{"id":49641,"date":"1950-10-12T00:00:00","date_gmt":"1950-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/in-the-supreme-court-of-india-vs-kadar-unnisa-begum-and-others-on-12-october-1950"},"modified":"2015-04-05T21:01:03","modified_gmt":"2015-04-05T15:31:03","slug":"in-the-supreme-court-of-india-vs-kadar-unnisa-begum-and-others-on-12-october-1950","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/in-the-supreme-court-of-india-vs-kadar-unnisa-begum-and-others-on-12-october-1950","title":{"rendered":"[In The Supreme Court Of India … vs Kadar Unnisa Begum And Others on 12 October, 1950"},"content":{"rendered":"
Supreme Court of India<\/div>\n
[In The Supreme Court Of India … vs Kadar Unnisa Begum And Others on 12 October, 1950<\/div>\n
Equivalent citations: 1953 AIR 413, \t\t 1950 SCR 747<\/div>\n
Author: S Khaliluzzaman<\/div>\n
Bench: Siddiqui Khaliluzzaman J.<\/div>\n
           PETITIONER:\n[IN THE SUPREME COURT OF INDIA (HYDERABAD).]KAPORE CHAND\n\n\tVs.\n\nRESPONDENT:\nKADAR UNNISA BEGUM AND OTHERS\n\nDATE OF JUDGMENT:\n12\/10\/1950\n\nBENCH:\nSIDDIQUI KHALILUZZAMAN J.\nBENCH:\nSIDDIQUI KHALILUZZAMAN J.\nMAHAJAN, MEHR CHAND\nNAIK R.S.\n\nCITATION:\n 1953 AIR  413\t\t  1950 SCR  747\n\n\nACT:\n    Muhammadan Law--Dower--Widow in possession of  husband's\nestate\tin lieu of dower--Whether entitled to priority\tOVer\ncreditors-Nature of widow's lien for dower.\n\n\n\nHEADNOTE:\n   A Muhammadan widow in possession of her husband's estate\nin lieu of her claim for dower with the consent of the other\nheirs  or otherwise is not entitled to priority\t as  against\nhis other unsecured creditors.\tThere is nothing inherent in\nthe very nature of dower which entitles it to priority.\n748\nAmeer  Ammal v. Sankaranarayana Chetty (I.L.R. 25 Mad  658),\nMeet Meher Ally v. Mst. Areanee (11 W.R. 212), Maina\tBibi\nv. Wasi Ahmad (I.L.R  41 All. 558), Hamira Bibi v.  Zubaida-\nBibi  (A.I.R.  1916 P.C.  46), Imtiaz Begum v.\tAbdul  Karim\nKhan  (A.I.R.<\/a> 1930 All. 881) referred\n   Kulsum  Bibi v. Shiam Sunder Lal (A.I.R. 1936 All.  600),\nMst.  Ghafooran v. Ram Chandra\tDas (A.I.R. 1934 All.  168),\nMohamed\t Turabuddin  v. Yasin Beeum  (17  D.L.R.  224)disap-\nproved.\n  Maina\t Bibi,\tv. Chaudhri Vakil Abroad (52 I.A.  145)\t ex-\nplained.\n\n\n\nJUDGMENT:\n<\/pre>\n
  APPEAL  from\ta judgment of the High Court  of   Hyderabad
\nunder  article 374 (4) of the Constitution  of India:  Civil
\nAppeal No. 189 of 1950.\n<\/p>\n
  Abdul Wahid Owasi, for the appellant.\n<\/p>\n
  Ahmed Saeed Khan, for respondent No. 1.\n<\/p>\n
      1950.  October  12.   The judgment of  the  Court\t was
\ndelivered by
\n     J.\t KHALILUZZAMAN J.–This appeal arises out of  execu-
\ntion  proceedings.  The appellant, Kapurchand, had  a  money
\ndecree,\t amongst  others, against one Mir  Hamid  Ali  Khan,
\nhusband of the respondent Mst. Kaderunnissa. In execution of
\nthe  decree the house in dispute belonging to  the  deceased
\njudgment-debtor was attached. To the attachment the widow of
\nthe deceased raised an objection on the ground that she\t was
\nin  possession\tof it in lieu of her outstanding  dower\t and
\ncould not be dispossessed till her claim was satisfied.\t The
\nobjection  was\tallowed by the executing court\tand  it\t was
\nordered\t that the house be sold subject to the\trespondent’s
\nclaim,\tthe decree-holder being entitled to the surplus,  if
\nany, out of the sale proceeds.\tThere was not much possibil-
\nity  of the house fetching more in the execution  sale\tthan
\nthe amount due on account of dower.  The court took the view
\nthat the widow’s claim for dower had priority over the debts
\ndue to other unsecured creditors and her position was analo-
\ngous to that of a secured creditor.  The decree holder\tmade
\nan application in revision to the High Court but without any
\nsuccess.   He then preferred an appeal to the Judicial\tCom-
\nmittee\tof the State and it is now before us  under  article
\n374 (4) of the Constitution.\n<\/p>\n
749<\/span><\/p>\n
    The sole point for determination in the appeal is wheth-
\ner a widow in possession of her husband’s estate     in lieu
\nof  her claim for dower with the consent of the other  heirs
\nor  otherwise is entitled to priority as against  his  other
\nunsecured  creditors.  It is conceded that the husband\tdied
\nleaving\t the  house  in dispute and  leaving  outstanding  a
\nnumber of debts including the one due to the  decree-holder.
