dedol-hf/india-case-legal-rag huggingface dataset:
articles  132 to 134 reference is made to appeals  from  the
High Courts, under this article, an appeal will lie from any
court or tribunal in the territory of India.
    On  a careful examination of article 136 along with  the
preceding article, it seems clear that the wide  discretion-
ary  power with which this Court is invested under it is  to
be  exercised sparingly and in exceptional cases on13,,  and
as far as possible a more or less uniform standard should be
adopted  in  granting  special leave in the  wide  range  of
matters which can come up before it under this article.   By
virtue of this article, we can grant special leave in  civil
cases,   in  criminal cases, in income-tax cases,  in  cases
which   come up before different kinds of tribunals  and  in
a  variety of other cases.  The only uniform standard  which
in our opinion can be laid down in the circumstances is that
Court  should  grant special leave to appeal only  in  those
cases  where special circumstances are shown to  exist.  The
Privy  Council  have  tried to lay down from  time  to  time
certain  principles for granting special leave  in  criminal
cases, which were reviewed by the Federal Court in  Kapildeo
v. The King.   It is sufficient for our purpose to say  that
though we are not bound to follow them too rigidly since the
reasons, constitutional and administrative, which  sometimes
weighed with the Privy Council, need not weigh with us,  yet
some  of those principles are useful as furnishing  in  many
cases
459
a  sound basis for invoking the discretion of this Court  in
granting special leave.  Generally speaking, this Court will
not grant special leave, unless it is shown that exceptional
and special circumstances exist, that substantial and  grave
injustice  has  been  done and that  the  case  in  question
presents features of sufficient gravity to warrant a  review
of  the decision appealed against.  Since the  present  case
does  not in our opinion fulfil any of these conditions,  we
cannot  interfere with the decision of the High  Court,  and
the appeal must be dismissed.
Appeal dismissed.
Agent for the appellant:  S.P. Varma.
Agent for the respondent:  P.A. Mehta.
PETITIONER:
[IN THE SUPREME COURT OF INDIA (HYDERABAD).]KAPORE CHAND
        Vs.
RESPONDENT:
KADAR UNNISA BEGUM AND OTHERS
DATE OF JUDGMENT:
12/10/1950
BENCH:
SIDDIQUI KHALILUZZAMAN J.
BENCH:
SIDDIQUI KHALILUZZAMAN J.
MAHAJAN, MEHR CHAND
NAIK R.S.
CITATION:
 1953 AIR  413            1950 SCR  747
ACT:
    Muhammadan Law--Dower--Widow in possession of  husband's
estate  in lieu of dower--Whether entitled to priority  OVer
creditors-Nature of widow's lien for dower.
HEADNOTE:
   A Muhammadan widow in possession of her husband's estate
in lieu of her claim for dower with the consent of the other
heirs  or otherwise is not entitled to priority  as  against
his other unsecured creditors.  There is nothing inherent in
the very nature of dower which entitles it to priority.
748
Ameer  Ammal v. Sankaranarayana Chetty (I.L.R. 25 Mad  658),
Meet Meher Ally v. Mst. Areanee (11 W.R. 212), Maina    Bibi
v. Wasi Ahmad (I.L.R  41 All. 558), Hamira Bibi v.  Zubaida-
Bibi  (A.I.R.  1916 P.C.  46), Imtiaz Begum v.  Abdul  Karim
Khan  (A.I.R. 1930 All. 881) referred
   Kulsum  Bibi v. Shiam Sunder Lal (A.I.R. 1936 All.  600),
Mst.  Ghafooran v. Ram Chandra  Das (A.I.R. 1934 All.  168),
Mohamed  Turabuddin  v. Yasin Beeum  (17  D.L.R.  224)disap-
proved.
  Maina  Bibi,  v. Chaudhri Vakil Abroad (52 I.A.  145)  ex-
plained.
JUDGMENT:
  APPEAL  from  a judgment of the High Court  of   Hyderabad
under  article 374 (4) of the Constitution  of India:  Civil
Appeal No. 189 of 1950.
  Abdul Wahid Owasi, for the appellant.
  Ahmed Saeed Khan, for respondent No. 1.
      1950.  October  12.   The judgment of  the  Court  was
delivered by
     J.  KHALILUZZAMAN J.--This appeal arises out of  execu-
tion  proceedings.  The appellant, Kapurchand, had  a  money
decree,  amongst  others, against one Mir  Hamid  Ali  Khan,
husband of the respondent Mst. Kaderunnissa. In execution of
the  decree the house in dispute belonging to  the  deceased
judgment-debtor was attached. To 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  respondent's
claim,  the decree-holder being entitled to the surplus,  if
any, out of the sale proceeds.  There was not much possibil-
ity  of the house fetching more in the execution  sale  than
the amount due on account of dower.  The court took the view
that the widow's claim for dower had priority over the debts
due to other unsecured creditors and her position was analo-
gous 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  Com-
mittee  of the State and it is now before us  under  article
374 (4) of the Constitution.
