Patna High Court
Zobair Ahmad And Anr. vs Jainandan Prasad Singh on 5 August, 1959
Equivalent citations: AIR1960PAT147, AIR 1960 PATNA 147, ILR 39 PAT 1
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit which is the subject-matter of this appeal the plaintiffs asked for a decree for possession with mesne profits with regard to 14 annas share in certain raiyati lands and a dilapidated house described in Schedule 1 of the plaint. The following pedigree will indicate the relationship between the parties:
SALAMAT ______________|__________________ | | | | Sakram Saliman Marian Tetu | | Bashiruddin Naffisa (defnt. 2) _____________ | | Zobair Ahmed Zaibunnisa (plaintiff 1) (plaintiff 2) Bashiruddin, who was admittedly the owner of the 16 annas of the property, died in the year 1937. It appears that on 7-5-1945, Naffisa and Bibi Saliman executed a sale-deed (Ext. B) in favour of defendant No. 1 in respect of the 16 annas share in the properties in dispute. This sale-deed was executed by Bibi Naffisa on her own behalf as well as the guardian of her two children, namely, the two plaintiffs. After attaining majority the two plaintiffs filed the present suit for recovery of possession of their 14 annas share in the properties. The allegation was that their mother had no right to convey the property to defendant No. 1. The suit was contested by defendant No. 1 on the ground that defendant No. 2 came in possession of the properties in lieu of her dower debt, that defendant No. 2 was appointed the executor of the properties of Bashiruddian and the legal guardian of the plaintiffs and that the transaction was for the benefit of the plaintiffs and it could not, therefore, be impeached. The trial court decreed the suit in favour of the plaintiffs but that decree has been set aside by the lower appellate court in appeal.
2. The main question of law involved in this case is whether defendant No. 1 acquired a valid title to the property in dispute by virtue of the sale deed (Ext. B) executed by Naffisa and Bibi Saliman in favour of defendant No. 1 with regard to the 10 annas share of the properties. The lower appellate court has construed the document (Ext. B) as showing that the widow Naffisa had transferred her rights of possession as the holder of the property in lieu of her dower debt and not an absolute transfer of 16 annas share in favour of defendant No. 1. Accordingly the lower appellate court has held that Naffisa transferred ner right of possession which would enure to her in her lifetime or until her dower debt was satisfied in favour of defendant No. 1. For these reasons the lower appellate court has held that defendant No. 1 had validly acquired the right of possession of the disputed properties by virtue of the document (Ext. B) executed by Naffisa and Bibi Saliman. The lower appellate court has, therefore, dismissed the suit brought by the plaintiffs for recovery of possession,
3. In holding that the widow Naffisa had transferred the right of possession and the transferee had acquired the right of possession by the document (Ext. B) till the lifetime of Naffisa or until the dower debt was satisfied the lower appellate court has followed the decision of a Division Bench of this High Court in Abdur Rahman v. Wall Mohammad, 4 Pat LT 267 : (AIR 1923 Pat 72), where it was held by Dawson Miller, C.J. and Mullick, J. that according to the Muhammadan Law the widow has the right to possession of the properties of her husband in lieu of the dower debt, and so long as her dower debt remains unsatisfied and she does not transfer the dower debt itself she can transfer for her lifetime possession of the property.
There is a similar decision in Mt. Bibi Makbulunnissa v. Mt. Bibi Umatunnissa, 4 Pat LT 272 : (AIR 1923 Pat 33) where Courts and Das, JJ. held that the right of the Muhammadan widow to hold the property as a security for the dower debt and to continue in possession thereof until the dower debt was satisfied was property which was both heritable and transferable. In our opinion, the authority of both these decisions, namely, 4 Pat LT 267 : (AIR 1923 Pat 72) and 4 Pat LT 272 : (AIR 1923 Pat 33) has been shaken by a subsequent decision of the Privy Council in Mt. Maina Bibi v. Vakil Ahmad 52 Ind App 145: (AIR 1925 PC 63) in which the widow of a deceased Muhammadan was in possession of her husband's estate in lieu of her dower and the heirs of the deceased Muhammadan obtained a decree against her to the effect that they should have possession of their shares of the estate upon payment of a proportionate part of the dower debt within six months and that upon failure to pay their suit should be dismissed.
