Judgement

KHALILUZZAMAN SIDDIQUI, J. : 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 respondent s 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 widow s 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 Constitution.

2. The sole point for determination in the appeal is whether 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 injunction 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 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.

3. 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