749
The sole point for determination in the appeal is wheth-
er a widow in possession of her husband's estate     in lieu
of  her claim for dower with the consent of the other  heirs
or  otherwise is entitled to priority as against  his  other
unsecured  creditors.  It 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 widow's 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 injunc-
tion  relating to the payment of dower on the one  hand  and
the  payment of the other debts on the other.   The  learned
advocate for the appellant contends that a widow's claim for
outstanding  dower  even when she is in  possession  of  her
husband's  estate in lieu of her claim with the  consent  of
other heirs of the deceased stands on no better footing than
that of unsecured creditors, though in their absence she  is
entitled to be paid in full before the estate is distributed
among the heirs.  He drew our attention to certain  passages
from  the holy Quran and from writings of other  jurists  on
this  subject.   The  learned counsel  for  the  respondent,
however,  argued  that a widow has a lien on  her  husband's
estate  for her outstanding dower and when she has   entered
into
96
750
possession  of  his  house after his  death  she  cannot  be
dispossessed till her claim is satisfied either by the heirs
or  by the unsecured  creditors.   He  placed reliance on  a
decision of the Hyderabad High Court and also of some  other
High Courts in India.
A  careful  examination of the various  authorities  on  the
subject  shows that the proposition of law on  this  subject
has been correctly  enunciated  in  Tyabji's Muhammadan  Law
(1940 Edn.) in these terms: (1) A widow by her lien does not
have  any priority over other creditors; (2) Mehr as a  debt
has  priority  over other heirs' claim to  have  the  estate
distributed among themselves.  These two considerations  are
not  affected by the fact of her being in or out of  posses-
sion of the estate.  It seems clear that unless the  husband
by  his  own act has placed the widow in a  better  position
than  his  other creditors, her claim for dower  is  in  the
nature  of an unsecured debt and she has no priority of  any
kind  against the other unsecured creditors of her  husband.
The Quranic text in Surai-Nissa, Ruku 4, enjoins the payment
of dower in preference to bequests and inheritance but it is
silent on the question of priority of dower debt in relation
to  other creditors. In Mubsoot Sarkhasi, Vol. 29,  Kitabul-
faiaiz,  page 137, it is pointed out that payment  of  debts
has priority over bequests and wills.  In the administration
of  the  estate of a deceased Muslim the rule laid  down  by
early text writers and Fatwas,  such  as   Fatwa-e-Alamgiri,
is  that in the first instance the funeral expenses  of  the
deceased  should be paid out of the estate and  that  having
been done, the estate should be divided between the legatees
and the heirs  after payment of the debts due from him.   No
priority has been indicated in respect of a dower debt of  a
widow  over other unsecured creditors even if she has  taken
possession of her husband's estate after his death.
   It  was  said that the nature of the  widow's  claim  for
dower  is  such that it amounts to a lien on  the  husband's
estate.  The claim for lien is based on the assumption  that
the dower debt is consideration for the marriage and is  not
merely a voluntary debt incurred due to the
751
respect  to the wife.  According to  Hamilton's  Hedaya(1870
Edn.,  page 44), the leading text book on Hanafi law,  if  a
person  specifies  a dower of ten or more diams  and  should
afterwards consummate his marriage, or be removed by  death,
his  wife  in either case can claim the whole of  the  dower
specified,  because  by  consummation her  claim  for  dower
becomes absolute.  The. dower debt becomes her property  and
it  devolves  on  her heirs and has to be paid  out  of  the
estate of the husband.  It has been described as a debt upon
the  husband to be paid out of his estate.  The dower  of  a
Muslim woman is a settlement in her favour made prior to the
marriage  contract  and is similar to  the  donatio  propier
nuptias  of the Romans but is of such an  obligatory  nature
that  if  it is not mentioned before or at the time  of  the
marriage, it is presumed to exist to the extent of a  proper
dower amount.  Among the Hebrews the dower settled on a wife
was for her use after the termination of marriage and  among
the  Jews marriages without similar consideration  were  in-
valid. As pointed out by Mr. Ameer Ali in his book on Muham-
madan  Law, the custom originated in ancient times with  the
payments  made  by husbands to their wives as  a  means  for
their  support  and as a protection  against  the  arbitrary
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  inheri-
tance,  but on  no principle  of Muhammadan Law it can  have
priority  over other contractual debts. In our view,  there-
fore,  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  enti-
tles it to priority.
