If the widow is in actual possession of her husband’s property, she is entitled to retain it until her dower is paid.
A widow’s right to retain possession of her husband’s estate, in lieu of her dower, is for a special purpose. It is by way of compulsion to obtain speedy payment of the dower, which is an unsecured debt. The substantive right is the debt and the share.
The adjective right is retention. Though she has no greater right than that of any other unsecured creditor, yet, if she obtains possession of the deceased husband’s property lawfully and without force or fraud, she is entitled to hold it until her debt is satisfied.
According to the Calcutta High Court, possession must have been obtained, not only lawfully and without force or fraud, but also with the express or implied consent of the husband or his other heirs. According to the Madras and Bombay High Courts, no such consent is necessary. The latter view seems to be more reasonable.
For, the possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower-debt is paid is conferred upon her by Muhammadan law and not by the agreement or bounty of her deceased husband or his heirs.
The conflict of opinion referred to above, between the Madras and Bombay High Courts on the one hand, and the Calcutta High Court on the other, arose from the judgment of the Privy Council in the case of Hamira Bibi v. Zubidabibi, (1916) 43 I.A. 294.
In this case, their Lordships said, “But the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right, however, is not greater tnan that of any other unsecured creditor, except, that if she lawfully, with the express or implied consent of the husband, or his heirs, obtains possession of his estate, to satisfy her claim…. This is called the widow’s lien for dower, and this is the only creditor’s lien of the Mussalman law…”
The Madras and Bombay High Courts have held that the observations of the Privy Council as to the necessity of consent were merely obiter dicta (i.e., remarks made by the way, and not on a point before the Court), whereas the Calcutta High Court held that the observations of their Lordships were not obiter dicta, but defined the nature of the widow’s right of retention.
Her Liability to Account:
So long as she is in possession of the property in lieu of dower, the widow is bound to account for the rents and profits of the property; but in such a case, she is also entitled to interest on the dower-debt. If she is wrongfully dispossessed, she may sue for recovery of possession. But if she voluntarily gives up possession, she cannot recover it.
Right of Retention Gives no Title:
The right of retention does not give the widow any title to the property; therefore, she cannot alienate the property, even to satisfy her dower-debt. Though the widow is not entitled to any charge on the husband’s property for her dower, such a charge may be created by an agreement or by a decree.
In one case, A, a Muslim, died, leaving a widow and a sister,. Sometime after A’s death, the widow applied to the Collector to have the entire estate of A registered in her name, alleging that she had been in possession of the lands as an heir and also on account of her dower.
The application was opposed by the sister, but the properties were registered in the widow’s name. The sister filed a suit against the widow to recover her share in the estate of A. The Privy Council held that the widow was entitled to retain possession until her dower was satisfied.
(Beben Bachun v. Sheikh Hamid, (1871) 14 M.I.A. 377) A widow, though she may be in possession of her husband’s property, is entitled to sue his other heirs to recover her dower-debt. But, in such a suit, she must offer to give up the possession.
Not a Mortgage: No Priority over Unsecured Creditors:
It has been held by the Supreme Court that a widow in possession of property in lieu of dower is not in the position of a mortgagee, and therefore, is not entitled to priority against the unsecured creditors of her husband. (Kapore Chand v. Kadar Unnissa, (1950) S.C.R. 747)
Nature of Widow’s Right to Hold Possession:
There is considerable difference of opinion regarding the nature of the widow’s right to retain possession. One view is that it is a personal right, and not property; therefore, it is neither transferable nor heritable. (Hadi Ali v. Akbar Ali, (1908) I.L.R. 20 All. 262.)
It had also been held in Zobair Ahmed v. Jainandan Prasad, (AIR 1960 Pat. 147) that the widow’a right is a personal right, and not a lien, and as such, it is not transferable.
The other view is that it is property, and therefore, is both heritable and transferable (Ali Baksh v. Allahadad, 61 I.C. 376). But after the decision of the Privy Council in Maina Bibi v. Chaudri Vakil (52 I.C. 145), it appears that it is heritable.
A Muslim died leaving a widow, daughter, and his father. The widow is in lawful possession of her husband’s property in lieu of dower. The widow dies leaving the daughter as her only heir. Is the daughter entitled to retain possession of the property as against the father?
The daughter is entitled to retain possession of the property as against the father. The father is entitled to possession of his share only on payment of his proportionate share of the dower- debt. (Tahir-un-nissa v. Nawab Hassan, (1914) I.L.R. 36 All. 551)