\nThe  house  was not charged or mortgaged by  him  either  in
\nfavour of his wife or in favour of any of the creditors.  If
\nthe husband had created any charge in favour of his wife  in
\nlieu of her claim for dower, then it cannot be doubted\tthat
\nshe  would  have priority over the unsecured  creditors.  No
\nspecific  Quranic  text or any other original  authority  on
\nMuslim law has been cited in support of the contention\tthat
\na widow’s claim for dower stands on a higher, ‘footing\tthan
\nthe  claim of any creditor in respect of an unsecured  debt.
\nReference was made to a text in Sur-ai-Nissa which enjoins a
\nhusband ‘to pay the claim of his wife and it also says\tthat
\nwidows\tand  minors should be  given  favourable  treatment.
\nThis text does not give an absolute protection to the  claim
\nof the widow as against other claims.  On the other hand,  a
\nMuslim\tis enjoined to observe his engagements and  to\tkeep
\nhis contracts faithfully and to discharge his liabilities in
\nan honest manner.  No distinction is made between an injunc-
\ntion  relating to the payment of dower on the one  hand\t and
\nthe  payment of the other debts on the other.\tThe  learned
\nadvocate for the appellant contends that a widow’s claim for
\noutstanding  dower  even when she is in\t possession  of\t her
\nhusband’s  estate in lieu of her claim with the\t consent  of
\nother heirs of the deceased stands on no better footing than
\nthat of unsecured creditors, though in their absence she  is
\nentitled to be paid in full before the estate is distributed
\namong the heirs.  He drew our attention to certain  passages
\nfrom  the holy Quran and from writings of other\t jurists  on
\nthis  subject.\t The  learned counsel  for  the\t respondent,
\nhowever,  argued  that a widow has a lien on  her  husband’s
\nestate\tfor her outstanding dower and when she has   entered
\ninto
\n96<\/span>
\n750<\/span>
\npossession  of\this  house after his  death  she  cannot  be
\ndispossessed till her claim is satisfied either by the heirs
\nor  by the unsecured  creditors.   He  placed reliance on  a
\ndecision of the Hyderabad High Court and also of some  other
\nHigh Courts in India.\n<\/p>\n
A  careful  examination of the various\tauthorities  on\t the
\nsubject\t shows that the proposition of law on  this  subject
\nhas been correctly  enunciated\tin  Tyabji’s Muhammadan\t Law
\n(1940 Edn.) in these terms: (1) A widow by her lien does not
\nhave  any priority over other creditors; (2) Mehr as a\tdebt
\nhas  priority  over other heirs’ claim to  have\t the  estate
\ndistributed among themselves.  These two considerations\t are
\nnot  affected by the fact of her being in or out of  posses-
\nsion of the estate.  It seems clear that unless the  husband
\nby  his\t own act has placed the widow in a  better  position
\nthan  his  other creditors, her claim for dower\t is  in\t the
\nnature\tof an unsecured debt and she has no priority of\t any
\nkind  against the other unsecured creditors of her  husband.
\nThe Quranic text in Surai-Nissa, Ruku 4, enjoins the payment
\nof dower in preference to bequests and inheritance but it is
\nsilent on the question of priority of dower debt in relation
\nto  other creditors. In Mubsoot Sarkhasi, Vol. 29,  Kitabul-
\nfaiaiz,\t page 137, it is pointed out that payment  of  debts
\nhas priority over bequests and wills.  In the administration
\nof  the\t estate of a deceased Muslim the rule laid  down  by
\nearly text writers and Fatwas,\tsuch  as   Fatwa-e-Alamgiri,
\nis  that in the first instance the funeral expenses  of\t the
\ndeceased  should be paid out of the estate and\tthat  having
\nbeen done, the estate should be divided between the legatees
\nand the heirs  after payment of the debts due from him.\t  No
\npriority has been indicated in respect of a dower debt of  a
\nwidow  over other unsecured creditors even if she has  taken
\npossession of her husband’s estate after his death.