752
It  is now convenient to examine the decided cases on   this
subject.   In Ameer  Ammal v. Sankaranarayanan Chetty (1)  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 Maina Bibi v. Chaudhri Vakil Ahmad (2)  it  was
held  that where the widow is not in the position of  a  se-
cured  creditor and is otherwise in possession of  the  hus-
band's estate with the consent of the heirs, she is entitled
to  retain possession of it until her dower debt  is  satis-
fied.  Their Lordships observed that it was not 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 heirs all creditors  are
to be paid in priority before the estate can be distributed.
In  Meer Meher Ally v. Mst. Amanee (3) 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 Maina Bibi v. Wasi Ahmad (4) it was  held
that  she has no right of possession against the  creditors,
not  being a secured creditor herself.   At  page  547   the
following observations occur :-
"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
(1) I.L.R. 25 Mad. 658.          (3) 11 W.R. 212.A11.538.
(2) 52 I.A. 145        (4) I.L.R. 41 All 538.
753
debt ranks equally with the claims of other creditors of her
husband,"
    In Hamira Bibi v. Zubaida Bibi (1) 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 creditor's lien.  In Imtiaz Begum v.  Abdul
Karim  Khan (,2) 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 Kulsum Bibi v. Shiam  Sunder  Lal
(3), in which it was held that a widow in possession of  her
husband's estate  is entitled as against the other heirs  of
her  husband and as against the creditors to retain  posses-
sion until her dower is satisfied.   The same view had  been
taken earlier in Mst. Ghafooran v. Ram Chandra Das (4) 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 (5) 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 (6)  it  was
pointed  out that the claim of the widow for 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.
    The result of the authorities is that excepting the  two
Allahabad decisions mentioned above  and  a decision of  the
Hyderabad High Court, the consensus
 (1) A.LR. 1916 P.O. 46.          14) A.I R. 1934 All. 168.
 (2) A.I R. 1930 All 881.         (5) 17 D.L.R.224.
 (3) A.I.R. 1936 All 600.         (6) 32 D.L.R. 4'21.
754
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  men-
tioned  two  Allahabad  decisions do not lay  down  the  law
correctly on this point and the rule has been correctly laid
down  in   Ameer Arereal v.  Sankaranarayanan   Chetty  (1).
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.
    For the reasons given above we hold  that the  objection
raised by the widow had no substance in it and the executing
court  should have directed the property to be sold and  the
sale proceeds distributed rateably amongst the decreeholders
and the widow. In the result we allow this appeal, set aside
the judgments of the two courts below and direct the execut-
ing  court to proceed with the execution in accordance  with
the observations made herein.  in the circumstances we  will
make no order as to costs of these proceedings.
                                 Appeal allowed.
PETITIONER:
A.M. MAIR & CO.
        Vs.
RESPONDENT:
GORDHANDASS  SAGARMULL.
DATE OF JUDGMENT:
30/11/1950
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
CITATION:
 1951 AIR    9            1950 SCR  792
 CITATOR INFO :
 R          1952 SC 119  (5)
 D          1955 SC  53  (11,12)
 R          1955 SC 468  (13)
 F          1976 SC 794  (8)
 RF         1984 SC1072  (40)
 RF         1989 SC1498  (18)
ACT:
Arbitration--Contract  by  broker for sale  of  goods  by
"sold" and "bouqht" notes--Arbitration clause--Seller  deny-
ing right of broker to enforce arbitration clause--Jurisdic-
tion  of  arbitrators-Validity  of  award--Construction   of
contract.
HEADNOTE:
   The  appellants,  a  firm of  brokers,  entered  into  a
contrct  for  the sale and purchase of a  quantity  of  jute
under a "sold note" addressed to the respondents which  they
signed as "A & Co., brokers" and a "bought note" of the same
date and for the same quantity of jute addressed to a  third
person  in  which also they signed as "A & C0.,  brokers  ".
The" sold note" contained the usual arbitration clause under
which  all matters, questions, disputes, differences  and/or
claims, arising out of and/or concerning, and/or in  connec-
tion   and/or  in  consequence  of,  or  relating  to,   the
contract  .........  shall be referred to the arbitration of
the   Bengal Chamber of Commerce."  A dispute having  arisen
with  regard to a matter which admittedly arose out  of  the
contract evidenced by the sold note, the appellants referred
the dispute for arbitration.  The respondents raised  before
the  arbitrators the further contention  that as the  appel-
lants were only brokers they were not entitled to refer  the
matter  to  arbitration.  The arbitrators made an  award  in
favour of the appellants.  The respondents made an  applica-
tion to the.High Court under the Indian Arbitration Act  for
setting aside the award:
    Held that, assuming that it was open to the  respondents
to  raise  this objection at that stage,  inasmuch  as  this
further dispute
      793
was also one which turned on the true interpretation of  the
contract  and  the  respondents must have  recourse  to  the
contract  to establish their claim, this was also a  dispute
arising  out of or concerning the contract and as such  fell
within  the arbitration clause, and the award could  not  be
set  aside  under the Indian Arbitration Act, 1940,  on  the
ground that it was beyond jurisdiction and void.
