Kapore Chand Vs. Kadar Unnisa Begum
& Ors  INSC 23 (12 October 1950)
SIDDIQUI KHALILUZZAMAN J.
MAHAJAN, MEHR CHAND NAIK R.S.
CITATION: 1953 AIR 413 1950 SCR 747
Muhammadan Law--Dower--Widow in possession of
husband's estate in lieu of dower--Whether entitled to priority Over
creditors-Nature of widow's lien for dower.
A Muhammadan widow in possession of her
husband's estate in lieu of her claim for dower with the consent of the other
heirs or otherwise is not entitled to priority as against his other unsecured
creditors. There is nothing inherent in the very nature of dower which entitles
it to priority.
748 Ameer Ammal v. Sankaranarayana Chetty
(I.L.R. 25 Mad 658), Meet Meher Ally v. Mst. Areanee (11 W.R. 212), Maina Bibi
v. Wasi Ahmad (I.L.R 41 All. 558), Hamira Bibi v. ZubaidaBibi (A.I.R. 1916 P.C.
46), Imtiaz Begum v. Abdul Karim Khan (A.I.R. 1930 All. 881) referred Kulsum
Bibi v. Shiam Sunder Lal (A.I.R. 1936 All. 600), Mst. Ghafooran v. Ram Chandra
Das (A.I.R. 1934 All. 168), Mohamed Turabuddin v. Yasin Beeum (17 D.L.R.
224)disapproved. Maina Bibi, v. Chaudhri Vakil Abroad (52 I.A. 145) explained.
APPEAL from a judgment of the High Court of
Hyderabad under article 374 (4) of the Constitution of India: Civil Appeal No.
189 of 1950.
Abdul Wahid Owasi, for the appellant.
Ahmed Saeed Khan, for respondent No. 1.
1950. October 12. The judgment of the Court
was delivered by J. KHALILUZZAMAN J.--This appeal arises out of execution proceedings.
The appellant, Kapurchand, had a money decree, amongst others, against one Mir
Hamid Ali Khan, husband of the respondent Mst. Kaderunnissa. In execution of
the decree the house in dispute belonging to the deceased judgment-debtor was
attached. To the attachment the widow of the deceased raised an objection on
the ground that she was in possession of it in lieu of her outstanding dower
and could not be dispossessed till her claim was satisfied. The objection was
allowed by the executing court and it was ordered that the house be sold
subject to the respondent's claim, the decree-holder being entitled to the
surplus, if any, out of the sale proceeds. There was not much possibility of
the house fetching more in the execution sale than the amount due on account of
dower. The court took the view that the widow's claim for dower had priority
over the debts due to other unsecured creditors and her position was analogous
to that of a secured creditor. The decree holder made an application in
revision to the High Court but without any success. He then preferred an appeal
to the Judicial Committee of the State and it is now before us under article
374 (4) of the Constitution.
749 The sole point for determination in the
appeal is whether a widow in possession of her husband's estate in lieu of her
claim for dower with the consent of the other heirs or otherwise is entitled to
priority as against his other unsecured creditors. It is conceded that the
husband died leaving the house in dispute and leaving outstanding a number of
debts including the one due to the decree-holder.
The house was not charged or mortgaged by him
either in favour of his wife or in favour of any of the creditors. If the
husband had created any charge in favour of his wife in lieu of her claim for
dower, then it cannot be doubted that she would have priority over the
unsecured creditors. No specific Quranic text or any other original authority
on Muslim law has been cited in support of the contention that a widow's claim
for dower stands on a higher, 'footing than the claim of any creditor in
respect of an unsecured debt.
Reference was made to a text in Sur-ai-Nissa
which enjoins a husband 'to pay the claim of his wife and it also says that
widows and minors should be given favourable treatment.
