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
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
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
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
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.
