Full Judgment
John Edge, Kt., C.J. and Banerji, J.
1. This appeal has arisen in a suit brought by two of the heirs of a deceased Muhammadan of the Sunni sect against two of the widows of the deceased to obtain possession of their share of the inheritance 'which came to them on the death of the deceased Muhammadan. In their plaint the plaintiffs expressed their willingness to pay a proportionate part of any dower-debt which might be found to exist in favor of the defendants. One of the defendants confessed judgment. The parties to the suit admitted that the dower-debt amounted to Rs. 1,000, in favor of Musammat Khudayat-un-nissa, but the Subordinate Judge dismissed the suit on the ground that ' as the defendant (Musammat Khudayat-un-nissa) says that her possession is in lieu of her dower-debt, which is still due by the deceased, it must be admitted that she is in possession of the property in lieu of her dower-debt. In such case it must be admitted that so long as her dower-debt is not paid inheritance cannot be enforced, nor can the plaintiffs get possession of their respective shares.' From that decree of dismissal this appeal has been brought.
2. The Subordinate Judge with all his experience should have known better than to have stated in a judgment that he acted upon the statement of one of the parties as to a fact not admitted by the other side and not found on evidence to be true. As to whether Musammat Khudayat-un-nissa in possession in lieu of her dower, that is, whether she was in the enjoyment of a lien for her dower, there is no evidence to show that either by contract with her deceased husband, or by any act of his or of the other heirs, or with their consent, she was put in possession of the property with the object of her having a lien on it for her dower. On her behalf some proceedings in a Court of Revenue were relied on as showing that she had an actually vested lien on the property for her dower. In those proceedings the Court of Revenue, adversely to the heirs, put Musammat Khudayat-un-nissa in possession in lieu of her dower. The Court of Revenue had no power or jurisdiction to put this lady or anyone else in possession in lieu of dower, or to adjudicate on the question of her alleged right of lien. So far as the question before us is concerned the order of the Court of Revenue is not only not decisive, but is beside the question which we have to decide.
3. What, according to the judgment of the Subordinate Judge, admittedly took place was this, the lady was not in possession at the time of her husband's death, but immediately on his death seized his property in order to have a lien for her dower. We cannot regard her possession as having been lawfully obtained within the meaning of the judgment of their Lordships of the Privy Council in case of Mussumat Bebee Bachun v. Sheikh Hamid Hossein 14 Moo. I.A. 377 at p. 384. So far as we are aware neither a Muhammadan widow nor any other creditors can hive themselves a lien by taking possession, without the consent or the authority of the persons entitled, of property to the possession of which those other persons are entitled. If a Muhammadan widow entitled to dower has not obtained possession lawfully, that is, by contract, with her husband, by this putting her into possession or by her being allowed, with the consent of the heirs, on his death to take possession in lieu of dower, and thus to obtain a lien of her dower, she cannot obtain that lien by taking possession, adversely to the other heirs, of property to the possession of which they, and she in respect of her share in the inheritance, are entitled. It would otherwise if the heirs consented to her taking possession in order to acquire lien. In such case the Muhammadan widow on taking possession would obtain a lien for her dower. Of course, whether she obtains a lien or not, she can, if her claim is not barred by limitation, obtain contribution from the heirs in satisfaction of such part of her dower as is not proportionately represented by the share of the inheritance which comes to herself.
4. We are led to the above conclusion from the inference to be drawn from the case of Musummut Wahid-un-nissa v. Musummut Shabrattun 6 B.L.R. 54, and the approval of that decision by their Lordships of the Privy Council in the case of Syud Bazayet Hossein v. Dooli Chund L.R. 4 I.A. 211. The view we have taken is supported by the decision of this Court in Mussumat Meerun v. Mussumat Najeebun N.W.P.C. Rep 1867, p. 335 and in Ali Muhammad Khan v. Aziz-ullah Khan I.L.R. 6 All. 50, and also by the decision in Bibi Mehrun v. Mussammat Kubeerun 13 W.R.C.R. 49. We hold in this case that Musammat Khudayat-un-nisa has failed to prove that she had any lawful lien on the property left by her deceased husband. We were referred by Mr. Abdul Roof, who appeared for the respondent, to the cases of Woomatool Fatima Begum v. Meerumun-nissa Khanum 9 W.R. C.R. 318, and of Ahmed Hossein v. Mussammat Khodeja 10 W.R. C.R. 369 and Balund Khan v. Mussumat Janee N.W.P.H.C. Rep. 1870, p. 319, but it does not appear in those cases that the widow had taken possession without the consent or authority of the persons interested.
5. We set aside the decree of the Court below, and, the case having been decided on this preliminary point, we remand it under Section 562 of the Code of Civil Procedure to be decided on its merits.
6. Costs here and hitherto will abide the result.