Andhra HC (Pre-Telangana)
Ghouse Yar Khan And Ors. vs Fatima Begum And Ors. on 19 August, 1987
Equivalent citations: AIR1988AP354, AIR 1988 ANDHRA PRADESH 354, (1988) 1 CURCC 477, (1987) 2 ANDH LT 639, (1987) 2 APLJ 282
JUDGMENT Rama Rao, J.
1. The defendants are the appellants. The plaintiffs filed the suit for recovery of possession of the house bearing No. 5-9-1108 situate at Gunfoundry, Hyderabad together with an amount of Rs.60.000/- towards mesne profits.
2. The avemments in the plaint may be briefly stated; After the death of Nawab Emad Jung in 1920 in a suit f or partition of Matruka property his widow Waheedunnisa Begum was granted a decree to hold possession of the plaint schedule house in consideration of her dower amount to the tune of Rs.2,15,000.00. Waheedunnisa Begum sold the house and she has no authority to sell as she had right of enjoyment only during her life time. The plaintiffs are the heirs of late Samiuddin Mohd. the son of late Emad Jung and therefore the plaintiffs are entitles to the property. The plea of the 1st defendant is that after the death of Nawab Emad Jung his widow Waheedunnisa Begum filed O.S 1/1346 Fasli recovery of dower and for partition of Matruka. The Darul Qaza Court' passed a declaratory decree that Begum is entitled to retain possession of half portion of the property bearing Door No. 1190 till Meher amount is paid. The said half portion of the house was excluded from the properties liable for partition and the preliminary decree was passed for the rest of the properties. The decree was finally confirmed by the Judicial committee of the Dominions of the Nizam. Pursuant to the decree Begum was enjoying possession of the suit property. Late Samiuddin Mohammad was having only 1/9th share in the entire Matruka property and he never questioned the- right of Begum in the house property. The sale of the property in favour of defendants 1 to 8 is for a valid consideration. The question of claiming any share in the suit property by late Samiuddin or plaintiff does not arise when this property was not made available for partition. The heirs of late Emad Jung failed to pay the Meher amount and as such she was exercising her rights as exclusive owner of the suit property. Samiuddin Ahmed during his life time did not choose to file a suit for recovery of possession of the plaint schedule property. The suit is barred by time and the suit seeking possession without asking for relief to the title is not maintainable. Defendants 2 to 6 adopted the written statement of the 1st defendant and defendants 7 and 8 remained ex parte. The plea of the 9th defendant is that Waheedunnisa Begum was holding the property in consideration of her dower and she had a right to retain possession till the payment of Meher. She could not have executed sale deed as she was suffering from paralysis two years before her death and the sale deed is a fabricated one. 9th defendant has 1/Sth share in the entire Matruka left by her father Samiuddin Mohamad and consequently the 9th defendant is entitled to 1/Sth share. Waheedunnisa Begum is not entitled to alienate the suit house and she is not entitled to deliver possession of the house to defendants 1 to 8.
3. On the basis of the pleadings set out above. the following issues are framed:
1. Whether the plaintiffs are entitled to the suit property?
2. Whether the plaintiffs are entitied to the suit property?
3. Whether the sale deed dated 24-1-1982 in favour of the defendants is not valid and binding on the plaintiffs?
4. To what profits, if any, are the plaintiffs entitled?
5. Whether the valuation of the suit and court fee paid are not correct?
6. Whether the suit is barred by time?
7. Whether the suit as framed is not maintainable?
8. To what relief?
4. The trial court held that by virtue of the judgment of Judicial Committee of the erstwhile State of Hyderabad confirming the decrees covered by Exs. B-1and B-2 Waheedunnisa Begum, the widow is entitled to retain the possession of the suit house in lieu of dower and till the dower amount is paid. It is further held that the widow has no right to sell the property and as such the sale is invalid and not binding on plaintiffs and 9th defendant. It is held that the compromise covered by Ex. A -1 does not bind Waheedunnisa Begum as she was not made a party to the compromise decree. It is further held that the decree covered by Ex. B-1 and B-2 confirmed by the judicial committee and the judgment and decree of Darul Quaba Court passed in O.S. No. 1/1346 Fasli operate as res judicata. Finally it is held that the plaintiffs and defendants are entitled for recovery of possession of 15/16th share in ,he suit property. It held that the court-fee Braid is correct and the suit is not barred by limitation and the plaintiff and 9th defendant are entitled to mesne profits for a period of 3 years preceding the suit. It is also held that the suit as framed is maintainable and the plaintiffs and 9th defendant are entitled to a decree for recovery of possession. notwithstanding the fact that they did not seek for declaration of title.
