The main legal point established in the judgment is that under Mahomedan law, a widow's possession of her deceased husband's estate in lieu of her unpaid dower is valid and does not extinguish the heirs' right to the property. The court also clarified that the widow's subsequent possession does not prevent the heirs from claiming the property in the future.

Judgement

Appeal (No. 79 of 1922) from a decree of the High Court (March 19, 1919) affirming a decree of the Subordinate Judge of Allahabad (March 18, 1916).

The facts, which appear more fully from the judgment of the Judicial Committee, were shortly as follows—

A Mahomedan named Muin-ud-din died in 1890 possessed of immovable property, the subject of the present litigation. He was survived by his widow, the appellant Maina Bibi, who entered into possession of his property. In 1902 the plaintiffs, respondents in the [present suit, sued the widow, claiming immediate possession of their shares of the estate. The widow pleaded that the estate was a gift to her by her husband, and alternatively that she was entitled to possession until her dower was paid. The trial judge in 1903 made a decree for possession on condition that the plaintiffs paid to the widow Rs.25,387 within six months, and the decree provided that in default of payment the suit should be dismissed An appeal to the High Court was dismissed, the time for the payment being extended to December 3, 1906. The plaintiffs-respondents did not pay the money and the widow remained in possession.

In 1907 Maina Bibi executed two deeds of gift of her husbands estate in favour of the defendants-appellants, to whom she gave possession. The terms of the deeds appear from the judgment; by them the widow purported to convey an absolute title.

The plaintiffs-respondents filed the present suit in 1915 against the widow, Maina Bibi and her alienees, the defendants-appellants. The plaintiffs claimed that the widow could not according to Mahomedan law transfer the properties. They claimed possession unconditionally, or alternatively upon payment of the proportionate amount of the dower debt, after deducting the profits of the property.

The defendants pleaded, among other things, that the decree of 1902, affirmed in 1906, operated as res judicata; further that the claim was barred by limitation.

The Subordinate Judge held that the claim was not barred, and that the plaintiffs were entitled to possession of their shares without any condition as to payment.

Upon appeal to the High Court the decision was affirmed. The learned judges Rafique and Lindsay JJ.) were of opinion that the decision in Bachun v. Hamid Husain (( 1871) 14 Moo. I. A. 377.) established that according to Mahomedan law a widow in possession of her husband s estate in lieu of her unpaid dower cannot alienate the estate. They held further that the former decree did not operate as res judicata, since the cause of action in the present suit was different.

1924. Oct. 27, 28. De Gruyther K.C. and Kenworthy Brown for the appellants. Upon the plaintiffs failing to make the payment conditional to the decree of 1903 affirmed in 1906 the plaintiffs claim as heirs was extinguished. The decree dismissing the suit operated as res judicata. The position of the widow was analogous to that of a usufructuary mortgagee. After a failure to execute a decree for redemption a second suit for redemption will not lie Vedapubatti v. Vellabha Valiya Raja (( 1902) I. L. R. 25 M. 300 (F.B.)); 8ita Ram v. Madho Lal (( 1901) I L R. 24 A. 44.); Transfer of Property Act, 1882, ss. 58 (6), 92, 93. Muhammad Sami-ud-din v. Mannu Lal (( 1889) I L R. 11 A. 386.) is distinguishable, as in that case the decree was not for possession. After the decree the plaintiffs only right was by execution proceedings Sahibzad Aziz Bibi (( 1883) 3 All W. N. 165.); Code of Civil Procedure, s. 47; King v. Hoare. (( 1844) 13 M. & W. 494, 504.) The plaintiffs could and should have prayed in the former suit for a declaration of their rights as heirs; not having done so they cannot now claim as heirs ; Code of Civil Procedure, 1908, s. 11, Order n., r. 2.

The donees from the widow have the same right to retain possession as the widow had; both the dower debt and the right of retention were heritable and transferable Ali Bakhsh v. Allahdad Khan (( 1910) I. L. R. 32 A. 551, 560.); Mo