This text does not give an absolute
protection to the claim of the widow as against other claims. On the other
hand, a Muslim is enjoined to observe his engagements and to keep his contracts
faithfully and to discharge his liabilities in an honest manner. No distinction
is made between an injunction relating to the payment of dower on the one hand
and the payment of the other debts on the other. The learned advocate for the
appellant contends that a widow's claim for outstanding dower even when she is
in possession of her husband's estate in lieu of her claim with the consent of
other heirs of the deceased stands on no better footing than that of unsecured
creditors, though in their absence she is entitled to be paid in full before
the estate is distributed among the heirs. He drew our attention to certain
passages from the holy Quran and from writings of other jurists on this
subject. The learned counsel for the respondent, however, argued that a widow
has a lien on her husband's estate for her outstanding dower and when she has
entered into 96 750 possession of his house after his death she cannot be
dispossessed till her claim is satisfied either by the heirs or by the
unsecured creditors. He placed reliance on a decision of the Hyderabad High
Court and also of some other High Courts in India.
A careful examination of the various
authorities on the subject shows that the proposition of law on this subject
has been correctly enunciated in Tyabji's Muhammadan Law (1940 Edn.) in these
terms: (1) A widow by her lien does not have any priority over other creditors;
(2) Mehr as a debt has priority over other heirs' claim to have the estate
distributed among themselves. These two considerations are not affected by the
fact of her being in or out of possession of the estate. It seems clear that
unless the husband by his own act has placed the widow in a better position
than his other creditors, her claim for dower is in the nature of an unsecured
debt and she has no priority of any kind against the other unsecured creditors
of her husband.
The Quranic text in Surai-Nissa, Ruku 4,
enjoins the payment of dower in preference to bequests and inheritance but it
is silent on the question of priority of dower debt in relation to other
creditors. In Mubsoot Sarkhasi, Vol. 29, Kitabulfaiaiz, page 137, it is pointed
out that payment of debts has priority over bequests and wills. In the
administration of the estate of a deceased Muslim the rule laid down by early
text writers and Fatwas, such as Fatwa-e-Alamgiri, is that in the first
instance the funeral expenses of the deceased should be paid out of the estate
and that having been done, the estate should be divided between the legatees
and the heirs after payment of the debts due from him. No priority has been
indicated in respect of a dower debt of a widow over other unsecured creditors
even if she has taken possession of her husband's estate after his death.
It was said that the nature of the widow's
claim for dower is such that it amounts to a lien on the husband's estate. The
claim for lien is based on the assumption that the dower debt is consideration
for the marriage and is not merely a voluntary debt incurred due to the 751
respect to the wife. According to Hamilton's Hedaya(1870 Edn., page 44), the leading
text book on Hanafi law, if a person specifies a dower of ten or more diams and
should afterwards consummate his marriage, or be removed by death, his wife in
either case can claim the whole of the dower specified, because by consummation
her claim for dower becomes absolute. The. dower debt becomes her property and
it devolves on her heirs and has to be paid out of the estate of the husband.
It has been described as a debt upon the husband to be paid out of his estate.
The dower of a Muslim woman is a settlement in her favour made prior to the
marriage contract and is similar to the donatio propier nuptias of the Romans
but is of such an obligatory nature that if it is not mentioned before or at
the time of the marriage, it is presumed to exist to the extent of a proper
dower amount. Among the Hebrews the dower settled on a wife was for her use
after the termination of marriage and among the Jews marriages without similar
consideration were invalid. As pointed out by Mr. Ameer Ali in his book on Muhammadan
Law, the custom originated in ancient times with the payments made by husbands
to their wives as a means for their support and as a protection against the
arbitrary exercise of the power of divorce. The Muslim concept of dower has no
reference to the price that under some systems of law was paid to the father of
the bride when she was given in marriage. On the other hand, it is considered a
debt with consideration (for the submission of her person by the wife). The
result of the above discussion is that dower is purely in the nature of a
marriage settlement and is for consideration. It is a claim arising out of
contract by the husband and as such has preference to bequests and inheritance,
but on no principle of Muhammadan Law it can have priority over other
contractual debts. In our view, therefore, a dower debt cannot be given any
priority over other debts on any equitable consideration or on the ground that
there is something inherent in its very nature which entitles it to priority.
752 It is now convenient to examine the
decided cases on this subject. In Ameer Ammal v. Sankaranarayanan Chetty (1) a
Bench of the Madras High Court held that a claim for unpaid dower constitutes a
debt payable pari passu with the demands of other creditors and is not a
preferential charge on the estate. In Maina Bibi v. Chaudhri Vakil Ahmad (2) it
was held that where the widow is not in the position of a secured creditor and
is otherwise in possession of the husband's estate with the consent of the
heirs, she is entitled to retain possession of it until her dower debt is satisfied.
