JUDGMENT

Campbell, J. - The suit out of which this second appeal arises was by the sister of Rahmat Ali Shah, deceased against his widow for possession by partition of half of a house owned by Rahmat Ali Shah. The suit was resisted on the ground that the widow was entitled to retain possession until payment of her dower of Rs. 5,000. The First Court decreed the suit, but the finding was reversed on appeal and the suit was dismissed by the District Judge.

2. The following are the learned District Judge's findings,--The defendant widow's dower was fixed at Rs. 5,000 and was not paid. She has been in possession of the house ever since the death of her husband who was the owner of it. The house was purchased by Rahmat Ali Shah in the name of a third person, Dhanpat Rai. After Rahmat Ali Shah's death Dhanpat Rai executed a deed declaring that Rahmat Ali Shah was the actual purchaser. The contention by the plaintiff that after Rahmat Ali Shah's death Dhanpat Rai had put the plaintiff and the defendant in possession of the house jointly was not proved.

3. In these circumstances the learned District Judge held that the defendant was entitled to retain possession of the house until her dower-debt was paid and he referred to paragraph 162 of Wilson's Anglo-Muhammadan Law the first part of which reads as follows:"When a widow is in possession of the undistributed property of her deceased husband, having obtained such possession lawfully and without force or fraud, and her dower or any part of it is due and unpaid, she is entitled against the other heirs of her husband to retain such possession until her dower-debt is paid."

4. The question in second appeal is whether he learned District Judge has interpreted and applied correctly the provisions of Muhammadan Law relating to a widow's lien on her deceased husband's property as a creditor for dower.

5. Counsel for the plaintiff appellant relies upon a decision published as Amanat un-nissa v. Bashir-un-nissa [1895] 17 All. 77 and upon a pronouncement by their Lordships of the Privy Council in Hamira Bibi v. Zubada Bibi [1916] 38 All. 581 on the law of dower. The first named authority undoubtedly is in favour of the plaintitf, but it has been dissented from in several subsequent rulings as will be shown presently. In Amanat-un-nissa v. Bashir un-nissa [1895] 17 All. 77, a previous Privy Council judgment, Bebee Bachun v. Sheikh Hamid Hussein [1871] 14 M.L.A. 377 , which is the basis of what has been quoted above from paragraph 162 of Wilson's Anglo Muhammadan Law was interpreted to mean that if Muhammadan widow, entitled to dower has not obtained possession lawfully, that is, by contract with her husband, by his putting her into possession or by her being allowed, with the consent of the heirs, on his death to take possession in lieu of dower, and thus to obtain a lien for her dower, she cannot obtain that lien by taking possession adversely to the other heirs, of property to the possession of which they and she in respect of her share in the inheritance are entitled.

6. In Hamira Bibi v. Zuhaida Bibi [1916] 38 All. 581 the precise question now under consideration was not in issue but in a paragraph dealing with the Muhammadan Law on dower it was stated. "The dower ranks as a debt and the wife is entitled, along with other creditors to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that if she lawfully, with the express or implied consent of the husband, or his other heirs, obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfied."

7. In a subsequent judgment by the same Judges who delivered Amant-un-nissa v. Bashir-un-Nissa [1895] 17 All. 77 [reported at page 93 of the same Volume,] Muhammad Karim Ullah Khan v. Amani Begam [1895] 17 All. 93 there was a slight modification