The right of a widow to retain possession of her husband's property in lieu of her dower debt is heritable, but an heir of a widow who held the property of her husband in lieu of her dower debt cannot enforce that right to hold the property by a suit, when the heir of the widow did not obtain possession or when the heir did not continue to be in possession, of the property like the widow.

( 1 ) THIS is a special appeal brought on a permission granted by a learned single Judge to appeal to a Division Bench. The case raised interesting questions of Mohammdan Law.

( 2 ) THE plaintiff, who is the appellant before us, filed a suit for possession of certain properties and for mesne profits. The plaintiffs case was that she was the sister of one Mohammadi Bibi, who had become a full owner of the properties in suit after the death of her husband. Hamid All and that subsequently Mohammadi Bibi, died leaving the plaintiff as her sole heir. The plaintiff laid claim to the properties which were in the possession of Mohammadi Bibi and she challenged the right of the defendants to have mutation of their names in respect of the said properties or to continue in possession thereof.

( 3 ) MOHAMMADI Bibi was, as noticed above, the wife of Hamid Ali and on Hamid Alis death she appears to have retained possession of the properties in lieu of her dower debt. On Mohammadi bibis death, which event took place in the year 1944, the defendants got into possession over the properties in dispute in assertion of their right as heirs of Hamid Ali deceased.

( 4 ) THE defendants raised three defences: first, that the disputed, properties did not belong to mohammadi Bibi but belonged to her husband, secondly, that Mohammadi Bibi was in possession of the properties in lieu of her unpaid dower debt and not as owner, and lastly, that the plaintiff was not the sister of Mohammadi Bibi as she claimed to be and, therefore, she was not entitled to claim the properties as an heir even if the properties could be assumed to be those of Mohammadi Bibi, The defendants also raised a question of limitation and the question of limitation that was raised was to the effect that if the suit was on the basis of a title which rested on an assertion to hold the properties in respect of dower debt, then the suit would be out of time since the suit had been filed more than six months after Mohammadi Bibis death, for it was admitted between the parties that the plaintiff never got into possession of the properties after mohammadi Bibis death.

( 5 ) THE courts below came to the conclusion that Mohammadi Bibi was not the owner of the properties but that she held those properties in lieu of her dower debt, and secondly, that the plaintiff, though she was the sister of Mohammadi Bibi, she not being an heir to Hamid Ali, could not possibly recover possession of the properties from the defendants who were found to be the heirs of Hamid Ali. The courts below also found that the right to recover possession of the properties under the provisions of Section 9 of the Specific Relief Act was barred inasmuch as the suit had been filed beyond six months of dispossession, indeed there being no question of dispossession so far as the plaintiff was concerned the plaintiff could not justly seek relief under the provisions of Section 9 of the Specific Relief Act.

( 6 ) THE questions that arose in the forefront for determination in order to enable one to adequately appraise the Tights of the parties to the suit and to properly adjudicate upon them were, first, what was the nature of the right which a widow had in respect of her husbands property qua a dower debt, and secondly, whether an heir of a widow who held the property of her husband in lieu of her dower debt could enforce that right to hold the property by a suit, when the heir of the widow did not obtain possession or when the heir did not continue to be in possession, of the property like the widow or to put it in other words, when the heirs possession was not, so to speak, a continuation of the possession of the widow over the property.

( 7 ) THERE is indeed high authority for the proposition that the widows claim for dower does not amount to a charge on any specific property of her deceased, husband (see Ameer-oon-Nissa v. Moorad-oon-Nissa, 6 Moo Ind App 211 (PC ). There is also high authority for the proposition