The learned counsel for the Appellants contended that the widow is entitled to convey absolute interest as she has the right to retain possession in lieu of dower debt and such right is heritable and alienable. The learned counsel for the respondents seeking to sustain the judgment of the trial court contended that the widow has no right to transfer the property and the sale deed purporting to convey absolute rights and possession is illegal and the transfer to the extent of right to possession or dower amount is not saved.
5. Before dilating upon the main contention the subsidary contention of Sri Sadatullah Hussaini learned counsel for. respondents may be considered. It is contended that, the judicial committee held that the right to dower is barred by time and is such the right to property founded upon the claim for dower does not subsist. This approach is inconsistent with unequivocal Declaration that the widow is entitled to retain Possession in lieu of dower. Further the bar of limitation for claim to dower. is not relevant when the widow is in possession of the property in lieu of dower. In Syed Yousuf Akkbar Hussaini v. Syed Murtuza Akbar Hussaini the division .3ench comprising Raghuvir and Rama Rao, J., held that if the widow is inducted into Possession of husband's estate either by consent or otherwise except by force or fraud or he is entitled to retain the possession in lieu of money payable to her and the limitation of three years for claim from the date of the death of the husband does not operate in the event of such possession.
6. The learned counsel for the appellants relied upon the decision in Beeju Bee v. Moorthuja Sahib AIR 1920 Mad 666 (FB) wherein on the death of one Syed Amin Sahib the plaintiff the son of the deceased filed a suit for partition. The widow who was in possession of the properties sold one item of immoveable property left by her husband and the sale deed recites that the property was in possession of the widow and was sold for the dower debt due to her from her husband according to Mahomadan law for discharging other debts and for family expenses. The two questions that have been referred to the Full Bench are whether the' Mahomedan widow who continues to be in possession of her husband's property is entitled to be paid her dower before the property of which she is in possession is divided in the partition and whether the purchaser from the widow has the same right as the widow when the alienation is impeached by the other heirs. In so far as the first question is concerned, Abdur Rahim, Offg. C.J. held that a Mohamadan widow is entitled to retain possession of the property as against the heirs until her dower debt is satisfied even though such possession is not obtained with consent of her husband or his other heirs. In so far as the second question, the learned Chief Justice held as follows: -
"On principle, the right of the widow to retain possession till the satisfaction of her dower debt must, in my opiniom be as against the claims of the heirs to be right capable of descending to her heirs and of being transferred by her along with the right to dower. The law gives her the right not because she is the widow of her deceased husband, but in her capacity as one of his creditors. When the widow dies, all her rights of the nature of or in connection with property descend under the Mohomedan law to her heirs and there seems to be no reason to make an exception to the rule with respect to this right of heirs which it may be mentioned would often be a very valuable right".
It is further held that she could transfer her right to possession along with the dower debt as this is sustained on the basis of justice, equity and good conscience as recognised in S. 4,3 of the Transfer of Property Act and the purchaser is entitled to retain possession of the property sold to him as against the heirs until the dower debt is satisfied. Oldfiled, J. agreed with this conclusion, Seshagiri Aiyar, J. in a separate judgment held as follows : -
"Assuming that the widow has taken possession with the consent of the heirs and lawfully, I fail to see why her remedies should not be transferred. There is considerable authority for the proposition that it can be inherited".
It is further held as follows:
"The principle of subrogation is well recognized in India, and the principle of equity which compels a plaintiff to discharge a lawful debt before recovering possession has been recognized in cases of sales by widows, by managers and by cotenants. I fail to see why the principle is not applicable to the case of a sale by a widow. The sale proceeds were applied to pay the dower-debt. Therefore the vendee stood in the shoes of the vendor to the extent of the rights which she had in the property sold. I am therefore, of opinion that the right which the widow had to remain in possession for her dower is capable of being transferred".
