Nabijan vs Mt. Sahifan and others

Coutts, J.—The plaintiffs in this case are the heirs of one Shaikh Wahid. The defendant No. 2 is his widow. The plaintiffs brought the suit for recovery of possession of their share of the land after ejectment of the defendants first party to whom the widow had sold the land. The suit was dismissed in the Court of first instance but on appeal to the District Judge this decision has been set aside and the suit has been decreed. The reason why the learned District Judge has decreed the suit is that the widow was holding the land in lieu of dower, that as she had no right to transfer the entire property to the defendants first party they have no title, and, consequently, the plaintiffs are entitled to a decree for ejectment.

This decision is undoubtedly wrong. The position is, as has been laid down by their Lordships of the Privy Council in the case of Ali Baksh v. Allahadad Khan (1910) 32 All. 551; 7 A.L.J. 567; 6 I.C. 376, where they observed in a similar case that "the right is one which the widow secures as a creditor for her dower and it is one to continue holding until her debt is satisfied. Such a right is property and prima facie in the absence of any law or contract to the contrary it is property which is both heritable and transferable." The present case is on all fours with the case of Abdulla v. Shams-ul-Haq (1921) 43 All. 127; 18 A.L.J. 969; 58 I.C. 833, in which it was held "where a Muhammadan widow is in possession of property belonging to her deceased husband ''in lieu of dower, it is competent to her to sell it without necessarily selling her right to receive her dower. Such a transfer conveys to the transferees the right to remain in possession during the widow''s lifetime or until the widow''s dower or the proportionate part there'' of corresponding to the property transferred is satisfied." This is clearly the correct view of the law. I would accordingly set aside the decision of the learned District Judge and would decree this appeal with costs. The plaintiff''s suit will stand dismissed.

Das, J.

I agree.