# KAPOJ\E CHAND v. KADAR UNNISA BEGUM AND OTHERS

- **Citation:** [1950] 1 S.C.R. 747
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Case number:** Civil Appeal No. 189 of 1950
- **Bench:** Mehr Chand Mahajan, R. S. Naik, Khalil Uzzaman J J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kapoj-e-chand-v-kadar-unnisa-begum-and-others-147
- **Pages:** 8

## Headnote

Muhammadan Law-Dower-Widow in possession of husband's
estate in lieu of dower-Whether entitltd to priority over crediiorsNature of widow's lien for dower.
A Muhammadan widow in possession of her husband's estate
in lieu of her claim for dower with the consent of the other bairn
or otherwise is not entitled to priority as against his other un~
J9b0
Oct l'l.
, ,. ,
secured creditors. There is nothing inherent in the very nature
\)\ (\.\)~~~ Vl'n\c\1 en\it\es it to priority.
748
SUPREME COURT REPORTS
[1950]
1950
Ameer Ammal v.
Sankaranarayan~ Chetty (LL.R. 25 Mad.
658), Meer Melter Ally v . . mt. Amanee (11 W. R. 212), Mania
Kapore Chand Bil~i v. Was-i Ahrnod (LI .... R 41 A_ll. fJ58), Hami1·a Btbi v. Zubaid(;,
v.
Bibi (A.LR 1916 P.O. 46), Im:iaz Be9"m v. Abdul Karim Khw
Kadar Unnisa (A.LR. 1930 All. 881) referred to.
Begum di Others.
Kulwm Bibi v. Sliiam S.inder La.l (A.LR. 1936 Ail. 600),
Mst. Ghafooran v. Ram Chandra Dos ( .\.I.R. 1934 All. 168),
Mohamed 'l'w·abuddin v. Yasin Begum :_17 D.L.R. 224) diRapproved.
Maina Bibi v. Chaudh>i Vakil Ahmad (52 I.A. 145) explained.
APPEAL from a judgment of the High Court of
Hyderabad under article 374 (4) of the Constitution
of India: Civil Appeal No. 189 of 1950.
Abdul Wahid Owasi, for the appellant.
Ahmed Saeed Khan, for respondent No. 1.
1950. October 12.
The judgment of the Court was
delivered by
Khat;lunaman J.
KHALILUZZAMAN ].-This appeal arises out of execution proceedings. The appellant, Kapurchand, had a
money decree, amongst others, against one Mir Hamid
Ali Khan, husband of the respondent Mst. Kaderunnissa.
In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached.
To the attachment the widow of the deceased raised an
objection on the ground that she was in possession
of it in lieu of her outstanding <lower and could not Le
dispossessed till her claim was satisfied. The objection
was allowed by the executing court and it was ordered
that the house be sold subject to the respondent's.
claim, the decree-holder being entitled to the surplus,
if any, out of the sale proceeds.
There was not much
possibility of the house fetching more in the execution
sale than the amount due on account of dower. The
court took the view that the widow's claim for dower
had priority over the debts due to other unsecured
creditors and her position was analogous to that of a
secured creditor. The decreeholder made an application in revision to the High Court but without any
success.
He then preferred an appeal to the Judicial
Committee of the State and it is now before us under
article 374 (4) of the Constitution.
••
S.C.R.
SUPREME COURT REPORTS
749
The sole point for determination in the appeal is
1950
whether a widow in possession of her husband's estate
in lieu of her claim for dower with the consent of the Kapore Cha"d
v.
other heirs or otherwise is entitled to priority as against Kadar unnisa
his other unsecured creditors. It is conceded that the Bequm" Others. ·
husband died leaving the house in dispute and leaving
. -
outstanding a number of debts including the one due Khatilu.,aman J.
to the decree-holder. The house was not charged or
mortgaged by him either in favour of his wife or in
favour of any of the creditors. If the husband had
created any charge in favour of his wife in lieu of her
claim for dower, then it cannot be doubted that she
would have priority over the unsecured creditors. No
specific Quranic text or any other original authority on
Muslim law has been cited in support of the contention
that a widow's claim for dower stands on a higher
footing than the claim of any creditor in respect of an
unsecured debt. Reference was made to a text in
Sur-ai.Nissa which enjoins a husband to pay the claim
of his wife and it also says that widows and minors
should be given favourable treatment. This text does
not give an absolute protection to the claim of the
widow as against other claims. On the other hand, a
Muslim is enjoined to observe his eng

## Text

. ,
•f
S.C.R.
