Ram Prasad Singh and Others vs Mt. Bibi Khodaijatul Kubra and Others

Manohar Lall, J.—This is an appeal by the plaintiffs who are dissatisfied with the decision of the learned Subordinate Judge, third Court, Patna, dated 20th December 1937, by which he granted them a partial decree against the mortgagor restricted to her share in the mortgaged properties. The principal question for determination in this appeal is whether a Mahomedan widow in possession in lieu of dower debt can grant a simple mortgage of the properties of which she is in possession assuming that upon a construction of the mortgage bonds in suit she had purported to make such a transfer.

The facts are these. One Zahurul Hasan was the son of Abnl Hasan and Mt. Saliman. He died in 1915 leaving a widow, Mt. Rahmatul Bari defendant 1 in the action�to be referred to hereinafter as the mortgagor. He also left two minor children Khudaijatul Kubra, defendant 2 and Saiyid Hasan, defendant 3. He had another daughter Bibi Habiba but she died after his death many years ago. Mt. Saliman, the widow of Abul Hasan, applied to the District Judge of Patna in the year 1916 for being appointed a guardian of the person and property of the minor children of Zahurul Hasan (Ex. A (1) p. 12) and she was so appointed on 25th June h 1916. She apparently failed to furnish security as desired by the District Judge and a petition was filed for her removal from the guardianship. In the year 1920, the mortgagor made an application stating these facts to the District Judge of Patna and prayed that she may be appointed guardian in place of Mt. Saliman (Ex. A p. 14). In these petitions it is stated that the minors are Mahomedans of the Sunni sect that Mt. Khodaijatul Kubra was born in 1324 Hijri and Saiyid Hasan was born in 1332 Hijri. Apparently she was appointed a guardian.

Before the year 1920 however the mortgagor had applied to the Collector in the Land Registration Department that her name a should be mutated in respect of the villages left by her husband, who died on 13th April 1915, in lieu of her dower, but the Deputy Collector recorded her name in respect of seven villages only in spite of objection by Mt. Saliman. In appeal the Collector made a reference to the District Judge for deciding the question summarily u/s 55, Land Registration Act. There was also a dispute as to whether the amount of dower due to the widow was Rs. 1,00,000 and one dinar surkh or a lesser sum as was apparently the case of Mt. Saliman. The judgment of the learned District Judge who disposed of the reference on 4th June 1918 shows that the Collector desired the civil Court to decide what the amount of the dower was and whether any portion of that dower was still due and also to decide whether the mortgagor had obtained possession of the undistributed properties of her deceased husband without force or fraud and whether she was entitled to retain possession of them against the other heirs. The case was heard ex parte as we are informed the parties had come to some terms by that time. The concluding portion of the judgment of the learned District Judge is:

It is ordered and decreed that this case be decided ex parte as Mt. Rahmatul Bari alone appeared. The questions referred to this Court are decided in favour of Mt. Rahmatul Bart. It is proved that dower was one lac of rupees and one dinar surkh. It was deferred dower and nothing was paid and it is all due. It is further proved that Rahmtul Bari is in possession without force or fraud of tauzi No. 10777 gilani.

It will be noticed that Mt. Saliman who was then the guardian of the minor did not put up any opposition. Thereafter, the mortgagor continued in possession of seven villages in lieu of her dower and after she was appointed the guardian of the person and property of her minor children she was in possession of the remaining villages belonging to her husband on behalf of her minor children and also in her own right to the extent to which she was entitled under the Mahomedan law, namely about 2 annas and 5 pies and 4 cowries. In this state of things the mortgagor who was then in need of Rs. 4100 executed a mortgage bond (Ex. 16 (a) p. 19) in favour of the plaintiffs to secure the advance to her of a sum of Rs. 7100 with interest at 10 annas per cent, per mensem to be compounded every six months. No question arises as to the correctness of the consideration for which this bond was executed

In security for this loan, principal and interest and compound interest she mortgaged, hypothecated and rendered liable her proprietary interest together with the rights in the khudkasht lands lying in village Anantpur, full particulars--tauzi numbers adarjama etc., whereof were given at the foot of this bond and e of which she had been and is in possession and occupation as absolute owner in lieu of dower debt.

The property given in mortgage was 1G annas of village Anantpur Peshwar. On 30th July 1924, the mortgagor who had in the meantime taken fresh unsecured advances from the plaintiffs to the extent of Rs. 7000 was in further need of a sum of us. 3000 which was advanced by them to the mortgagor upon her executing another mortgage bond, Ex. 16 p. 24. This mortgage bond is for Rs. 10,000 to carry interest at 8 annas per cent per mensem with six monthly rest. "In security for the repayment of these loans, princi, pal and interest I mortgage and hypothecate and render liable for the debt the village specified below of which I am in possession and occupation in lieu of dower debt without participation and encroachment on the part of any one else and in respect of which my name stands recorded in the Land Registration Department; I mortgage the same and render it liable until the entire amount of the loan, principal, interest and compound interest etc., is fully satisfied. I further make a trustworthy declaration and give it in writing that I or my heirs and representatives shall not until repayment, principal interest and compound interest etc., encumber or otherwise transfer the mortgaged properties by absolute or conditional sale, if I do that it will be deemed null and void in face of this bond.