Their Lordships observed that it was not necessary to say whether the right of
the widow in possession is a lien in the strict sense of the term. Whatever the
right may be called, it appears to be founded on the power of a widow as a
creditor for her dower to hold the property of her husband of which she has
lawfully, and without force or fraud, obtained possession until her debt is
satisfied. This decision does not place the widow on a higher footing than any
other creditor. As against the heirs all creditors are to be paid in priority
before the estate can be distributed.
In Meer Meher Ally v. Mst. Amanee (3) it was
held that the lien of the widow over the property in her possession is not a
lien in the ordinary legal sense of the term and that a claim for dower is in
the same position as that of any other ordinary creditor and ranks pari passu
with them and like other debts has to be paid before the heirs are entitled to
take anything. In Maina Bibi v. Wasi Ahmad (4) it was held that she has no
right of possession against the creditors, not being a secured creditor
herself. At page 547 the following observations occur :"she cannot set up
any such right of possession against creditors claiming to have the debts owing
to them from the husband satisfied out of the estate. She is not a secured
creditor; her claim for her dower (1) I.L.R. 25 Mad. 658. (3) 11 W.R.
(2) 52 I.A. 145 (4) I.L.R. 41 All 538.
753 debt ranks equally with the claims of
other creditors of her husband," In Hamira Bibi v. Zubaida Bibi (1) it was
observed that dower ranks as a debt and the wife is entitled along with the
other creditors to have it satisfied on the death of the husband out of his estate.
Her right, however, is no greater than that of any other unsecured creditor.
Qua the heirs she has a creditor's lien. In Imtiaz Begum v. Abdul Karim Khan
(,2) the same view was expressed. In para. 295 Mr. Mulla in his book on
Muhammadan Law has adopted the view that dower ranks as a debt and that the
widow is entitled along with other creditors to have it satisfied out of the
estate and that her right is not greater than that of any other creditor. The
learned counsel for the respondent relied on the decision in Kulsum Bibi v.
Shiam Sunder Lal (3), in which it was held that a widow in possession of her
husband's estate is entitled as against the other heirs of her husband and as
against the creditors to retain possession until her dower is satisfied. The
same view had been taken earlier in Mst. Ghafooran v. Ram Chandra Das (4) by a
single Judge. It was said that her possession could not be disturbed till her
dower debt was satisfied. In Mohamed Turabuddin v. Yasin Begum (5) a Bench. of
the Hyderabad High Court held that the claim of a widow for dower was in the
nature of a secured debt. There was no other creditor in that case which arose
between the heirs and the widow.
However, in Wahidunnissa Begum v. Yasin Begum
(6) it was pointed out that the claim of the widow for dower does not create
any interest or charge on the property and that the position of a widow is not
only that of a creditor where her dower remains unpaid but also of an heir.
The result of the authorities is that
excepting the two Allahabad decisions mentioned above and a decision of the
Hyderabad High Court, the consensus (1) A.LR. 1916 P.O. 46. 14) A.I R. 1934
(2) A.I R. 1930 All 881. (5) 17 D.L.R.224.
(3) A.I.R. 1936 All 600. (6) 32 D.L.R. 4'21.
754 of authority is against the proposition
that a widow as an unsecured creditor has any priority over the other unsecured
creditors of her husband. In our opinion, the above mentioned two Allahabad
decisions do not lay down the law correctly on this point and the rule has been
correctly laid down in Ameer Arereal v. Sankaranarayanan Chetty (1).
There is nothing repugnant or inequitable
according to the principles of Muhammadan Law in the estate of a deceased
Muslim being rateably distributed between the unsecured creditors.
For the reasons given above we hold that the
objection raised by the widow had no substance in it and the executing court
should have directed the property to be sold and the sale proceeds distributed
rateably amongst the decreeholders and the widow. In the result we allow this
appeal, set aside the judgments of the two courts below and direct the executing
court to proceed with the execution in accordance with the observations made
herein. in the circumstances we will make no order as to costs of these proceedings.