JUDGMENT
Rama Rao, J.
1. The appellants are defendants 1 to 3. The plaintiff filed a suit for partition and separate possession of 1/4th share of the properties the averments in the plaint are as follows: The plaintiff’s father late syed Hussain Akbar Hussain was the sole and absolute owner of the suit premises. He died leaving the plaintiff and the defendants as heirs. Plaintiff and 2nd defendant are the sons through his first wife Bibi sabi. Defendants 1 and 4 are the son and daughter of second wife 3rd defendant. The plaintiff and defendants are in possession of hte property. The shares of the plaintiffs, 1st defendant and 2nd defendant are 1/4th share each and the defendants 3 and 4 1/8th share each.
2. The defendants 1 to 3 filed a written statement stating as follows: defendants 1 to 3 are residing in a house No. 4-3-1975 which is made subject matter of partition by the plaintiff. On the death of the plaintiff’s father, the 3rd defendant became entitled to dower amount of 85 and half tolas of gold. Pursuant to settlement the defendants 1 to 4 took actual possession of the house No. 4-3-75, and 78 excluding two rooms the 3rd defendant is in joint possession with defendants 1, 2 and 4 in lieu of payment of dower and she is entitled to retain such possession the plaintiff has bee in possession of the two rooms and collecting rent for one from the tenants. As there is no joint possession the question of partition and right to a share does not arise. In reply to the notice sent by the plaintiff it was stated by defendants 1 to 3 that the plaintiff is in possession of more than his share if the shares are divided taking into consideration the dower amount payable to the 3rd defendant.
3. On the above pleadings the following issues are framed:
1. What are the properties available for partition?
2. Whether the settlement amongst the heirs and de facto partition pleaded in the written statement is true and binding on plaintiff?
3. Whether the dower amount of 3rd defendant is to be paid out of the estate and if so what is the amount?
4. Whether plaintiff is in joint possession or not?
5. Whether the court-fee paid is correct?
6. Whether the suit is barred by time?
7. To what relief?
The learned III Additional Judge, city civil Court, secunderabad found that there was no settlement as pleaded by the defendants with regard to the arrangement of the enjoyment of the house and it is also not true that her possession of the house is in lieu of her claim for dower and as such the claim for dower is barred by limitation. It is also held that the property has to be divided without taking into consideration the claim for ‘ Mehar’ or dower. Ultimately on issue No. 2 it is held that the settlement amongst the heirs and the de facto partition pleaded in the written statement is not true and not binding on the plaintiffs and on issue No. 3 it is held that the dower amount of 3rd defendant need not be paid out of the estate. On issue No. 4 it is held that the plaintiff is in joint possession of hte house. It is further held that the payment of courtfee is correct. It is further held that the question of limitation in a suit for partition does not arise and the plaintiff is entitled to the relief of partition and separate possession of his 1/4th share on the basis of these findings the suit is decreed for partition and separate posession o f1/4th share of the plaintiff. On appeal at the instance of the defendants the learned single Judge upheld the findings of the trial Court and confirmed the decree and judgment.
4. The learned counsel for the appellants contended that the factum of possession of portion of the premises entitles her to claim dower at the time of partition of the properties and as such is not barred by limitation. The learned counsel for the respondent contended that mere possession of the properties does not entitle the 3rd defendant to claim dower and the period of limitation prescribed for claiming the dower is three years from the date of death of the husband and further in view of the fact that the earlier partition set up by the defendants is disbelieved the possession of the 3rd defendant pursuant to the said partition is unlawful.