The properties given in security include 10 annas of village, Anantpur Peshwar which was the subject of the first mortgage bond of 1922 and also include 5 other villages which are set out at p. 26. It was admitted before us that at least in one of these villages namely Ishaqpur Jamsari, tauzi No. 10805 the widow was not in possession in lieu of dower at all. Here again there is no dispute in this Court that the consideration did not pass to the mortgagor in conformity with the recitals in this bond. In the year 1931, Khudaijatul Kubra and Saiyid Hasan, the minor children of the mortgagor, instituted a suit before the Subordinate Judge of Patna for a declaration that % the mortgagor was liable to render accounts of the income of the villages of which she was in possession from 23rd November 1914, which was erroneously given as the date of death of Zahurul Hasan and prayed for a decree for rendition of accounts. In the plaint, Ex. 41 at p. 44 it was alleged that the dower debt of the mortgagor was only Rs. 40,000 and one gold mohur out of which Rs. 16,000 had been paid by her husband before his death and the balance was remitted. It was also asserted that taking illegal advantage of the minority of the plaintiffs the defendant filed a petition on wrong and incorrect allegation for registration of her name in respect of the properties left by Zahurul Hasan on the erroneous ground of arrears of dower debt due to her but as Mt. Saliman did not make any proper pairvi on behalf of the plaintiffs the defendant''s name was registered in respect of the properties in lieu of her dower debt. The minor plaintiffs also asserted that by reason of negligence of their guardian, Mt. Saliman, they were not bound by the result of the ex parte proceedings before the learned District Judge already referred to. They also stated that the income of the properties was very large and even if the dower debt of Rs. 40,000 is assumed to be due it has been satisfied out of the income of the villages. The defendant resisted that suit and filed a written statement, which is Ex. 3 at p. 47, in which she contended that her debt was not Rs. 40,000 but was one lac and one gold mohur of the value of Rs. 32 and that she was entitled to get interest at one per cent, per mensem on rupees one lac and 32 from the date of the death of Zahurul Hasan and, therefore rupees 12,000 per annum was payable to her on account of interest. She also filed an account of the annual income of the properties held by her in lieu of dower debt which showed that from 1322 to 1332 Fs as well as for 1338 Fs. the total remittances received by her amounted to Rs. 68,560 and after paying government re venue and other public demands a sum of Rs. 29,639-13-9 was realized by her which could be set off only against a portion of the interest which was due to her for the non-payment of the dower debt. Strange as it may appear the judgment of the learned Subordinate Judge who passed the preliminary decree in that suit has not been produced in these proceedings. But the plaintiff has admitted in para. 16 of the plaint that as

no proper steps were taken on behalf of defendant 1 and the said suit was eventually disposed of with a finding that the dower was really one lac of rupees and a gold mohur, but without interest, and that a commissioner should therefore be appointed to pre pare an account showing how much dower debt had been satisfied out of the income of the said villages, and that defendants ''2 and 3 should pay the balance, if any, due to defendant 1 within six months from the date of the proper adjustment of account, in which case they might resume possession of the properties and that should they fail to make payment within six months, the suit would stand dismissed. A commissioner has accordingly been appointed already for adjustment of account.

That a commissioner was appointed in that suit appears from the order-sheet, Ex. 34, at p. 58. The commissioner was proceeding with his enquiry which had reached the concluding stages in February 1935. On 12th February 1935, the parties filed a joint petition signed by them and by their pleaders in which they prayed that a final decree may be passed in terms of the petition of compromise. The circumstances in which that petition came to e be filed have a disputed history which will be considered hereinafter. The compromise is said to have been arrived on 10th February 1935, but the plaintiffs assert that it was arrived at on a date after they had filed their suit giving rise to the present appeal.

On 11th February 1935, the plaintiff instituted his suit to enforce the two mortgage bonds of 1922 and 1924 and prayed for a mortgage decree to be passed in his favour with regard to the properties which belonged to defendant 1 in proprietary rights as well as in lieu of dower debt and also the proprietary rights which devolved on her in village Ishaqpur Jamsari by inheritance from her husband and from her daughter Bibi Habiba who died some time before. The plaintiffs were apparently aware that the suit of 1981 was going to be compromised indeed the defendants'' case is that it was the plaintiffs themselves who through their recognised agents used to make pairvi on behalf of the widow in the, suit instituted against her by her children for rendition of accounts. Accordingly the plaintiffs prayed that the proceedings which were then pending before the commissioner relating to accounts in Suit No. 24 of 1931 may be stayed by injunction and that further investigation thereof should be in presence of the plaintiffs. They also prayed that if this was not possible then it must be declared that the accounting is not and cannot be binding upon the plaintiffs and

such amount out of the dower debt of defendant 1 as may be held to be unpaid, may be declared as the "substituted security" for the dues of the bonds sued upon, and the same be awarded to the plaintiff; defendants 2 and 3 be restrained by injunction to make direct payment to defendant 1 and ordered to make deposits in Court. The income of the mortgaged properties in possession of defendant 1 in lieu of dower debt may be kept in Court''s custody by a receiver or such other manner as the Court thinks to be just in order to realise the dues of the bonds sued h upon. If defendants 2 and 3 pay down the dower debt and resume possession of the properties, then in that case the legal share of defendant 1 that may be left in the mortgaged properties may be sold by auction under the decree of this Court and the decree be realised out of the sale proceeds.