After six months had elapsed without the payment being made, the widow made by deed a gift of the estate and parted with possession of it to the donees. Several years later the same heirs sued the widow and the donees for possession of their shares. It was held by the Judicial Committee that the suit was not barred by res judicata owing to the earlier decree and that the plaintiffs were entitled to possession unconditionally, no opinion being expressed as to whether the representatives of the widow could in some other suit recover the unsatisfied portion of her dower debt. In the course of the judgment Lord Atkinson has stated as follows at page 159 (of Ind App): (at p. 70 of AIR) :
"It was contended, as their Lordships understood, that Musammat Maina Bibi had by the deeds of 1907 assigned 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, if is clear she, in fact, never purported or attempted to do either of them. On the contrary, in those deeds she describes herself as the absolute owner of the property of her deceased husband, and purports to convey that absolute ownership to her donees.
There is no ground for the contention, if it has been really put forward, that because these deeds fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow's dower debt & 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 has done, she has undoubtedly lost her right to hold the possession of them."
In our opinion the decision of the Judicial Committee in 52 Ind App 145 : (AIR 1925 PC 63) overrules by implication the previous decisions of this High Court in 4 Pat LT 267: (AIR 1923 Pat 72) and 4 Pat LT 272 : (AIR 1923 Pat 33) and the view expressed in those two Patna decisions is, therefore, no longer authoritative. In Sheikh Mohammad Zobair v. Mt. Bibi Sahidan, AIR 1942 Pat 210 it was observed by Shearer, J. that the dower debt of Muhammadan widow is not, properly speaking, a charge upon the property of her husband, and the interest which she has in the property in her possession in lieu of dower debt is therefore an interest restricted in its enjoyment to her personally within the meaning of Section 6(d) of the Transfer of Property Act, and as such is not capable of alienation.
In a later case. Ram Prasad Singh v. Bibi Khodaijatul Kubra, AIR 1944 Pat 163 also a Division Bench consisting of Varma, and Manohar Lall, JJ., expressed the view that a Muhammadan widow who was in possession of her husband's property in lieu of her dower debt could not mortgage her right of possession. It was held by both the learned Judges in that case that the previous decision of the Patna High Court in 4 Pat LT 267 : (AIR 1923 Pat 72) was no longer a good law in view of the decision of the Privy Council in 52 Ind App 145 : (AIR 1925 PC 63).
In another case, Abdul Samad v. Alimuddin, AIR 1944 Pat 174, a Division Bench consisting of Varma and Reuben. JJ. reiterated the view that the right of a Muhammadan widow to remain in possession of her husband's property until the satisfaction of her dower debt was a right restricted to her personally and was not capable of alienation whether with or without the dower debt. In that case a Mudammadan widow was in possession of one third share in a house. She as an heir was entitled to one-twelfth of the house. She, however transferred the whole and entire one-third share in the house which had been and was in her possession and occupation as absolute proprietor in lieu of dower debt.
It was held in these circumstances by the learned Judges that what the widow could transfer by the sale deed was only her right, title and interest in the property, namely, one-twelfth share and that she could not transfer her right to possession of the property in lieu of her dower debt. In this case also Reuben, J. expressed the view that the matter has been set at rest by the decision of the Judicial Committee in 52 Ind App 145 :(AIR 1925 PC 63) and that the decision of the Patna High Court in 4 Pat LT 267 : (AIR 1923 Pat 72) was no longer good law.
Reference was made in the course of the argument to the decision of a Full Bench of the Madras' High Court in Beeju Bee v. Moorthuja Sahib, AIR 1920 Mad 666 which expressed the contrary view. But. in our opinion, precedence must be given to the decision of the Privy Council in 52 Ind App 145 : (AIR 1925 PC 63) and the view expressed by the Madras High Court cannot be held to be authoritative in view of the decision of the Privy Council in 52 Ind App 145 : (AIR 1925 PC 63).
4. For these reasons we hold that this appeal must be allowed, the decree of the lower appellate court must be set aside and the plaintiffs must be granted a decree in terms of the decree granted by the trial Court. We accordingly allow this appeal, set aside the decree of the lower appellate court and restore the decree of the trial court.
5. We allow this appeal with costs.