\n   It  was  said that the nature of the\t widow’s  claim\t for
\ndower  is  such that it amounts to a lien on  the  husband’s
\nestate.\t The claim for lien is based on the assumption\tthat
\nthe dower debt is consideration for the marriage and is\t not
\nmerely a voluntary debt incurred due to the
\n751<\/span>
\nrespect\t to the wife.  According to  Hamilton’s\t Hedaya(1870
\nEdn.,  page 44), the leading text book on Hanafi law,  if  a
\nperson\tspecifies  a dower of ten or more diams\t and  should
\nafterwards consummate his marriage, or be removed by  death,
\nhis  wife  in either case can claim the whole of  the  dower
\nspecified,  because  by\t consummation her  claim  for  dower
\nbecomes absolute.  The. dower debt becomes her property\t and
\nit  devolves  on  her heirs and has to be paid\tout  of\t the
\nestate of the husband.\tIt has been described as a debt upon
\nthe  husband to be paid out of his estate.  The dower  of  a
\nMuslim woman is a settlement in her favour made prior to the
\nmarriage  contract  and is similar to  the  donatio  propier
\nnuptias\t of the Romans but is of such an  obligatory  nature
\nthat  if  it is not mentioned before or at the time  of\t the
\nmarriage, it is presumed to exist to the extent of a  proper
\ndower amount.  Among the Hebrews the dower settled on a wife
\nwas for her use after the termination of marriage and  among
\nthe  Jews marriages without similar consideration  were\t in-
\nvalid. As pointed out by Mr. Ameer Ali in his book on Muham-
\nmadan  Law, the custom originated in ancient times with\t the
\npayments  made\tby husbands to their wives as  a  means\t for
\ntheir  support\tand as a protection  against  the  arbitrary
\nexercise  of  the power of divorce. The\t Muslim\t concept  of
\ndower has no reference to the price that under some  systems
\nof  law\t was paid to the father of the bride  when  she\t was
\ngiven  in  marriage. On the other hand, it is  considered  a
\ndebt with consideration (for the submission of her person by
\nthe wife).  The result of the above discussion is that dower
\nis purely in the nature of a marriage settlement and is\t for
\nconsideration. It is a claim arising out of contract by\t the
\nhusband and as such has preference to bequests\tand  inheri-
\ntance,\tbut on\tno principle  of Muhammadan Law it can\thave
\npriority  over other contractual debts. In our view,  there-
\nfore,  a dower debt cannot be given any priority over  other
\ndebts  on any equitable consideration or on the ground\tthat
\nthere  is something inherent in its very nature which  enti-
\ntles it to priority.\n<\/p>\n
752<\/span><\/p>\n
It  is now convenient to examine the decided cases on\tthis
\nsubject.   In Ameer  Ammal v. Sankaranarayanan Chetty (1)  a
\nBench of the Madras High Court held that a claim for  unpaid
\ndower constitutes a debt payable pari passu with the demands
\nof other creditors and is not a preferential charge on\t the
\nestate.\t  In Maina Bibi v. Chaudhri Vakil Ahmad (2)  it\t was
\nheld  that where the widow is not in the position of  a\t se-
\ncured  creditor and is otherwise in possession of  the\thus-
\nband’s estate with the consent of the heirs, she is entitled
\nto  retain possession of it until her dower debt  is  satis-
\nfied.  Their Lordships observed that it was not necessary to
\nsay  whether the right of the widow in possession is a\tlien
\nin the strict sense of the term.  Whatever the right may  be
\ncalled, it appears to be founded on the power of a widow  as
\na creditor for her dower to hold the property of her husband
\nof  which  she\thas lawfully, and without  force  or  fraud,
\nobtained  possession  until  her debt  is  satisfied.\tThis
\ndecision  does not place the widow on a higher footing\tthan
\nany other creditor.  As against the heirs all creditors\t are
\nto be paid in priority before the estate can be distributed.