5. At the out set the reference to the finding of the Court below that the settlement among the heirs and de facto partition is not true and not binding on the plaintiff is necessary. This finding is approved by the learned single Judge. We are not inclined to disturb this finding and as such the partition set up is not true. On the basis of this finding the learned counsel for the appellants seeks to spin out a contention that when the partition is untrue and the possession by the 3rd defendant siad to be pursuant to the siad partition cannot also be relied upon. It must be stated that the possession of the 3rd defendant is not in dispute and so it must be considered whether the possession simpliciter without linking it to unequivocal acceptance of dower can aid the defendant to set up a claim for dower without bar of limitation. The relevant provisions of the mohammadan law touching this aspect may be considered section 292 provides that if the dower is not paid, the wife and after her death her heirs can claim the dower and the period of limitation for a suit to recover prompt dower is 3 years from the date when the dower is demanded and refused or when the marriage is dissolved by death or divorce and the period of limitation to recover deferred dower’ is three years from the date when the marriage is dissolved by death of rivorce and the period of limitation to recover deferred dower is three years from the date when the marriage is dioolved by death or divorce. Section 296 provides that the claim for dower does not entitle the wife to a charge on any specific property of her deceased husband without any force or fraud in lieu of her dower, she is entitled to retain the possession of the property until the dower is satisfied and this right is as against the heirs of her husband and against the creditors of ehr husband. Section 310 provides that the right to widow to retain possession under a claim for dower does not entitle her to alienate the property by sale, mortgage gift or otherwise the learned counsel for the appellant in support of the proposition that the factum of possession of the property of the husband is sufficient for empowering the widow to retain the property till the dower is satisdied, relied upon the decision of the Madras High Court reported in Beeju Bee v. Syed Moorthiya saheb, (1920) ILR 43 mad 214 (AIR 1920 Mad 666) (FB) in this case the widow who was in possession of properties of her husband sold in band sold in 1906 one item of the properties in her possession to the 2nd defendant under sale deed which recited that the sale was made for the mehardebt due to her from her husband according to MohammedanLaw, for discharging other debts and for family expenses. The widow also sold another item out of the properties to the 3rd defendant the plaintiff impeached the sales as invalid the trial Court held that the sales were not binding on the plaintiff and passed a decree for partition. On appeal the judgment was confirmed. On second appeal the finding was called for by the division Bench consisting of PHIlips an d Kumaraswami Sastri. JJ on the following issue:
“whether mehar was due to the 1st defendant on the date of her husband’s death and If so what was its amount?” pursuant to this requisition the subordinate Judge found that the dower or mehar was due to the 1st defendant on the death of her husband and that it was 39 tolas of pure gold. Subsequently the second appeal was referred tothe Full Bench in view of the conflicting decisions. It was found that the Mehar due on the date of husband’s death was on her husband’s death was not paid and there was no evidence that on her husband’s death she was put in possession of the property under any agreement between herself and other heirs as to the dower and it was further found that she was in possession from the date of her husband’s death till she sold the house and the sale deed purports to be for the purpose of paying herself the dower. On these facts and circumstances the Full Bench of the Madras High Court consisting of sir Abdul Rahim, Kt. Offg., chief Justice Mr. Justice oldfield and Mr. Justice, Mr. Justice oldfield and Mr. Justice seshagiri ayyar held that a widow with the express or implied consent of the other heirs of her husband obtains possession of the whole or any part of his estate in satisfaction of or as security of her dower, is entitled to retain such possession till her dower is paid. It is held that the possession must be lawful and should not have been acquired by fraud or by force. In Mt. Maina v. Ch. Vakil Ahmad (AIR 1925 pc 63) it is held that where a mahommedan widow obtains possession of her husband’s estate wihout force or fraud she is entitled to retain possession till her dower debt is paid. The allahabad High Court in Mt. Imtiaz Begum. V. Abdul Karim, (AiR 1930 All 881) held that widow can retain possession against other heirs of of husband till the debt is paid or satisfied out of usufruct of property and in order to entitle her to retain possession it is not necessar that her possession should have been originated with the consent express or implied of her husband or her husband’ heirs the allahabad High Court followed the full bench decision of the madras High Court in (1920) ILR 43 Mad 214: (AIR 1920 Mad 666) (supra) and stretched the principle by holding that the possession simpliciter without fraud or force entitles the widow to retain possession till the dower is satified and possession with consent express or implied or under an agreement with her husband in lieu of dower is not imperative. In Nawab begum v. Hussain Ali Khan (AiR 1937 Lah 589) it is held that the widow has a first charge on the property of the deceased so long as the dower debt, is not paid. In Karpore chand. V. Kidar Nissa the Supreme Court was concerned with the issue whether dower debt can be given priority over other debts on any equitable consideration and in that context it was held that the dower debt cannot be given any preferential charge on the estate and cnstitutes a debt payable paripassu with the demands of other creditors and even in a situation where the widow is in possession of her estate in lieu of her claim for dower witht eh consent of the other heirs or otherwise is not entitled to priority as against his other unsecured creditors. In the context of considering this issue the Supreme Court referred to the decision of the privy council in AIR 1925 pc 63 (supra) and also AIR 1930 All 881 (supra) with approval.
6. The consensus of judicial opinion that emereges from the decisions considered hereinbefore is that if the widow is inducted into possession either by consent or otherwise except by force or fraud she is entitled to retain the possession in lieu of dower payable to her andthe limitation of three years from the date of the death of the husband does not operate in the event of possession of the property by the widow
7. The learned counsel for the respondent contended that the possession set up in 3rd defendant is intertwined with the plea of partition and when partition is disbelived the pack age deal collapsed and the possession as a sequel to partition cannot stand in isolation and as such the plea of possession also should have been negatived. It is true that the trial Court as well as the learned single Judge held that the plea of partition is unfounded. But, however at the same time the factum of possession pleaded by hte 3rd defendant is not dislodged and the concurrent findings have been given that the 3rd defendant is in possession of a portion of the house and in view of the same she is entitled to retain possession until the dowere claim is satisfied therefore the claim for dower by the 3rd defen dant is not barred by limitation. The property is liable for partition subject tothe satisfaction of claim for ‘mehar’ or dower.
8. The judgment and decree of the trial Court and the learned single judge are set aside. Appeal is allowed No costs.
9. Appeal allowed.
