JUDGMENT

1. This is an appeal on behalf of the first defendant in a suit for recovery of possession of land. The subject-matter of the dispute originally belonged to a Mahomedan by name Sarafat who died about the year 1897. He left two widows, who are the first two defendants in the present suit, a son, now dead, by the second widow, and two sons by another wife who had predeceased him. He also left a nephew, the son of his brother, who is the plaintiff in the present action. After his death, his property, after successive devolution, to the details of which reference is not necessary for our present purpose, vested in his son Said-ud-din. Upon the death of the latter, the plaintiff sues to recover possession of a two-thirds share by right of inheritance. The claim is resisted by the first widow as also by two usufructuary mortgagees, who have derived title from the heirs of the original owner. The first widow resists the claim on the ground that so long as her dower to the extent of two hundred rupees remains unpaid, she is entitled, under the Mahomedan Law, to continue in possession. The Court of first instance found that the widow was entitled to the dower debt, and made a conditional decree in favour of the plaintiff, and that upon payment by him of a proportionate share thereof, he would recover possession. As regards the usufructuary mortgagees, the Court held that the plaintiff was bound to redeem them or to wait till the expiry of the term fixed in the mortgage instruments. Against this decree the plaintiff appealed to the Sub-Judge who has affirmed the decree of the original Court so far as the usufructuary mortgagees are concerned, but has varied it in so far as the widow is concerned. The Subordinate Judge has held that the plaintiff is entitled to recover possession from the widow without payment of the dower debt, and that the widow might claim her dower by way of set-off if the plaintiff should hereafter sue her for recovery of mesne profits. The widow has now appealed to this Court and on her behalf it has been argued that the decree made by the Subordinate Judge is contrary to well-recognised principles of the Muhammadan Law, and that the plaintiff is not entitled to recover possession from her till her dower debt had been satisfied. In our opinion, this contention is well-founded and must prevail.

2. It cannot be disputed that under the Muhammadan Law, when a widow is in possession of the undistributed property of her deceased husband, such possession having been obtained lawfully and without force or fraud, and her dower or any part of it is due and unpaid, she is entitled as against the other heirs of her husband to retain such possession until her dower debt is paid; but she must account to them for the profits received. This position is established by the decisions of the Judicial Committee in the cases of Ameeroonissa v. Moradonnisia 6 M.I.A. 211 and Bachun v. Hamid Hossein 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. 113 . The same view has been uniformly adopted in this Court in the cases of Woomatool Fatima v. Meeriamunnissa 9 W.R. 318; Ahmed Hossein v. Khodeja 10 W.R. 369; Tajim v. Wahed Ali 22 W.R. 118; Bakreedan v. Ummatul Fatima 3 C.L.J. 541 and Umatul Mehdi v. Kulsum 35 C. 120 (PC) : 8 C.L.J. 245. The cases of Wahid-un-nissa v. Shubrathun 6 B.L.R. 54 : 14 W.R. 239 and Bazayet Hossein v. Dooli Chand 5 I.A. 211 : 4 C. 402 (PC) do not militate against this view, as they are authorities merely for the proposition that a widow, though her dower remains unpaid, cannot follow the estate of her husband when it has passed into the hands of bona fide purchasers for value without notice of her claim. It has been contended, however, by the learned Vakil for the plaintiff-respondent, upon the authority of the decision in Bibi Tasliman v. Bibi Kariman 6 Ind. Cas. 44 : 12 C.L.J. 584 that the possession of the widow cannot be maintained as against the heirs, unless it is established that such possession was obtained by a