Case: Kapore Chand Vs. Kadar Unnisa Begum And Others

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 Mohammadan 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. 6. It is now convenient to examine the decided cases on this subject. In -Ameer Ammal v. Sankaranarayanan Chetty, 25 Mad 658 (A), 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 - Mt. Maina Bibi v. Chaudhri Vakil Ahmad, AIR 1925 PC 63 (B), it was held that where the widow is not in the position of a secured creditor and is otherwise in possession of the husbands 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 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 heir all creditors are to be paid in priority before the estate can be distributed. In - Meer Meher Ally v. Mst. Amanee, 11 WR 212 (C), 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 -Mt. Maina Bibi v. Wasi Ahmad AIR 1919 All 128 (D), it was held that she has no right of possession against the creditors, not being a secured creditor herself. At page 133, the following observation occurs : 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 debt ranks equally with the claims of other creditors of her husband. 7. In - Hamira Bibi v. Zubaida Bibi, AIR 1916 PC 46 (E), 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 creditors lien. In -Mt. Imtiaz Begam v. Abdul Karim Khan, AIR 1930 All 881 (F). 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 - Mt. Kulsum Bibi v. Shiam Sunder Lal, AIR 1936 All 600 (G), in which it was held that a widow in possession of her husbands estate is entitled as against the other heirs of her husband and in against the creditors to retain possession until her dower is satisfied. The same view had been taken earlier in Mt. Ghafooran v. Ram Chandra, AIR 1934 All 168 (H), 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, 17 Deccan LR 224 (1), 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, 32 Deccan LR 421 (J), it was pointed out that the claim of the widow nor 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. 8. The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court the consensus 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 lay down the law correctly on this point and the rule has been correctly laid down in - 25 Mad 658 (A). 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. 9.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court the consensus 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 lay down the law correctly on this point and the rule has been correctly laid down in - 25 Mad 658 (A). 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