. ,

•f

S.C.R. SUPREME COURT REPORTS 747

that the Registrar can stay the proceedings. It seems 1950

to us that the act of the Registrar in asking the civil .

t t t

.

d' d' b f .

Co-opB'atwe

cour to s ay execu 10n procee ings pen mg e ore it Soci•tY of n, bts

is a clear encroachment on the powers of the executing v.

court and is in excess of his statutory powers and Nandlal •

should have been ignored by the courts.

As a fresh certificate was issued

by the Nazim in

Mahajan J.

order to cure a defect that might be said to exist in the

original certificate because of its having been sent by

the Madadgar N azim, it is unnecessary to consider the

contention of the learned counsel that there was

no proper certificate in

this case and the proceed-

ings in execution therefore were without

· juris-

diction.

The result therefore is

that this appeal is allowed,

the decisions

of all the three courts below are

set aside

and the executing court is directed to proceed with

the execution of the decree from the stage at which it

was interfered with by the letter received from the

office of the Registrar. In the circumstances of this

case we will make no order as to costs of the proceed-

ings throughout.

Appeal allowed.

[IN THE

SUPREME CouRT·OF INDIA (HYDERABAD).]

KAPOJ\E CHAND

v.

KADAR UNNISA BEGUM AND OTHERS

[MEHR CHAND MAHAJAN, R. S. NAIK and

KHALIL UZZAMAN J J.J

Muhammadan Law-Dower-Widow in possession of husband's

estate in lieu of dower-Whether entitltd to priority over crediiors­

Nature of widow's lien for dower.

A Muhammadan widow in possession of her husband's estate

in lieu of her claim for dower with the consent of the other bairn

or otherwise is not entitled to priority as against his other un~

J9b0

Oct l'l.

, ,. , secured creditors. There is nothing inherent in the very nature

) (\.\)~~~ Vl'n\c\1 en\it\es it to priority.

748 SUPREME COURT REPORTS [1950]

1950

Ameer Ammal v. Sankaranarayan~ Chetty (LL.R. 25 Mad.

658),

Meer Melter Ally

v .. mt. Amanee (11 W. R. 212), Mania

Kapore Chand Bil~i v. Was-i Ahrnod (LI .... R 41 A_ll. fJ58), Hami1·a Btbi v. Zubaid(;,

v. Bibi (A.LR 1916 P.O. 46), Im:iaz Be9"m v. Abdul Karim Khw

Kadar Unnisa (A.LR. 1930 All. 881) referred to.

Begum di Others. Kulwm Bibi v. Sliiam S.inder La.l (A.LR. 1936 Ail. 600),

Mst. Ghafooran v. Ram Chandra Dos ( .\.I.R. 1934 All. 168),

Mohamed 'l'w·abuddin v. Yasin Begum :_17 D.L.R. 224) diRapproved.

Maina Bibi v. Chaudh>i Vakil Ahmad (52 I.A. 145) explained.

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

Khat;lunaman J. KHALILUZZAMAN ].-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

belong­

ing to the deceased judgment-debtor was attached.

To the attachment the widow of the deceased raised an

objection on the ground

that she was in possession

of

it in lieu of her outstanding <lower and could not Le

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

possibility

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 analogous to that of a

secured creditor. The decreeholder

made an applica­

tion in revision to the

High Court but without any

success. He then preferred an appeal to the Judicial

Committee of the State and it is now before us under

article

374 (4) of the

Constitution.

••

S.C.R. SUPREME COURT REPORTS 749

The sole point for determination in the appeal is 1950

whether a widow in possession of her husband's estate

in lieu of her claim

for dower with the consent of the

Kapore Cha"d

v.

other heirs or otherwise is entitled to priority as against Kadar unnisa

his other unsecured creditors. It is conceded that the Bequm" Others. ·

husband died leaving the house in dispute and leaving . -

outstanding a number of debts including the one due Khatilu.,aman J.

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 injunction 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 out-

standing 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 foot-

ing than that of unsecured creditors, though in their

absence she is entitled to

be paid in full before

t~e •

estate is distributed among the heirs. He drew our

attention

to certain passages from the ho! y 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 ~6

750 SUPREME COURT REPORTS [ 1950]

1900 possession of his house after his death she cannot be

dispossessed till her claim

is satisfied either by the Kapo•·'. .. Cha"d heirs or by the unsecured creditors. He placed

Kad"' un""" reliance on a decision of the Hyderabad High Court

Begum Ji Others. and also of some other High Courts in India.