The Full Bench held that the widow is entitled to transfer her right to possession of the property and payment of dower and this decision is squarely applicable to the situation The learned counsel for the respondent contended that this view is shaken by the Privy Council decision. In Mt. Maina v. Ch. Vakil Ahmad, AIR 1925 PC 63 wherein the relief sought for by the plaintiffs is for recovery of possession of the property gifted by the widow who was in possession in lieu of her dower debt or in the alternative they may be put in possession on their paying the amount due towards dower debt. The widow was in possession of the property and the plaintiffs failed to pay the dower debt to the widow before the stipulated date. In the context of considering this aspect, Lord Atkinson voicing the opinion of the Privy Council held as follows : -
'It was contended, as their Lordships understood, that Musammat Maina Bibi had by the deeds of 1907assigned both her dower- debt and her right to hold possession of her husband's estate until that debt was paid. It is doubtful whether she could have done either of these things but however that may be, it is clear she, in fact, never purported on attempted to do either of them. On the contrary, in those deeds she described her set as the absolute owner of the property of her deceased husband, and purports to confer that absolute ownership to her donees. There is no ground for the contention if it has beer really put forward, that because these deed fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow's dower-debt and her right to hold possession of the lands till that debt is paid. By giving up the possession of the lands, as in her deeds she alleges she had done, she has undoubtedly lost her right to hold the possession of them. Their Lordships express no opinion on the point whether her representatives may not be entitled to recover the unsatisfied balance of the dower-debt. If she has that right this judgment does not alter it or interfere with its exercise in any way. She and her advisers have in their Lordships opinion taken an entire erroneous view of the effect of the non-payment by the plaintiff in the suit of 1902 of the sum decreed to be due to her. That failure did not convert her into the absolute owner of the immoveable property of her deceased husband, of which she has been in possession nor did it confer upon her any proprietary interest in it or any right to dispose of it".
7. The learned counsel for the appellants Sri Madhava Reddy maintained that this decision turned upon different circumstances as the widow transferred the property by way of gift and in any event the Privy Council expressly left open the issue as to the right of the widow to assign her right to possession and dower debt and further the widow in that case acquired absolute rights on the failure to pay dower debt within stipulated time and in view of this the observations extracted above should be considered as obiter. The gift envisages completeness of the grant and it is whole and indivisible transaction. The gift connotes the transfer of the entirety of the bundle of rights and the conveyance of the right to possession alone is not separable and not susceptible to sifting of right to transfer right to possession coupled with payment of dower. Further the Privy Council left open t he issue whether right to possession and dower debt can be alienated. Though the sale purports to convey absolute rights the conveyance of the right to possession under such sale deed can be sustained. Further in view of the fact that the widow acquired absolute rights in the circumstances set out in the Privy Council case certain observations came as a side wind. Subsequently the Madras High Court while considering this aspect in Bhavadasan Nambudiripad v. Narayana Nair, AIR 1943 Mad 550 Leach, C.J. and Lakshmana Rao. J. held that the Privy Council did not have the effect of overruling-the decision of the Full Bench in AIR 1920 Madras 666, (supra) In Cooverbai Nasarwanji v. Hayatbi, AIR 1943 Bom 372 the Division Bench of the Bombay High Court held that the widow's leiu for dower is heritable and transferable, In Hussain v. Rabimkhan, AIR 1954 Mys 24 the Mysore High Court after review of the decisions held that the widow can retain possession until her dower debt is paid and that right is heritable and may be transferred In Zobair Ahmad v. Jain Nandan Prasac Singh, the Division Bench held that the dower debt of Mohammadar widow is not a charge upon the property and her interest in the property is restricted in it! enjoyment to her personally within the meaning of Sec. 6(d) of Transfer of Property Act and is not alienable. It is further held that the view expressed by the Full Bench of the Madras High Court "cannot be-held to be authoritative" in view of the decision of the Privy Council in AIR 1925 PC 63 (supra).
8. The Mohammadan widow is entitled to retain possession of the property in lieu o dower debt payable to her and such right heritable and alienable. In the event of sale of such property the purchasers step into this shoes of the widow and acquire right to possession coupled with right to payment o dower notwithstanding the recital in the sale deed purporting to convey absolute right. The rights of the widow to transfer her right in the property for consideration is not fettered. Though the sale deed executed b the widow purports to convey absolute right such sale be sustained to the extent of right t, possession accompanied by the right to payment of dower debt. We are unable to agree with the view of the Patna High Court in (supra). The Full Bench decision of the Madras High Court in AIR 1920 Mad 666 (supra) is squarely applicable to the situation in the instant case.
9. In the result, the judgment and preliminary decree of the trial court for partition and separate possession of 15/16th share in the suit property in favour of plaintiffs and 9th defendant and the decree for mesne profits are set aside. Appeal allowed. No costs throughout.
10. Appeal allowed.