The main legal point established in the judgment is that a Mahomedan widow's right to retain possession of her husband's estate in lieu of her mahar debt is a heritable and transferable right, and the transferee must also be put in possession.

( 1 ) THE plaintiff is the brother and defendant 1 is the widow of one Dilawar Khan to whom the plaint schedule house belonged. The plaintiff sued defendant 1, and defendant 2 who has purchased it from her, for partition and possession of his 3/4th share in it. Defendant 1 pleaded that her husband had settled 39 tolas of gold on her as her mahar or dower; she had borrowed and spent some monies for meeting the medical charges and funeral expenses of the deceased. She had also paid some arrears of Municipal assessment due on the property. In order to pay off those debts and for her maintenance she had sold and conveyed all her rights in the suit property including her right to retain possession till she was paid off, to defendant 2 for Rs. 1000/- and delivered over possession of the same to him. She, and therefore, her alienee defendant 2 were entitled to retain possession till the plaintiff was paid off his proportionate share of the dower debt. Defendant 2 also raised the same defence.

( 2 ) THE plaintiff denied the amount of the mahar as well as the other items claimed by defendant 1.

( 3 ) BOTH the Courts below have however found that the mahar fixed was 39 tolas of gold and that it has remained unpaid. That finding is binding on me in second appeal. The learned Munsiff fixed the amounts due to defendant 2 for medical charges and funeral expenses at Rs. 150/- and rs. 250/- respectively. The Subordinate Judge has fixed them at Rs, 507- each and has made the same a first charge on the suit property. The amounts fixed by the learned Subordinate Judge appear to be more probable considering the status of the parties and the paucity of the evidence and I see no reason to differ from his finding in this matter.

( 4 ) THE learned Munsif made a decree for partition and possession of the 3/4th share in favour of the plaintiff conditional on his paying his share of the mahar debt to defendant 2. The learned subordinate Judge has vacated that direction and held that defendant 2 had no right to remain in possession till he was paid the 3th share of the mahar debt.

( 5 ) THE defendants have come up in second appeal. It is contended by Mr. V. Krishnamurthy, learned Counsel for the Appellants, that the learned Subordinate Judge ought to have held that the sale deed Ex. 4 dated 6-10-1947 executed by defendant 1 in favour of defendant 2 operated by its terms to convey the right of retention of possession of the suit property until the plaintiff had paid his proportionate share of the dower debt. He argues that there is no doubt that the widow of a. deceased Mahomedan who is actually in possession of her husband's property has a right to retain possession of the same. He relies for that position on a case decided by this Court in 31 Mys. CCR 50 (Al) where it has been laid down that a Mahomedan widow who was in lawful possession of her husband's house was entitled as against the other heirs of her husband to retain that possession until her dower was paid. He was also referred to passages in Mulla's mahomedan Law 12th Edn. , page 237 para 224 and Ameer Ali's Mahomedan Law, VIII Edn. page 490. He urges that the right to retain possession has been held to be heritable also and that there is nothing in Mahomedan or other law which would prevent her from transferring that right along with the property in favour of another by a valid conveyance nor would such transfer be opposed to any other principle of law. That such a right of a Mahomedan widow to retain possession of her husband's estate in lieu of her mahar debt is a heritable right has been recognized in -- 'azia Ullah Khan v. Ahmad Ali Khan', 7 All 353 (A); -- 'ali Bakhsh v. Allahabad Bank', 32 All 551 (B); and -- 'majid Mian Baxu Mian v. Bibi Saheb Jan', AIR 1915 bom 214 (C ). The same principle has been recognized even in -- 'coovarbai Nasarwanji v. Hayathi Budhan-bhai', A. I. R. 1943 Bom. 372 (D) on which respondent relies. See also -- 'mashal singh v. Ahmad Husain', A. I. R. 1927 All

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