The plaintiffs obtained an order for a temporary injunction against the defendants restraining them from proceeding with further progress of Title Suit No. 24 of 1931. The plaintiffs also put in a petition to that Court on 13th February 1935, praying that the compromise arrived at between the parties may not be given effect to as it has been done to defraud them. The matter was disposed of by the learned Subordinate Judge in the present case on 16th May 1935 by an order which is printed as Order No. 37 at p. 140, part I. It is convenient to quote that in full here:

Defendant Mt. Rahmatul Bari was entitled to get a dower of Rs. 1,00,032 from her husband and his properties. She mortgaged her right to get her dower debt from the properties of her husband to the plaintiff for Rs. 17,001 after taking the amount from him and plaintiff has instituted this mortgage suit. Defendant also instituted a suit for recovery of her dower debt against the heirs of her husband. Defendant and the heirs of her husband want to compromise the suit on the allegation that the dower debt has been paid off. Plaintiff in this suit cannot in any way prevent the suit between the defendant and the heirs of her husband from being compromised, but the compromise cannot affect the right of the plaintiff, if any, in the properties of defendant''s husband. Defendant cannot by merely alleging that her dower debt has been paid off wipe away her debts to the plaintiff. The prayer for injunction is, therefore, disallowed. The compromise effected in Suit No. 24 of 1931 will not in any way prejudice the rights of the plaintiff, if any, in realizing the mortgage dues from the properties of defendant''s husband.

After this order was passed, the compromise petition which was filed in Suit No. 24 of 1931 on 12th February 1935, as already stated, was confirmed by another compromise petition which was filed on objection being taken by a pleader of the lady that his vakalatnama should be cancelled and a final decree was passed by the Court on 6th June 1935 in which the original compromise petition dated 10th February 1935 was incorporated (Ex. E page 62). That petition recites that the entire dower debt due to the lady by her husband has been satisfied in full out of the income of the villages of which she was in possession and occupation in lieu of dower debt and not a farthing now remained duo, that the plaintiffs have got all the account of the income of the villages rendered by this defendant and have no claim or dispute or demand against the defendant regarding rendition of account and that regarding the sum of Rs. 500 which was then found due from the defendant to these plaintiffs the plaintiffs had granted her a remission so that all the accounts between the parties were cleared up. Accordingly, a final decree was passed and the plaintiffs were given the right to get into possession and occupation of the villages specified in the plaint. On 24th June 1935 the bailiff who was directed to give possession of the lands submitted a report, Ex. F at p. 64, that he had given possession is the plaintiffs of that suit.

The mortgagor did not appear to support her written statement in which her defence was that the mortgage bonds in suit were based upon fictitious debts, that no consideration had passed to her and that the mortgage bonds were not properly presented for registration, but she stated that she entered into a compromise with defendants 2 and 3 in good faith, that inasmuch as dispute between her and her son and daughter defendants 2 and 3, as the case may be, involved ruin, she of her own accord entered into the compromise and gave up possession and occupation of the properties to defendants 2 and 3 and put them in possession, that she is no more in possession and. occupation of the properties of defendants 2 and 3 as in lieu of dower debt over the heritage left by Zahurul Hasan and all her dower debt was now fully satisfied. She also stated in para. 16 that plaintiff 1 himself and his servants used to make pairvis for her not only in suit No. 24 of 1931 but in all other cases of this defendant.

Defendants 2 and 3 resisted the suit of the plaintiffs chiefly upon the ground that there was neither privity of contract nor privity of estate between the plaintiffs and these defendants. They also pleaded that taking advantage of their minority and helplessness defendant 1 on the plea of arrears of dower debt took possession of the whole inheritance left by their father without their consent in spite of opposition by Bibi Saliman and that she never demanded interest nor was she legally entitled to it and that by the judgment of the Court in Suit No. 24 of 1931 it g was ordered that defendant 1 was not entitled to any interest. They also stated that the average net savings of the income from the properties mentioned in Para, of the plaint was about Rs. 6000 per annum and the entire income was realised and appropriated by defendant 1 so that her debt was fully paid up. They further alleged that defendant l''s possession was based merely on and in lieu of the dower debt and she had no right to transfer the properties or incumber or mortgage the same and even if she did so no mortgage lien could pass to the plaintiffs so far as it concerned the share of these defendants. It was also stated that on the date of the written statement defendant 1 had given up possession and occupation and therefore the lien in lieu of dower no longer exists and cannot be enforced by the plaintiffs.

The learned Subordinate Judge in a careful judgment has come to the conclusion that the mortgage bonds in suit were validly executed, were properly presented for registration, and are for consideration. He has also held that the dower debt of defendant 1 was Rs. 1,00,032, that the suit for accounts instituted against her by defendants 2 and 3 was a bona fide litigation which was settled by a bona fide compromise and as a result thereof nothing remained due to defendant 1 on account of her dower debt and she relinquished possession of the villages of her husband which were in her possession in lieu of dower debt to defendants 2 a ad 3 either on 11th February 1935 or at any rate when possession was formally delivered in June 1935 to defendants 2 and 3. Upon a construction of the mortgage bonds in suits ho held that what was mortgaged was the proprietary right of defendant 1 in the villages as well as the right she possessed over them in liquidation of dower debt which in other words meant the right of possession in lieu oil dower and that the dower debt had not been transferred. He negatived the contention put forward on behalf of the plaintiffs that the lady had become full owner of the properties which she purported to mortgage as no acquiescence or consent of the heirs had been proved and that she also did not acquire any such right by prescription or by adverse possession or by any admission said to have been made on behalf of the guardian of the minors, defendants 2 and 3. Having thus construed the mortgage bonds the learned Subordinate Judge held that in law the right of possession in lieu of dower cannot be given mortgage to the plaintiffs and, therefore, overruled the contention of the plaintiffs that the transfer of possession by defendant 1 to defendants 2 and 3 was hit by the doctrine of is pendens. In the result he granted a mortgage decree to the plaintiffs against the share, of Mt. Rahmatul Bari in the properties covered by the mortgage bonds in suit, but he dismissed their claim with regard to the shares of defendants 2 and 8 in the properties covered by the mortgage bonds in suit. Against this decision the present appeal has been preferred by the plaintiffs. No appeal has been preferred by defendant 1.