Heyman v. Darwins Ltd. ([1942.] A.C. 356) referred to.
JUDGMENT:
APPELLATE JURISDICTION: Civil Appeal No. XLII of 1950.
    Appeal  from  the judgment of the  Calcutta  High  Court
(Harries  C.J. and Chakravarthi J.) in Appeal from  Original
Order No. 78 of 1948.
N.C. Chatterjee (B. Sen,  with him),  for  the appellants.
A.N. Grover, for the respondents.
    1950. November 30. The judgment of Fazl Ali and Patanja-
li Sastri JJ. was delivered by
    FAZL  ALI  J.--This is an appeal from a  judgment  of  a
Bench  of the High Court of Judicature at Calcutta  in  West
Bengal,  reversing  the decision of a single Judge  of  that
Court,  who had refused to set aside an award given  by  the
arbitration tribunal of the Bengal Chamber of Commerce on  a
submission  made by the respondents. The facts of  the  case
are as follows.
    On the 25th January, 1946, the appellants entered into a
contract  with the respondents for the sale of 5,000  mounds
of  jute, which was evidenced by a "sold note" (Exhibit  A),
which  is in the form of a letter addressed to the  respond-
ents, commencing with these words: "We have this day sold by
your  order and for your account to the  undersigned,  etc."
The word "undersigned" admittedly refers to the  appellants,
and, at the end of the contract, below their signature,  the
word "brokers" is written.  On the same day, a "bought note"
(Exhibit  B) was addressed by the appellants to  the  Bengal
Jute  Mill Company, with the following statement:  "We  have
this day bought by your order and. for your account from the
undersigned,
794
etc."  In this note also, the word "undersigned"  refers  to
the  appellants  and underneath their  signature,  the  word
"brokers"  appears, as in the "sold  note" There are various
provisions  in the sold note, relating to delivery of  jute,
non-delivery  of   documents,  nonacceptance  of  documents,
claims,  etc.,  but the most material provisions are  to  be
found  in paragraphs 10 and 11. paragraph 10  provides  that
the sellers may in certain cases be granted an extension  of
time  for  delivering the jute for a  period  not  exceeding
thirty  days from the due date free of all penalties, and if
the contract is not implemented  within the  extended  peri-
od, the buyers would be entitled to several options, one  of
them being to cancel the contract and charge the sellers the
difference between the contract rate and the market rate  on
the  day on which the option is declared. In the same  para-
graph, there is another provision to the following effect: -
"Sellers shall notify Buyers that goods will or will not  be
shipped  within such extended period referred to in (a)  and
in  the case of sellers intimating that they will be  unable
to ship within the extended time Buyers shall exercise their
option within 5 working days of receiving notice and  notify
Sellers.  In the absence of any such notice from Sellers  it
shall  be  deemed that the goods have not been  shipped  and
Buyers  shall exercise their option within 5  working   days
after expiration of extended date and notify Sellers."
The  11th paragraph provides among other things  that
"all matters, questions, disputes, differences and/or claims
arising  out  of  and/or concerning   and/or  in  connection
and/or   in  consequence  of or relating  to  this  Contract
whether  or not obligations of either or both parties  under
this contract be subsisting at the time of such disputes and
whether or not this contract has been terminated or purport-
ed  to be terminated or completed shall be referred  to  the
arbitration  of  the Bengal Chamber of  Commerce  under  the
rules  of its Tribunal of Arbitration for the time being  in
force  and according to such rules the arbitration shall  be
conducted."
      795
    It is common ground that the respondents delivered 2,256
maunds of jute under the contract, but the balance of  2,744
maunds could not be delivered within  the stipulated period,
and,  by mutual agreement, time was extended up to the  30th
June, 1946. On the 2nd July, 1946, the respondents addressed
a letter to the appellants stating that the balance of  jute
could not be despatched owing to lack of wagons, and "exten-
sion"  was requested for a period of one month. In reply  to
this  letter,  which was received by the  appellants  on  or
about  the 3rd July, 1946, time was extended till  the  31st
July, 1946. On the same day on which the reply was  received
by  the respondents, i.e., on the 9th July, 1946,  they  ad-