1. This property in suit was once held by a man of the name of Wazir. He disappeared and his wife Bandi Bibi took possession of the property as against the rightful heirs by right of succession. She sold the property on 16th September 1873 to two persons for a sum of Rs. 700. Ultimately one of these, Mohammad Ali became owner of the entire property by purchasing the other portion of the property by right of pre-emption. The plaintiff of the present suit is legal heir of Wazir and sued the defendants who are successors-in-interest of Mohammad Ali for recovery of possession of the property. His case was that Mt. Bandi Bibi was in possession of the property in lieu of a dower debt of Rs. 51, that the debt had been paid out of the usufruct, that what was transferred was a right of retention of property until her dower debt was paid and that the defendants were liable to give up possession and to render accounts. The learned Judge of the lower appellate Court held that what was sold in 1873 was not the right of retention of the property till dower debt was paid but the property itself, that consequently on such sale the heirs of the husband became entitled immediately to take possession of the property and that Mohammad Ali’s possession from 1873 became adverse to the heirs. He therefore held that the suit was time barred. He further held that the suit was also barred by the provisions of Section 233(k), Land Revenue Act, because the plaintiff had not raised the question of his title to this property at a partition of zamindari property in which suit both he and the defendants were parties. In my opinion the second point is dependent on the first; if the defendants held the property merely by way of security for payment of dower debt, the plaintiff was not entitled to immediate possession and could not raise the question of his title in the suit for partition. If on the other hand, there was a transfer of property in 1873 the suit would be time barred as well as barred under the provisions of Section 233(k), Land Revenue Act.
2. There is a conflict of authority as to whether the widow’s right of retention is transferable or not. In some cases it has been held that the right of retention is a personal right and cannot therefore be transferred. In other cases it has been held that the right of retention may be considered as property under the Transfer of Property Act and is transferable. In the case of Maina Bibi v. Chaudhri Vakil Ahmad A.I.R. 1925 P.C. 63, their Lordships of the Privy Council have made observations which would favour the view of certain Indian Courts that such right of retention is not transferable. Adopting, however, the view current in this Court that the right of retention may be sold, it is necessary to enquire what was transferred under the sale-deed of 1873. If Bandi Bibi alienated the property itself and delivered possession of the property to the alienee, her husband’s other heirs were entitled to recover possession of the property from the alienee without payment to him of the dower debt. In my opinion the learned Subordinate Judge has given very satisfactory reasons for holding that the transfer was of property and not of the right of retention. It was rightly pointed out by the learned Counsel for the respondents that if the intention had been to transfer only the right of retention, the important matter of the amount of the dower debt would have been prominently mentioned in the deed. That amount is not mentioned. Further the sale consideration is Rs. 700 and as according to the plaintiff, the dower debt was only Rs. 51, it is certain that interest beyond the right of retention for a sum of Rs. 51 was transferred. The zamindari rights having been transferred, Wazir’s heirs became entitled to recover the property in 1873 and a suit for its recovery in 1925 is clearly time barred. I dismiss this appeal with costs.