SUPREME COURT REPORTS
747
that the Registrar can stay the proceedings. It seems
1950
to us that the act of the Registrar in asking the civil
.
t
t
t .
d'
d'
b f
.
Co-opB'atwe
cour to s ay execu 10n procee ings pen mg
e ore it Soci•tY of n, bts
is a clear encroachment on the powers of the executing
v.
court and is in excess of his statutory powers and
Nandlal •
should have been ignored by the courts.
As a fresh certificate was issued by the Nazim in
Mahajan J.
order to cure a defect that might be said to exist in the
original certificate because of its having been sent by
the Madadgar N azim, it is unnecessary to consider the
contention of the learned counsel that there was
no proper certificate in this case and the proceedings in execution therefore were
without · jurisdiction.
The result therefore is that this appeal is allowed,
the decisions of all the three courts below are set aside
and the executing court is directed to proceed with
the execution of the decree from the stage at which it
was interfered with by the letter received from the
office of the Registrar. In the circumstances of this
case we will make no order as to costs of the proceedings throughout.
Appeal allowed.
[IN THE SUPREME CouRT·OF INDIA (HYDERABAD).]
KAPOJ\E CHAND
v.
KADAR UNNISA BEGUM AND OTHERS
[MEHR CHAND MAHAJAN, R. S. NAIK and
KHALIL UZZAMAN J J.J
Muhammadan Law-Dower-Widow in possession of husband's
estate in lieu of dower-Whether entitltd to priority over crediiorsNature of widow's lien for dower.
A Muhammadan widow in possession of her husband's estate
in lieu of her claim for dower with the consent of the other bairn
or otherwise is not entitled to priority as against his other un~
J9b0
Oct l'l.
, ,. ,
secured creditors. There is nothing inherent in the very nature
\)\ (\.\)~~~ Vl'n\c\1 en\it\es it to priority.
748
SUPREME COURT REPORTS
[1950]
1950
Ameer Ammal v.
Sankaranarayan~ Chetty (LL.R. 25 Mad.
658), Meer Melter Ally v . . mt. Amanee (11 W. R. 212), Mania
Kapore Chand Bil~i v. Was-i Ahrnod (LI .... R 41 A_ll. fJ58), Hami1·a Btbi v. Zubaid(;,
v.
Bibi (A.LR 1916 P.O. 46), Im:iaz Be9"m v. Abdul Karim Khw
Kadar Unnisa (A.LR. 1930 All. 881) referred to.
Begum di Others.
Kulwm Bibi v. Sliiam S.inder La.l (A.LR. 1936 Ail. 600),
Mst. Ghafooran v. Ram Chandra Dos ( .\.I.R. 1934 All. 168),
Mohamed 'l'w·abuddin v. Yasin Begum :_17 D.L.R. 224) diRapproved.
Maina Bibi v. Chaudh>i Vakil Ahmad (52 I.A. 145) explained.
APPEAL from a judgment of the High Court of
Hyderabad under article 374 (4) of the Constitution
of India: Civil Appeal No. 189 of 1950.
Abdul Wahid Owasi, for the appellant.
Ahmed Saeed Khan, for respondent No. 1.
1950. October 12.
The judgment of the Court was
delivered by
Khat;lunaman J.
KHALILUZZAMAN ].-This appeal arises out of execution proceedings. The appellant, Kapurchand, had a
money decree, amongst others, against one Mir Hamid
Ali Khan, husband of the respondent Mst. Kaderunnissa.
In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached.
To the attachment the widow of the deceased raised an
objection on the ground that she was in possession
of it in lieu of her outstanding <lower and could not Le
dispossessed till her claim was satisfied. The objection
was allowed by the executing court and it was ordered
that the house be sold subject to the respondent's.
claim, the decree-holder being entitled to the surplus,
if any, out of the sale proceeds.
