben. JJ. reiterated the view that the right of a Muhammadan widow to remain in possession of her husband’s property until the satisfaction of her dower debt was a right restricted to her personally and was not capable of alienation whether with or without the dower debt.

In that case a Mudammadan widow was in possession of one third share in a house. She as an heir was entitled to one-twelfth of the house. She, however transferred the whole and entire one-third share in the house which had been and was in her possession and occupation as absolute proprietor in lieu of dower debt.

It was held in these circumstances by the learned Judges that what the widow could transfer by the sale deed was only her right, title and interest in the property, namely, one-twelfth share and that she could not transfer her right to possession of the property in lieu of her dower debt.

In this case also Reuben, J. expressed the view that the matter has been set at rest by the decision of the Judicial Committee in 52 Ind App 145 :(AIR 1925 PC 63) and that the decision of the Patna High Court in 4 Pat LT 267 : (AIR 1923 Pat 72) was no longer good law.

Decision in the present Case

In the present case also, Patna High court hold the decision of judicial committee and rejected all other decision in favour of alienability. Therefore, the high court set aside the decision of lower appellate court and gave decision in favour of plaintiff.

Reference

Zobair Ahmad And Anr. vs Jainandan Prasad Singh; AIR 1960 Pat 147


[1] 4 Pat LT 267: (AIR 1923 Pat 72)

[2] 4 Pat LT 272: (AIR 1923 Pat 33)

[3] 52 Ind App 145: (AIR 1925 PC 63)

[4] AIR 1942 Pat 210

[5] AIR 1944 Pat 163

[6] AIR 1944 Pat 174