A careful examination of the various authorities on

Kha!iluuama" J. 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.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 possession 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, Kitabulfaiaiz, 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 ex­

penses

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 indi­

cated 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

;i.nd is not merely a voluntary debt incurred due to the·

.•

'

,

, '

S.C.R. SUPREME COURT REPORTS 75j

respect to the wife. According to Hamilton's Hedaya rn50

(1870 Edn., page 44), the leading text book on Hanafi

d d

. Kapore Chand

law, if a person specifies a ower of ten or more 1ams v.

and should afterwards consummate his marriage, or be Kadar Unni••

removed by death, his wife in either case can claim Begum .t othe ...

the whole of the dower specified, because by consum- --

mation her claim for dower becomes absolute. The Khaliluszaman J.

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 propter 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 invalid.

As pointed out by

Mr. Ameer Ali in his book on

Muhammadan 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 con-

sideration (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 be-

. q nests and inheritance, but on no principle of

.Muhammadan Law it can have priority over other

contractual debts.

In our view, therefore, a dower

· debt cannot be given any priority over other debts on

any equitable consideration or on the ground that

there is something inherent in its very nature which

entitles

it to priority.

'

752 SUPREME COURT REPORTS [1950}

1950 It is now convenient to examine the decided cases

on

this subject. In Ameer Ammal v. Sankara­

Ka.pore Chand

v. narayanan Chetty (

1

)

a Bench of the Madras High

Kadar

Unni•a Court held that a claim for unpaid dower constitutes a

Begum & Others. debt payable pari passu with the demands of other

--creditors and is not a preferential charge on the

KhaliluuamanJ.estate. InMaina Bibi v. Chaudh1·i Vakil Ahmad(')

it was held that where the widow is not in the position

of a secured creditor and is otherwise in possession of

the husband's estate with the consent of the heirs, she

is entitled to retain possession of it until her dower

debt is satisfied.

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.

A.manee (') 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 ha5 to be paid before the heirs are

entitled to take anything.

In M aina Bibi v. W asi

Ahmad(')

it was held that she has no right of posses­

sion 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.B. 25 M•d. 658.

121 52 LA. 145.

'

13) 11 w .R. 212.

141 I.L.R. 41 All. 5~.8.

. '

S.C.R. SUPREME COURT REPORTS 753

debt ranks equally with the claims of other creditors t95o

of her husband."

Kapore Chand

In Hamira Bibi v. Zubaida Bibi (') it was observed "'

that dower ranks as a debt and the wife is entitled Kada• unni••

along with the other creditors to have it satisfied on B'gum .t Oth•ro .

the death of the husband out of his estate. Her right, . --

however, is no greater than that of any other un-Khal.ZuzMman J.

secured creditor. Qua the heirs she has a creditor's

lien.

In Imtiaz Begum v. Abdul Karim Khan(') 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 ('), 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 possession until her

dower is satisfied. The same view had been taken

earlier in

Mst. Ghafooran v. Ram

Chandra Das(') by

a single Judge. It was said that her possession

could

not be disturbed till her dower debt was satis-

fied. In MohamedTurabuddin v.

Yasin Begum(') a

Bench of the

Hyderabad High

Court held that the

claim of a widow for dower was in

1the nature of a

secured debt. There

was no other creditor in that

case which arose between the heirs and the widow.

However, in

W ahidunnissa Begum v. Yasin Begum (')

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

/Jl A.LR. 1916

P.O. 46.

(2) A.I.R. 1930 All. 881.

\3/ A.I,R, 1936 All. 600.

14) A.I.R. 1934 All. 168.

(5) 17 D.L,R. 224.

(6/ 32 D.L.R. 421.

•

754 SUPREME COURT REPORTS [ 1950]

\950 of authority is against the proposition that a widow

as

an unsecured creditor has any priority over the K•P

0

"

Chand

other unsecured creditors of her husband. In our

v.

K".d"' u""'"' opinion, the above mentioned two Allahabad decisions

B•~um .t Oth"'· do not lay down the law correctly on this point and

the rule has been correctly laid down in Ameer

Kha.l•lus.oman "· Ammal 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

pro­

perty 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

judg­

ments 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

circum­

stances we will make no order as to costs of these

proceedings.

Appeal allowed.

19~0 f!N THE SUPREME COURT OF INDIA (HYDERABAD).]

Oct. JR.

NARHARI AND OTHERS

v.

SHANKAR AND OTHERS.

[MEHR CHAND MAHAJAN, R. S. NAIK and

KHALILUZZAMAN JJ.J

Res iudicata-Severai a.ppeals arising out of sam' suit-Appeal

disposed of by same judgment-Separate decrees drawn "p-Appeal

from, orie decree only-Maintainability-Res judicata-Limitation

Act, 1908, s. 5-Extension of time-Sufficient cause-Conflict of

decisions .

..4. instituted a. suit for possession of two-thirrls share in an

estate against B and 0 who cloimed a one-third share each in it.

The suit was decreed by the trial court. B ant! 0 preferred

(I) I.L.R. 25 Mad. 658.