Ramija Bibi and Another vs Sharifa Bibi and Others

Alfred Henry Lionel Leach, C.J.—The question in this appeal is whether the judgment of the Privy Council in AIR 1925 63 (Privy Council)

has overruled the decision of the Full Bench of this Court which decided Beeju Bee alias Zulaika Bee Ammal (dead) and Others Vs. Syed

Moorthuja Sahib and Others, . The answer which we give is in the negative.

In Beeju Bee alias Zulaika Bee Ammal (dead) and Others Vs. Syed Moorthuja Sahib and Others, , this Court held that when a Mahomedan

widow has not been paid her dower she is entitled to retain possession of her husband''s properties, and that the properties cannot be divided

among the heirs until the dower has been satisfied. The Court also held that while a sale by a widow of the estate property to satisfy the dower

debt is not binding on the other heirs of her husband, the vendee has the right to retain possession of the property purchased by him until the dower

debt is satisfied. It is the second part of this judgment which is said to have been overruled by the Privy Council in AIR 1925 63 (Privy Council) .

The first part of the judgment is not in any way in dispute. There is a considerable divergence of opinion in the High Courts of India on the question

whether a widow is entitled to transfer her right to dower and if she does, whether the transferee is entitled to remain in possession until the debt is

satisfied. No purpose will be served by discussing these conflicting authorities. The judgment in Beeju Bee alias Zulaika Bee Ammal (dead) and

Others Vs. Syed Moorthuja Sahib and Others, , states the law so far as this Province is concern-ed, unless, of course, the Privy Council decides

otherwise.

In delivering the judgment of the Judicial Committee in AIR 1925 63 (Privy Council) Lord Atkinson observed:

It was contended, as their Lordships understood, that Mussammat 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.

Mr. Sesha Aiyangar on behalf of the appellants has pointed to the doubt which the Board expressed as to whether a widow can assign her right to

hold possession of her husband''s estate until the debt is paid. The judgment, however, does not go beyond expressing this doubt and it is quite

clear that if the Board had dealt with the question more fully, their observations would have been obiter because the question did not arise there.

An expression of doubt is a different thing from overruling, and the judgment in AIR 1925 63 (Privy Council) can in no sense be said to have

overruled the decision of the Full Bench in Beeju Bee alias Zulaika Bee Ammal (dead) and Others Vs. Syed Moorthuja Sahib and Others, .

In the present case the Subordinate Judge held that the transferee of the widow''s right was entitled to remain in possession until the whole of the

dower is paid. Here he erred. It can be regarded as settled law that the plaintiffs are entitled to partition on payment of their shares of the mahr and

the decree of the Subordinate Court will be varied to this extent. The decree to be drawn up in accordance with this judgment will make it clear

that each co-sharer is entitled to his or her share on payment of his or her share of the mahr.

As the respondents have not appeared there will be no order as to costs.

We desire to express our appreciation of the assistance which counsel have given us and our thanks to Mr. Muthukrishna Aiyar for having acted

as amicus curiae.