As Mr. P.R. Das was unable to attend this Court when the appeal was taken up for hearing on the first day the appellants'' ease was opened by Mr. C.P. Sinha. On the next day we allowed Mr. P.K. Das to continue the argument. As the hearing was not concluded, it was adjourned till 2nd February 1942, but owing to the absence of Mr. Das on that date his junior Mr. Mahabir Prasad continued the argument with great ability, ingenuity and persistence for a number of days.

The findings of the learned Subordinate Judge that the mortgage bonds in suit were genuine and valid and for consideration, that the dower debt had not been transferred, that the lady was not the full owner of the villages by reason of any acquiescence or estoppel or admission or adverse possession have not been challenged before this Court. But it was strenuously argued that defendant 1 as a Mahomedan widow had a right to remain in possession of the villages in lieu of dower debt, that such a right was a right known to the law and she could mortgage the same as she actually did in the present case. It was also contended that the learned Subordinate Judge was wrong in holding that the dower debt had been paid up in full because of his erroneous finding as to the income of the property which was much less than was found by him and also because of his mistaken view that no interest was payable to the lady by reason of her being in possession of the villages. Lastly it was contended that the plaintiffs are not at all bound by the compromise in the suit of 1931 by which the defendants inter se chose to settle their accounts of dower debt to the lady, and that the compromise was mala fide. It was, therefore, argued that the decree which should be passed by this Court should be in this form : that the amount of dower debt due from defendants 2 and 3 to defendant 1 is Rs. 1,00,032, and still unpaid, that the plaintiff is entitled to realise the amounts found due on the mortgage bonds up to date together with costs from defendant 1 and that after proper accounting is made of the amount of dower debt which is still due to the lady 9 from defendants 2 and 3 these defendants may be directed to deposit into Court the same to the credit of defendant 1 and the plaintiffs should be given liberty to withdraw such sums out of that deposit which will be sufficient to satisfy the amount found legally due to the plaintiffs on their mortgage bonds in suit and in default the mortgaged properties including the right of defendant 1 to remain in possession of the villages which she mortgaged to the plaintiffs be sold.

The first question which arises for consideration is what was the property which was given in mortgage by the mortgage bonds in suit. The hypothecation clauses have been quoted in the earlier part of this judgment, but I will quote them again at this place in order to show why I do not agree with the decision of the learned Subordinate Judge that what was mortgaged was the right she possessed over these villages in liquidation of her dower debt besides her proprietary right. In the mortgage bond of 1922 the relevant clause is:

In security for this loan.... I mortgage, hypothecate and render liable my proprietary interest together with the rights in khudkasht lands lying in village Anantpur...of which I have been and am in possession and occupation as absolute owner in lieu of dower debt.

I cannot construe this to mean that she was mortgaging her right of possession. What she evidently intended to make clear was that she was transferring her proprietary right in these villages whatever that may be and she was stating as a fact that she was in possession and occupation also of these villages as absolute owner in lieu of dower debt. There was no intention to mortgage the right of possession. The hypothecation clause in the deed of 1924 is

"I mortgage and hypothecate and render liable for the debt the village specified below of which I am in possession and occupation in lieu of dower debt without participation and encroachment on the part of any one else and in respect of which my name stands recorded in the Land Registration Department.

Here again I do act see any words which even remotely suggest that she intended to give in mortgage her right of possession of the six villages mentioned in the schedule. I have already statet I that it was rightly conceded that the dower debt has never been transferred.

But assuming I am wrong in the construction which I have placed upon the hypothecation clauses in the mortgage bonds in suit can this right of possession be mortgaged in law? Unfortunately, upon this question, there have been a number of contradictory decisions both in this Court and in the other Courts notably in the Allahabad High Court, but in my opinion the mutter has been set at rest by a recent decision of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) . Their Lordships have pointed out in that case that the case of a Maliomedan widow in lieu of dower distinguishes it from the case of a mortgage usufructuary or otherwise, because.

in the case of a mortgage the mortgagee takes and retains possession, under an agreement or arrangement made between him and the mortgagor. Any rights the mortgagee may get are conferred upon him by the mortgagor. In the present case...neither the possession of the property nor the right to retain that possession when acquired is conferred upon the widow by the agreement or the bounty of her deceased husband. The possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower debt is paid is conferred upon her by the Mahomedan law. The husband, when he grants dower to his wife cannot, according to Sir Montagu Smith, by any original hypothecation of his property, secure to her the payment of it. But the original and intentional hypothecation of the mortgaged property to secure the repayment of the mortgage debt is the very essence of every mortgage, usufructuary or other.... The widow who holds possession of her husband''s property until she has been paid her dower has no estate or interest in the property as has a mortgagee under an ordinary mortgage. Mr. De Gruyther called the attention of the Board to Section 58, and following sections of the Transfer of Property Act, e and urged their Lordships to apply, by analogy, the principles embodied in those sections, at least in the case of usufructuary mortgages, to this case; but there are essential differences, between the position of a Mahomedan widow entitled to dower, who, like the widow in the present case, enters upon her deceased husband''s property lawfully and peaceably, and only claims to retain that possession till, her, dower debt is satisfied, and the position and right of a mortgagee usufructuary or other to whom an owner pledges his property to secure the repayment of a debt. There is no real or true analogy between the two.

