Case: Kapore Chand Vs. Kadar Unnisa Begum And Others

1. 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. Kanderunnissa. In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached. In 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 respondents 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 widows 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 Art. 374(4) of the ConstitutionIt 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 widows 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.

Reasoning: 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