\nIn  Meer Meher Ally v. Mst. Amanee (3) it was held that\t the
\nlien of the widow over the property in her possession is not
\na  lien in the ordinary legal sense of the term and  that  a
\nclaim for dower is in the same position as that of any other
\nordinary  creditor and ranks pari passu with them  and\tlike
\nother debts has to be paid before the heirs are entitled  to
\ntake anything.\tIn Maina Bibi v. Wasi Ahmad (4) it was\theld
\nthat  she has no right of possession against the  creditors,
\nnot  being a secured creditor herself.\t At  page  547\t the
\nfollowing observations occur :-\n<\/p>\n
       “she  cannot  set  up any such  right  of  possession
\nagainst\t creditors claiming to have the debts owing to\tthem
\nfrom  the husband satisfied out of the estate. She is not  a
\nsecured creditor; her claim for her dower
\n(1) I.L.R. 25 Mad. 658.\t\t (3) 11 W.R. 212.A11.538.\n<\/p>\n
(2) 52 I.A. 145\t       (4) I.L.R. 41 All 538.\n<\/p>\n
753<\/span><\/p>\n
debt ranks equally with the claims of other creditors of her
\nhusband,”\n<\/p>\n
    In Hamira Bibi v. Zubaida Bibi (1) it was observed\tthat
\ndower ranks as a debt and the wife is entitled\t along\twith
\nthe  other creditors to have it satisfied on   the death  of
\nthe husband out of his estate.\tHer right,   however, is  no
\ngreater than that of any other unsecured creditor.  Qua\t the
\nheirs  she has a creditor’s lien.  In Imtiaz Begum v.  Abdul
\nKarim  Khan<\/a> (,2) the same view was expressed.  In para.\t 295
\nMr. Mulla in his book on Muhammadan Law has adopted the view
\nthat  dower ranks as a debt and that the widow\tis  entitled
\nalong  with other creditors to have it satisfied out of\t the
\nestate\tand that her right is not greater than that  of\t any
\nother  creditor.   The learned counsel\tfor  the  respondent
\nrelied\ton the decision in Kulsum Bibi v. Shiam\t Sunder\t Lal
\n(3), in which it was held that a widow in possession of\t her
\nhusband’s estate  is entitled as against the other heirs  of
\nher  husband and as against the creditors to retain  posses-
\nsion until her dower is satisfied.   The same view had\tbeen
\ntaken earlier in Mst. Ghafooran v. Ram Chandra Das (4) by  a
\nsingle Judge.  It was said that her  possession could not be
\ndisturbed  till\t her dower debt was satisfied.\t In  Mohamed
\nTurabuddin v. Yasin Begum (5) a Bench. of the Hyderabad High
\nCourt  held that the claim of a widow for dower was  in\t the
\nnature\tof a secured debt.  There was no other\tcreditor  in
\nthat  case  which  arose between the heirs  and\t the  widow.
\nHowever,  in  Wahidunnissa Begum v. Yasin Begum (6)  it\t was
\npointed\t out that the claim of the widow for dower does\t not
\ncreate\tany interest or charge on the property and that\t the
\nposition of a widow is not only that of a creditor where her
\ndower remains unpaid but also of an heir.\n<\/p>\n
    The result of the authorities is that excepting the\t two
\nAllahabad decisions mentioned above  and  a decision of\t the
\nHyderabad High Court, the consensus
\n (1) A.LR. 1916 P.O. 46.\t  14) A.I R. 1934 All. 168.
\n (2) A.I R. 1930 All 881.\t  (5) 17 D.L.R.224.\n<\/p>\n
 (3) A.I.R. 1936 All 600.\t  (6) 32 D.L.R. 4’21.\n<\/p>\n
754<\/span><\/p>\n
of  authority is against the proposition that a widow as  an
\nunsecured creditor has any priority over the other unsecured
\ncreditors  of her husband.  In our opinion, the\t above\tmen-
\ntioned\ttwo  Allahabad\tdecisions do not lay  down  the\t law
\ncorrectly on this point and the rule has been correctly laid
\ndown  in   Ameer Arereal v.  Sankaranarayanan\tChetty\t(1).
\nThere  is nothing repugnant or inequitable according to\t the
\nprinciples  of\tMuhammadan Law in the estate of\t a  deceased
\nMuslim\tbeing  rateably distributed  between  the  unsecured
\ncreditors.\n<\/p>\n
    For the reasons given above we hold\t that the  objection
\nraised by the widow had no substance in it and the executing
\ncourt  should have directed the property to be sold and\t the
\nsale proceeds distributed rateably amongst the decreeholders
\nand the widow. In the result we allow this appeal, set aside
\nthe judgments of the two courts below and direct the execut-
\ning  court to proceed with the execution in accordance\twith
\nthe observations made herein.  in the circumstances we\twill
\nmake no order as to costs of these proceedings.\n<\/p>\n
\t\t\t\t Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India [In The Supreme Court Of India … vs Kadar Unnisa Begum And Others on 12 October, 1950 Equivalent citations: 1953 AIR 413, 1950 SCR 747 Author: S Khaliluzzaman Bench: Siddiqui Khaliluzzaman J. PETITIONER: [IN THE SUPREME COURT OF INDIA (HYDERABAD).]KAPORE CHAND Vs. RESPONDENT: KADAR UNNISA BEGUM AND OTHERS DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-49641","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\n[In The Supreme Court Of India ... vs Kadar Unnisa Begum And Others on 12 October, 1950 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/in-the-supreme-court-of-india-vs-kadar-unnisa-begum-and-others-on-12-october-1950\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"[In The Supreme Court Of India ... vs Kadar Unnisa Begum And Others on 12 October, 1950 - 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