I am quoting from the judgment delivered by Lord Atkinson at pp. 150 and 151. I also quote another important passage at p. 159.

It was contended, as their Lordships understood, that Mt. 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, it 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 needs. 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 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 has done, she hag undoubtedly lost her right to hold the possession of them.

I take the last sentence in the quotation just given as decisive of the question in the present case. The plaintiffs, if their argument is accepted as correct, would get a decree which would entitle them to sell the right of possession of the lady in the villages and having purchased that right they or the auction-purchasers would force the widow to give up possession of these lands to them. But this is the very situation which is stated by Lord Atkinson in the quotation last referred to which removes from the lady her h right to hold possession of the villages in lieu of dower debt; in other words, the very instant the plaintiffs enter into possession of the villages the rightful owners, namely, defendants 2 and 3 would in law be entitled to treat the plaintiffs as trespassers. Again in the quotation from the judgment at p. 151 it is clearly stated that the widow who holds possession of her husband''s property until she is paid her dower debt has no estate or interest in the property. This means that the estate or interest in that property belongs all the time to the real owners, namely, defendants 2 and 3 in this case. She has a mere right of possession that remains with her so long as she is in possession and by giving up possession she loses her right to hold possession of them. For these reasons, I am of opinion that the plaintiffs have neither obtained a transfer of the dower debt (this was admitted) nor have they in law obtained a mortgage of the right of possession of the villages which was in the widow so long as the dower debt was not paid off and so long as she does not give up possession. But this is not all. The lady has actually given up possession to defendants 2 and 3; she has, therefore, lost her right to possession. The result is that the plaintiffs'' claim must be negatived although for reasons different from that given by the learned Subordinate Judge upon the question of law even assuming that the dower debt has not been paid off.

But it is right that I should deal with some of the eases which were cited on behalf of the appellants. Ameeoronaissa v. Moorasoonissa (1854) 6 M.I.A. 211 has been relied upon in order to support the argument that the estate of the husband must be deemed to be hypothecated by the Mahomedan widow for her dower. Mt. Bebee Bachun v. Sheikh Hamid Hossain (1970-72) 14 M.I.A. 377. In that ease the question was whether having been put into possession, n Mahomedan widow is entitled to retain it until her dower debt was paid to the exclusion of the other heirs of the deceased. These two eases and the next ease cited by the appellant, Ahmed Hussain v. Mt. Khadija (1968) 10 W.R. 369 have been considered by their Lordships of the Judicial Committee in the judgment in (1925) 48 MLJ 667 (Privy Council) and so need not be discussed any more.

Abdul Rahman v. Wali Mohammad AIR 1923 Pat. 72. In that case a Mahomedan widow was in possession in lieu of dower of the estate left by her husband which was small, the amount of unpaid dower debt being Rs. 4000. She transferred to the appellant the whole of the interest in that estate in which she was entitled by inheritance to four annas share which she could undoubtedly transfer. After construing the document Sir Dawson Miller C.J., a member of the Division Bench, held that as there was not a word, from first to last, relating to any transfer of her dower debt, he was unable to construe the document as purporting to transfer the dower debt and then observed at page 79:

Nor, in my opinion, was it possible for her to transfer the lien on the property so as to be binding after her life-time without transferring also the dower debt. The lien on the property which gives the widow the right to possession until the debt has been discharged is not, in my opinion, an interest in property which can be severed from the right to dower and transferred as a separate interest. It is a right to the possession of the property by the person entitled to be paid the dower as long as the debt is not discharged either by the income from the property or by payment by the heirs or others interested in discharging the debt. It certainly gives the widow the right to possession and it may be assumed, I think, that as long as she does not transfer her dower debt and that debt remains undischarged, she may transfer for her life-time possession of the property the proceeds of which belong to her until the debt is paid off. The position of the transferee in such a case, might be regarded as constructively her possession, and, in this sense, it would not be severed from the dower debt. Just as she could dispose of the proceeds in any way she chose during her life-time and until the debt was discharged, so also I apprehend she could transfer possession of the property in the same circumstances, the transferee being entitled to the usufruct. But if she should transfer the dower debt or if she should die and her estate devolve upon her heirs or assignees the transferee''s right to possession would be extinguished as the debt and the security cannot be severed thereby converting the security into a separate interest in the property. It would appear therefore that even if the instrument in question purported to transfer to the appellant possession of the property forming the security for the debt this would not enure to the benefit of the transferee after the widow''s death when the dower debt passed to her heirs. The possession of the donee, in such a case, must, I think, be regarded as constructive possession of the widow. It is not an int (1925) 48 MLJ 667 (Privy Council) erest in property which is capable of absolute transfer.

