A Muslim widow has a right to retain property till her dower is paid, provided she has entered into possession of the property lawfully and without force or fraud, there is a debt due to her in respect of her dower, and she has made a claim in respect of that dower.

Chagla, C.J.

1. The question that arises for our determination in this second appeal is the right of a Muslim wife to dower. The suit out of which this appeal arises was filed for the administration of the estate of one Inayat who died in 1980 leaving a widow Papabi and four daughters. Inayat had a brother living at the time of his death by the name of Kadumiya, and the parties arrayed on the two sides of the record are Inayats children and the children of Kadumiya who also claim an interest in the estate of their uncle, and the question that we have to decide is whether the children of Inayat as the heirs of their mother Papabi who died in 1935 are entitled to retain certain properties till the dower that was due to their mother has been paid. It has been found by both the Courts that on the death of Inayat, Papabi went into possession of certain properties belonging to her husband. In this appeal we are only concerned with the properties mentioned in Schedules II and v which the heirs of Papabi claim to regain till the dower due to their mother was paid. It has also been found as a fact by both the Courts that dower in the sum of 40,000 Ashrufees which amount to Rs. 6,40,000 was fixed at the time of the marriage and that dower remained unpaid. A claim has also been made by the heirs of Papabi in respect of this dower. On these admitted facts the question arises whether the claim made by the heirs of Papabi is justified according to Mahomedan law. 2. The right of a Muslim wife or widow to retain property has been compared to a creditors lien, and as I shall presently point out the authorities lay down that the right of the wife to retain property arises provided the following conditions are satisfied : She must have entered into possession of the property lawfully and without force or fraud. There must be a debt due to her in respect of her dower and she should make a claim in respect of that dower. If these conditions are satisfied, then the wife is entitled to retain possession of the property till the debt is discharged. It is further clearly established that the debt in respect of dower is enforceable not only by the wife, but also her heirs. It is further established that the right of possession is a heritable right and not only the wife is entitled to retain possession, but also her heirs. Now, the position was considered by the Privy Council as early as Mt. Beebee Bachun v. Sheikh Hamid Hossein, 14 M. I. A. 377 : (10 Eeng. L. R. 45 P. C.) and their Lordships held that a Mahomedan widow had a lien as a creditor on the estate of her husband for her deferred dower and was entitled to retain possession until her dower was satisfied. And their Lordships say this (p. 884):

"..... the Appellant (i.e. the widow), having obtained actual and lawful possession of the estates under a claim to hold them as heir and for her dower, their Lordships are of opinion, that she is entitled to retain that possession until her dower is satisfied, and the respondents cannot recover the possession of their shares unless that satisfaction has taken place."

2. Then their Lordships go on to state that it was not necessary to decide whether the right of the widow in possession was a lien in the strict sense of the term. Then they added (p. 884) :

"Whatever the right may be called, it appears to be founded on the power of the widow, as a creditor for her dower, to hold the property of her husband, of which she has lawfully, and without force or fraud, obtained possession, until her debt is satisfied, with the liability to account to those entitled to the property, subject to the claim for the profits received."

Now, in the case before us the trial Court held in favour of the claim of the heirs of Papabi, The learned appellate Judge has taken a different view, and the only reason why he has taken that view is that according to him Papabi did not obtain possession of the property in lieu of her dower. According to the learned. Judge it is not suf