There was not much
possibility of the house fetching more in the execution
sale than the amount due on account of dower. The
court took the view that the widow's claim for dower
had priority over the debts due to other unsecured
creditors and her position was analogous to that of a
secured creditor. The decreeholder made an application in revision to the High Court but without any
success.
He then preferred an appeal to the Judicial
Committee of the State and it is now before us under
article 374 (4) of the Constitution.
••
S.C.R.
SUPREME COURT REPORTS
749
The sole point for determination in the appeal is
1950
whether a widow in possession of her husband's estate
in lieu of her claim for dower with the consent of the Kapore Cha"d
v.
other heirs or otherwise is entitled to priority as against Kadar unnisa
his other unsecured creditors. It is conceded that the Bequm" Others. ·
husband died leaving the house in dispute and leaving
. -
outstanding a number of debts including the one due Khatilu.,aman J.
to the decree-holder. The house was not charged or
mortgaged by him either in favour of his wife or in
favour of any of the creditors. If the husband had
created any charge in favour of his wife in lieu of her
claim for dower, then it cannot be doubted that she
would have priority over the unsecured creditors. No
specific Quranic text or any other original authority on
Muslim law has been cited in support of the contention
that a widow's claim for dower stands on a higher
footing than the claim of any creditor in respect of an
unsecured debt. Reference was made to a text in
Sur-ai.Nissa which enjoins a husband to pay the claim
of his wife and it also says that widows and minors
should be given favourable treatment. This text does
not give an absolute protection to the claim of the
widow as against other claims. On the other hand, a
Muslim is enjoined to observe his engagements and to
•
keep his contracts faithfully and to discharge his
liabilities in an honest manner. No distinction is
made between an injunction relating to the payment
of dower on the one hand and the payment of the
other debts on the other. The learned advocate for
the appellant contends that a widow's claim for outstanding dower even when she is in possession of her
husband's estate in lieu of her claim with the consent
of other heirs of the deceased stands on no better footing than that of unsecured creditors, though in their
absence she is entitled to be paid in full before t~e •
estate is distributed among the heirs. He drew our
attention to certain passages from the ho! y Quran and
from . writings of other jurists on this subject. The
learned counsel for the respondent, however, argued that
a widow has a lien on her husband's estate for her
outstanding dower and when she has entered "into
~6
750
SUPREME COURT REPORTS
[ 1950]
1900
possession of his house after his death she cannot be
dispossessed till her claim is satisfied either by the
Kapo•·'. .. Cha"d heirs or by the unsecured
creditors.
He placed
Kad"' un""" reliance on a decision of the Hyderabad High Court
Begum Ji Others. and also of some other High Courts in India.
A careful examination of the various authorities on
Kha!iluuama" J. the subject shows that the proposition of law on this
subject has been correctly enunciated in Tyabji's
Muhammadan Law (1940 Edn.) in these terms: (1) A
widow by• her lien does not.have any priority over
other creditors ; (2) Mehr as a debt has priority over
other heirs' claim to have the estate distributed among
themselves.
These two considerations are not affected
by the fact of her being in or out of possession of the
estate. It seems clear that unless the husband by his
own act has placed the widow in a better position
than his other creditors, her claim for dower is in the
nature of an unsecured debt and she has no priority of
any kind against the other unsecured creditors of her
husband. The Quranic text in Surai-Nissa, Ruku 4,
enjoins the payment of dower in preference to bequests
and. inheritance but it is silent on the question of
priority of dower debt in relation to other creditors.
In Mubsoot Sarkhasi, Vol. 29, Kitabulfaiaiz, page 137,
it is pointed out that payment of debts, has priority
over bequests and wills.
In the administration of the
estate of a deceased Muslim the rule laid down by
early text writers and Fatwas, such as Fatwa-eAlamgiri, is that in the first instance the funeral expenses of the deceased should be paid out of the estate
and that having been done, the estate should be divided
between the legatees and the heirs after payment of
the debts due from him.