Mullick J. who delivered a concurring judgment relied upon the decision of the Allahabad High Court in Musammat Maina Bibi and Others Vs. Chaudhari Wasi Ahmad and Others, which was affirmed by the Privy Council in (1925) 48 MLJ 667 (Privy Council) and at p. 83 made these observations with regard to a Mahomedan widow''s right to possession in lieu of dower:

The right of a Mahomedan widow to retain the possession of her husband''s estate in lieu of dower has been sometimes described as a lien and sometimes as a charge. Strictly speaking, it is neither, but it is agreed that she has a right to transfer the h debt coupled with the security and that the transfer will be binding upon her co-heirs till they discharge the debt. She may also during her life-time transfer the right of possession apart from the debt, but that is a matter between herself and her transferee and the transfer will not be binding upon the co-heirs after her death. That is the meaning of the proposition that a Mahomedan widow in possession of her husband''s estate in lieu of unsatisfied dower cannot alienate the estate. This view of the law is in accord with the decision of the Full Bench in Beeju Bee v. Moorthiya Saheb AIR 1920 Mad. 666.

Two days later another Division Bench of this Court, Coutts and Das J J. decided in Shaikh Nabijan v. Mt. Sahifan AIR 1923 Pat. 153 that where a Mahomedan 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 he dower. Such a transfer conveys to the transferee the right to remain in possession during the widow''s lifetime or until her dower or the proportionate part thereof corresponding to the property transferred is satisfied. Coutts J. who delivered the judgment erred in thinking that the case in Ali Baksh v. Allahdad Khan (1910) 32 All. 551 was decided by the Privy Council. As a matter of fact, it was decided by a Division Bench of the Allahabad High Court. He expressly followed the decision in Abdulla v. Shamsul Haq AIR 1921 All. 262. Three days later the same Division Bench decided the case reported in Mt. Bibi Makbulunnissa v. Mt. Bibi Umatunnissa AIR 1923 Pat. 33. In that ease Das J. who delivered the judgment of the Bench held that

where a Mahomedan widow in possession of her. husband''s property in lieu of dower, transfers the security, either with or without the dower debt the transferee is entitled to retain possession of the property until the dower debt is paid. But when the transfer is without the privity of the persons bound to discharge the dower debt the transferee takes the security subject to the state of account between the widow and the persons bound to discharge the debt at the date of the transfer, and any payment made by such persons after, but without notice of the transfer, must, in the absence of collusion, be allowed to such persons as against the transferee. He also held that a transfer of the property by a Mahomedan widow in possession in lieu of dower, as distinct from an assignment of the security, is ineffectual and confers no title on the vendee. But in such a case the vendee, if put into possession, is entitled to retain possession until the dower debt is satisfied either by payment to the widow or to her heirs or until the debt is extinguished by reason of the fact that the heirs of the husband and of the widow are the same persons.

In 1927 another Division Bench of this Court, Das and. Kulwant Sahay JJ. had to consider the same question in Mt. Sogia v. Mt. Kitaban AIR 1928 Pat. 224. In this case Kulwant Sahay J. who delivered the judgment of the Bench, held that a widow in possession o� her husband''s property in lieu of dower debt can transfer the security apart from the dower debt, and the transferee acquires a valid title so long as the debt is not satisfied. Ho expressly dissented from the decision in Abdul Rashman v. Wali Mohammad AIR 1923 Pat. 72 and concurred with the decision of the other two cases, namely, Mt. Bibi Makbulunnissa v. Mt. Bibi Umatunnissa AIR 1923 Pat. 33 and Shaikh Nabijan v. Mt. Sahifan AIR 1923 Pat. 153 which I have just ree ferred to. Says the learned Judge, after referring to the finding of the learned District Judge in that case that what was transferred under the deed of gift by the Mahomedan widow was the security and not the dower debt itself:

There seems to be no reason in law or in equity why such a transfer should not be held to be a valid transfer. The widow is in possession of the property which is clearly transferable in law, and the transferee of such a property from the widow would acquire a valid title so long as the debt is not satisfied. The interest, which the widow had, to remain in possession of the property, would pass to the transferee, and there seems no reason why such a transfer should be held to be invalid apart from the debt f itself.

In my view, these decisions do no longer correctly interpret the Mahomedan law on the subject after the pronouncement of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) While considering that case I have shown that the true position is that Mahomedan widow has no estate or interest in the property and her right of possession disappears as soon as she gives up possession.

It is unnecessary for me to decide whether Mahomedan widow can transfer the dower debt because in the mortgage bonds in suit the dower debt has not been transferred although g I do not see why a dower debt as such cannot be transferred if appropriate documents are executed as provided by Section 130 onwards of the Transfer of Property Act. But as their Lordships have thrown a doubt in (1925) 48 MLJ 667 (Privy Council) that the widow could not transfer her dower, debt, the question will come up for decision on a more appropriate occasion. It may be that what their Lordships intended to hold was that the widow could not transfer her dower debt after she had come into possession in lieu of her dower debt.

Cases from the Allahabad High Court which were cited by the learned Counsel for the appellants are Azizullah Khan v. Ahmad Khan (1985) 7 All. 353. Shaikh Nabijan v. Mt. Sahifan AIR 1923 Pat. 153 and Abdulla v. Shamsul Haq AIR 1921 All. 262. These cases have been considered by the Division Benches of this Court in the cases already dealt with. The ease in Baksh v. Allahdad Khan (1910) 32 All. 551 was also cited by the counsel on behalf of the appellant before their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) . In my opinion these cases are of no assistance to the appellants and their appeal must fail.

