JUDGMENT
1. The facts out of which this appeal arises are as follows : One Zahur-ul-Husan died on the 21st of February 1904, leaving him surviving the plaintiff Chaudhri Nur-ul Hasan, his brother, and the defendant No. 1, his daughter. (It was alleged by the defendant that he also left a widow, Musammat Begam Bibi, bat this the Court below has found to be incorrect). The plaintiff complains that the defendant No. 1 has got more than her share of the property of the deceased Zihur-ul-Hasan, and he accordingly brings this suit that he may be put into possession of a moiety share in the property and mesne profits.
2. The Court of first instance partially decreed the plaintiffs’ claim. The lower Appellate Court modified the decree of the Court of first instance.
3. The only question which we have to decide in the present appeal is the following. It is stated that Musammat Tahirunnissa was peaceably in possession of the estate of her father, that she was entitled as heir to her mother to the letter’s dower, and that just as her mother, had she lived and got peaceably into possession of her husband’s estate, might have remained in possession of it until her dower was paid, the defendant as her heir has the same right. Doctor Tej Bahadur, on behalf of the appellant, quotes the ruling in Ali Bakhsh v. Allah Dad Khan. He says that the case and the authorities which are mentioned in the judgment clearly establish the law that a widow who gets into possession is entitled to remain in possession until her dower-debt is paid, and he contends that the case is an authority that the right she had descends to her heirs.
4. It seems to us that there is a fallacy in the argument. Possibly the case would be an authority for holding that if the widow had got peaceably into possession of her husband’s estate after his ” death, the right which she had to remain in possession would descend to her heirs. But in the present case the widow never got into possession, (according to the finding she predeceased her husband) and her husband had not put her into possession. The very words in the judgment of their Lordships of the Privy Council in the case of Musammat Bebee Bachun v. Sheikh Hamid Hussein 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113 : 20 Eng. Rep. 828 : 2 Suth. P.C.J. 531 : 3 Sar. P.C.J. 39. show that the widow has no legal right to go into possession. Her right is that if she gets peaceably into possession without force or fraud, she is entitled to remain in possession until her dower-debt is paid. If the widow has no legal right to take possession, such a right cannot descend to her heirs because she never had it.
5. In our opinion the view taken by the Court below was correct and we dismiss the “appeal with costs including in this Court fees on the higher scale.