No priority has been indicated in respect of a dower debt of a widow over other
• unsecured creditors even if she has taken possession of·
her husband's estate after his death.
It was said that the nature of the widow's claim for
dower is such that it amounts to a lien on the husband's
estate.
The claim for lien is based on the assumption
that the dower debt is consideration for the marriage
;i.nd is not merely a voluntary debt incurred due to the·
.•
'
,\ , '
S.C.R.
SUPREME COURT REPORTS
75j
respect to the wife. According to Hamilton's Hedaya
rn50
(1870 Edn., page 44), the leading text book on Hanafi
d
d.
Kapore Chand
law, if a person specifies a
ower of ten or more 1ams
v.
and should afterwards consummate his marriage, or be Kadar Unni••
removed by death, his wife in either case can claim Begum .t othe ...
the whole of the dower specified, because by consum-
--
mation her claim for dower becomes absolute. The Khaliluszaman J.
dower debt becomes her property and it devolves on
her heirs and has to be paid out of the estate of the
husband. It has been described as a debt upon the
husband to be paid out of his estate. The dower of a
Muslim woman is a settlement in her favour made
prior to the marriage contract and is similar to the
donatio propter nuptias of the Romans but is of such
an obligatory nature that if it is not mentioned before
or at the time of the marriage, it is presumed to exist
to the extent of a proper dower amount. Among the
Hebrews the dower settled on a wife was for her use
after the termination of marriage and among the Jews
marriages without similar consideration were invalid.
As pointed out by Mr. Ameer Ali in his book on
Muhammadan Law, the custom originated in ancient
times with the payments made by husbands to their
wives as a means for their support and as a protection
against the arbitrary exercise of the power of divorce.
The Muslim concept of dower has no reference to the
price that under some systems of law was paid to the
father of the bride when she was given in marriage.
On the other hand, it is considered a debt with consideration (for the submission of her person by the
wife).
The result of the above discussion is that dower
is purely in the nature of a marriage settlement and
is for consideration. It is a claim arising out of contract
by the husband and as such has preference to be-
. q nests and inheritance, but on no principle of
.Muhammadan Law it can have priority over other
contractual debts. In our view, therefore, a dower
· debt cannot be given any priority over other debts on
any equitable consideration or on the ground that
there is something inherent in its very nature which
entitles it to priority.
'
752
SUPREME COURT REPORTS
[1950}
1950
It is now convenient to examine the decided cases
on this subject. In Ameer Ammal v. SankaraKa.pore Chand
v.
narayanan Chetty (1) a Bench of the Madras High
Kadar Unni•a Court held that a claim for unpaid dower constitutes a
Begum & Others. debt payable pari passu with the demands of other
--
creditors and is not a preferential charge on the
KhaliluuamanJ.estate.
InMaina Bibi v. Chaudh1·i Vakil Ahmad(')
it was held that where the widow is not in the position
of a secured creditor and is otherwise in possession of
the husband's estate with the consent of the heirs, she
is entitled to retain possession of it until her dower
debt is satisfied. Their Lordships observed that it
was not necessary to say whether the right of the
widow in possession is a lien in the strict sense of the
term. Whatever the right may be called, it appears
to be founded on the power of a 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. This
decision does not place the widow on a higher footing
than any other creditor.
As against the heirs all
creditors are to be paid in priority before the estate
can be distributed.
In Meer Meher Ally v. Mst.
A.manee (') it was held that the lien of the widow over
the property in her possession is not a lien in the
ordinary legal sense of the term and that a claim for
dower is in the same position as that of any other
ordinary creditor and ranks pari passu with them and
like other debts ha5 to be paid before the heirs are
entitled to take anything.
In M aina Bibi v. W asi
Ahmad(') it was held that she has no right of possession against the creditors, not being a secured creditor
herself.
At page 547 the following observations
occur:-
"she cannot set up any such right of possession
against creditors claiming to have the debts owing to
them from the husband satisfied out of the estate.
She is not a secured creditor ; her claim for her dower
(!1 I.L.B. 25 M•d. 658.
121 52 LA. 145.
'
13) 11 w .R. 212.