But it is desirable that I should give findings on the other questions of fact which have been in controversy between the parties, namely, as to whether the dower debt was satisfied in fact upon a calculation of the true income of the villages which were in possession of the lady in lieu of dower or whether it was satisfied in law by reason of the compromise which was arrived at between the parties which disposed of the litigation started by defendants 2 and 3 against defendant 1 in 1931.

As already stated, the learned Subordinate Judge has held that the dower debt originally payable to defendant 1 was Rs. 1,00,032. This finding is in favour of the appellants and has not been challenged on behalf of the respondents. In order to decide whether the dower debt has been paid oil: or that the compromise in the suit of 1931 was bona fide, it is necessary to come to a conclusion as to what was the income of the villages which defendant 1 took possession of lawfully and peaceably though not with the consent of the minor heirs of her husband after his death.

The plaintiffs'' case in para. 4 of the plaint is that the income of these villages was approximately Rs. 4000 per annum and that this income was not even sufficient to satisfy the interest on the dower debt. The ease of the heir defendants on the other hand was that the average net saving of the income from these properties was in the neighbourhood of Rs. 6000 per annum and further that no interest was demanded by defendant 1 on account of her dower debt, nor was she legally entitled to the same. They also relied upon the preliminary judgment of the Court in suit No. 24 of 1931 to show that defendant 1 was not entitled to get any interest. The learned Subordinate Judge has come to the conclusion that no interest was payable to defendant 1 and that this point has been conclusively decided between the real parties in the suit of 1931. He also held that the net annual income from the villages was approximately Rs. 4500 per annum. This finding has also been challenged by Mr. Mahabir Prasad on behalf of the appellants, but he confined his argument to the area and rental of some khudkast lands the incomes whereof were said to have been appropriated by the lady while she was in possession for 20 years. He argued that the income from the khudkast lands should be calculated on the rental basis and not on the basis of chowraha rent of 5 maunds of rice and 30 seers of khesari per bigha as has been done by the learned Subordinate Judge.

But the plaintiffs'' own witness stated that there are khudkast lands in Anantpur Peshwar and Gilani although some of the witnesses did not like to say whether there was any khudkast land in any other villages nor could they give any income from these lands. According to the khatian the khudkast area in Gilani is 50 bighas only and the khudkast area in Anantpur Peshwar is only 21 bighas and 3 kathas. Saudagar Mahton one of the witnesses for the plaintiff''s admitted that the holding of Lekha Beldar was abandoned by him with an area of over 7 bighas and the defendant 1 came into possession thereof. This statement is supported by the khatian which was published in the year 1910 (Ex. B (2)). Accordingly the case of the defendants is more acceptable that the area of khudkast land in Anantpur Peshwar is 30 bighas and not 21 bighas and. 3 kathas. The learned Subordinate Judge has come to that conclusion and I think he is right.

With regard to the lands of Rasulpur Peshwar, the defendants'' case is that 66 bighas of land were recorded in the khatian in the names of Shah Abdul Karim and Shah Sirajul Haq although the lands were raiyati lands belonging to Zahurul Hasan and out of these defendant 1 sold 16 bighas and the remaining 50 bighas constituted her kast or khudkast lands in the village. This is supported by the evidence of Harihar Mahton,. D.W. 11 Witness Dahu Mahton who was examined on behalf of the plaintiff and who was also examined in the suit of 1931 stated as P.W. 15 that Zahurul Hasan had 50 bighas of khudkast lands in Anantpur Peshwar and that these khudkast lands used to be settled with tenants on a lump rental of 5 maunds of rice and 6 paseries of khesari per bigha. This witness was the patwari of defendant 1 and of her husband from 1911 to 1917. The learned Subordinate Judge states that no suggestion was ever made that this Dahu Mahton was colluding with the defendants. He therefore saw no reason to disbelieve him specially as another witness of the plaintiffs, Saudagar Mahto, p.w. 17, made a similar statement. It must therefore be held that defendant 1 was in possession of over 50 bighas of kast or h raiyati lands in village Rasulpur Peshwar and that these were settled on an annual produce rental of 5 maunds of rice and 30 seers of khesrai per bigha. Having read the entire evidence in the light of the argument advanced, I am unable to come to any other conclusion than that arrived at by the learned Subordinate Judge that the income and the area of bakast and kast lands as claimed by the defendants to appertain to the three villages in question are substantially correct. No argument was advanced before us as to the nakdi income from the villages. For these reasons I agree that the income from the villages in question has been correctly appraised by the learned Subordinate Judge to be Rs. 4500 per annum. The lady was admittedly in possession for 20 years and therefore, she must be held to have appropriated at least Rs. 90,000 in lieu of her dower debt. The question whether interest should be calculated on the dower debt in arriving at a conclusion as to whether the dower debt was satisfied out of the usufruct by possession of the lady for 20 years admits of a very ready solution. The leading case upon the topic is the judgment of Lord Parker of Waddington in Hamira Bibi v. Zubaida Bibi AIR 1916 P.C. 46 where he observed that in the absence of any agreement the widow was entitled to some reasonable compensation not only for the labour and responsibility imposed on her for the proper preservation and management of the estate, but also for forbearing to insist on her strict legal right to exact payment of her dower on the death of her husband; such compensation for forbearance to enforce a money payment is best calculated on the basis of an equitable rate of interest which is usually considered to be the court rate of 6 per cent, per annum. It was, therefore, argued on behalf of the appellants that the learned Subordinate Judge was in error in not giving credit to the widow for the interest by way of compensation which was due to her at the rate of Rs. 0000 per annum. He argued that if credit was given to this extent it will follow that the whole of the dower debt of Rs. 1,00,032 was still unpaid because as I have shown above the income from the villages in her possession cannot be estimated to be more than Rs. 4500 net.