141 I.L.R. 41 All. 5~.8.
. '
S.C.R.
SUPREME COURT REPORTS
753
debt ranks equally with the claims of other creditors
t95o
of her husband."
Kapore Chand
In Hamira Bibi v. Zubaida Bibi (') it was observed
"'
that dower ranks as a debt and the wife is entitled Kada• unni••
along with the other creditors to have it satisfied on B'gum .t Oth•ro .
the death of the husband out of his estate.
Her right,
. --
however, is no greater than that of any other un- Khal.ZuzMman J.
secured creditor.
Qua the heirs she has a creditor's
lien.
In Imtiaz Begum v. Abdul Karim Khan(') the
same view was expressed. In para. 295 Mr. Mulla in
his book on Muhammadan Law has adopted the view
that dower ranks as a debt and that the widow is
entitled along with other creditors to have it satisfied
out of the estate and that her right is not greater than
that of any other creditor. The learned counsel 'for
the respondent relied on the decision in Kulsum Bibi
v. Shiam Sunder Lal ('), in which it was held that
a widow in possession of her husband's estate is
entitled as against the other heirs of her husband ;:and
as against the -creditors to retain possession until her
dower is satisfied.
The same view had been taken
earlier in Mst. Ghafooran v. Ram Chandra Das(') by
a single Judge.
It was said that her possession
could not be disturbed till her dower debt was satisfied.
In MohamedTurabuddin v. Yasin Begum(') a
Bench of the Hyderabad High Court held that the
claim of a widow for dower was in1the nature of a
secured debt. There was no other creditor in that
case which arose between the heirs and the widow.
However, in W ahidunnissa Begum v. Yasin Begum (')
it was pointed out that the claim of the widow for
dower does not create any interest or charge on the
property and that the position of a widow is not only
that of a creditor where her dower remains unpaid but
also of an heir.
The result of the authorities is that excepting the
two Allahabad decisions mentioned above and a
decision of the Hyderabad High Court. the consensus
/Jl A.LR. 1916 P.O. 46.
(2) A.I.R. 1930 All. 881.
\3/ A.I,R, 1936 All. 600.
14) A.I.R. 1934 All. 168.
(5) 17 D.L,R. 224.
(6/ 32 D.L.R. 421.
•
754
SUPREME COURT REPORTS
[ 1950]
\950
of authority is against the proposition that a widow
as an unsecured creditor has any priority over the
K•P
0
" Chand other unsecured creditors of her husband. In our
v.
K".d"' u""'"' opinion, the above mentioned two Allahabad decisions
B•~um .t Oth"'· do not lay down the law correctly on this point and
the rule has been correctly laid down in
Ameer
Kha.l•lus.oman "· Ammal v. Sankaranarayanan Chetty ( 1).
There is
nothing repugnant or inequitable according to the
principles of Muhammadan Law in the estate of a
deceased Muslim being rateably distributed between
the unsecured creditors.
For the reasons given above we hold that the
objection raised by the widow had no substance in it
and the executing court should have directed the property to be sold and the sale proceeds distributed
rateably amongst the decreeholders and the widow.
In the result we allow this appeal, set aside the judgments of the two courts below and direct the executing court to proceed with the execution in accordance
with the observations made herein.
In the circumstances we will make no order as to costs of these
proceedings.
Appeal allowed.
1 9~0
f!N THE SUPREME COURT OF INDIA (HYDERABAD).]
Oct. JR.
NARHARI AND OTHERS
v.
SHANKAR AND OTHERS.
[MEHR CHAND MAHAJAN, R. S. NAIK and
KHALILUZZAMAN JJ.J
Res iudicata-Severai a.ppeals arising out of sam' suit-Appeal
disposed of by same judgment-Separate decrees drawn "p-Appeal
from, orie decree only-Maintainability-Res judicata-Limitation
Act, 1908, s. 5-Extension of time-Sufficient cause-Conflict of
decisions .
..4. instituted a. suit for possession of two-thirrls share in an
estate against B and 0 who cloimed a one-third share each in it.
The suit was decreed by the trial court. B ant! 0 preferred
(I) I.L.R. 25 Mad. 658.