But in my opinion in view of the decision in the suit of 1931 this contention is no longer open to the plaintiffs-appellants. It will be noticed that in that case there were serious differences between the parties as to whether the dower debt was Rs. 40,000 and had been paid off in part during the life time of the husband and the balance was remitted or whether the fowler debt was Rs. 1,00,032. That this was a serious dispute appears also clear from the judgment of Mr. Boss, as he then was, in the proceeding u/s 55, Land Registration Act. There also the claim of defendant 1 to this amount of dower was seriously in dispute. It appears to be the admitted case of both sides and in any case it is clear from the manner in which the proceedings were conducted before the civil Court in the suit of 1931 that the parties were fighting tooth and nail right up to the date of the compromise: see Ex. 7 (part. III, p. 53). This order sheet shows how the parties were fighting at the stage of accounting from 3rd September 1934 till 11th February 1935. It was in these circumstances that the learned Subordinate Judge came to the conclusion by a preliminary decree that no interest was payable to defendant 1 on account of her dower debt. The lady was satisfied with this decision and never preferred an appeal to the superior Court. As I have shown above the plaintiff has not taken a transfer of the dower debt and, therefore, in my opinion, he is bound by the decision which was arrived at between the parties in the suit of 1931 that no interest was payable to the lady upon her dower debt. The question as to whether interest was payable or not was a question which only arose between the parties to that litigation, that is to say, between the widow and the heirs of her deceased husband.

I now proceed to consider whether the compromise which was arrived at in that suit of 1931, was a bona fide compromise. If I am correct in holding that no interest was payable to the lady upon her dower debt, as I have held above, it follows that the compromise, by which the lady was held to have overpaid herself to the extent of Rs. 500, was a bona fide compromise. In the present case g the question is not as to what was the exact amount of the usufruct from the villages in possession of the lady but whether having regard to the income from the villages in question the compromise was a bona fide one or not. As I have shown above the lady not being entitled to interest must be held to have appropriated at least Rs. 90,000 in lieu of the dower debt. This leaves at the utmost a sum of Rs. 10,032 only. I find no reason why the action of the parties in compromising the matter at the stage at which it had reached should be held to be mala fide when they might have thought, as is the evidence in the % case, as a result of an examination of the accounts that the claims of the parties, who were near relations, should be mutually adjusted upon terms which appear to me highly reasonable. The parties by the compromise took the judgment in their own hands and did not leave it to the uncertain fate of a prolonged litigation. I am all the more disposed to take this view because the parties at variance were the mother on the one hand and her own children on the other. Indeed it was open to the lady to relinquish her entire dower debt provided that what she did was upon a clear understanding of her rights.

Was there then a clear understanding by the lady that she was giving up possession of the villages after her dower debt had been satisfied or after she had relinquished whatever claim she had on account of the dower debt against the hoers of her husband? The record of the learned Subordinate Judge in that case and specially the order sheet of that suit which is printed gives abundant materials that every precaution was taken by the lawyers of the parties concerned to see that the compromise was the physical as well as the mental act of the lady.

The compromise petition bears date 10th February 1935 but was actually filed on 12th February 1935. On the next day the plaintiffs '' in the present suit filed a petition praying that the compromise between the parties should not be given effect to. On the next day Maulvi Parzan Ahmed, pleader of the lady, filed a petition praying that the vakalat-nama which he had accepted on her behalf should be cancelled. Accordingly another petition was drafted, on 17th February 1935 which states that the parties had filed a petition of compromise on 12th February 1935 when they came to know that Maulvi Parzan Ahmad had applied for the cancellation of his vakalatnama and that in order to get over the legal objections they were filing this fresh petition which was fully explained to the lady. The Court on being satisfied passed an order that the suit should be decreed in terms of the compromise petition which should form part of the decree.

But the matter does not rest here. The brother of the lady was a witness in the ease. He is Saghirul Hassan, D.W. 12. The learned Subordinate Judge has given a quotation from his evidence at p. 118 of the judgment. I have read that evidence and I am satisfied that he has given a substantially correct account of what happened in connexion with the filing d of the petition of compromise specially as it is corroborated by the order-sheet in the suit of 1931. This shows that every precaution was taken that the lady understood and agreed to the terms of the compromise. Mr. Zahirul Hassan, Barrister-at-law, identified her. A fresh vakalatnama was given to Maulavi Parzan Ahmad who was taken to the house where the lady was staying on being brought from Bihar. This pleader enquired from the lady and got her identified by two witnesses.

I am, therefore, of the opinion that the compromise was a bona fine one, that the lady fully understood the terms thereof and willingly agreed to its terms. The terms as I have shown already were quite reasonable in the circumstances having regard to the relation ship between the parties. In the result I & would dismiss the appeal with costs.

Yarma J

I agree.