JUDGMENT Bennet, J.
1. This is an appeal by the plaintiffs against a decree of the learned Subordinate Judge of Gorakhpur dismissing their suit for possession of certain property. The following pedigree is relevant:
Saiyid Fateh Ali, Deceased | _________________________________________________________________________ | | | | Saiyid Saiyid Saiyid Aulad Mt. Layeq Mukhtar Ali, Jawahir Ali, Ali, Bibi, daughter deceased, died in deceased, deceased, died on (alias) 1897-98. childless. 3rd February 1918. Bachi.
___________________ | | | by by Mt. Azizunnissa Bibi, deft. 1, wife.
2. The plaint set forth that the pro-iperty in question was owned by Saiyid Aulad Ali and that he died on 3rd February 1918 leaving defendant 1, Mt. Azizunnissa his widow and his son Saiyid Sajjad Ali as legal heirs entitled to 2 annas and 14 annas respectively of his estate. In the following year on 5th April. 1919, Saiyid Sajjad Ali died leaving a widow, defendant 2, Mt. Harja Bibi. It was stated in the plaint that Sajjad Ali entered into possession of the entire estate on the death of his father and it was not clearly specified who entered into possession on the death of Sajjad Ali. But it was stated in para. 8 of the plaint that defendants 1 and 2 were in possession on the date of the plaint on 14th September 1926. The claim of the plaintiffs arose through a sale deed of 22nd May 1919 in favour of the plaintiffs executed by defendants 3 to 5, Saiyid Ghaffar Ali, Muhammad Anis and Muhammad Dabir Ali, sons of Mukhtar Ali who died about the year 1897 or 1898. This sale deed was of a half share of these vendors. The suit was contested by defendants 1 and 2 and they alleged in para. 12 of their written statement that defendants 3 to 5 were certainly not the sons of Mukhtar Ali nor could they inherit the estate of Sajjad Ali. It was further alleged taht a 9 anna and 7-1-5 pie share in mauza Chak Jalal exclusively belonged to defendant 1, and this particular allegation is now admitted by the plaintiffs. In para. 17 it was set forth that out of the remainder of the property defendants 1 and 2 were in possession of some property in lieu of the dower debt, and in possession of some property by right of inheritance. If the plaintiffs have any rights, they have no right to take possession so long as as they have not paid the dower debt. The learned Subordinate Judge held that the plaintiffs had failed to prove that their vendors were legitimate sons of Muhtar Ali and he further held that in any case the defendants 1 and 2 were in possession of their husbands' properties in lieu of their dower debts. In the appeal before us these two points are in issue. It is to be noted that defendants 1 and 2 dissented from the pleading of para. 12 in the written statement and a month after their written statement on 7th March 1927 their counsel made a statement that defendants 3, 4 and 5 are sons of Saiyid Mukhtar Ali by a "Madkhula" or a kept woman.
3. There is a great deal of difference between the original pleading that defendants 3 to 5 were not the sons of Mukhtar Ali and the amended pleading that they were his sons by a kept woman. It is particularly to be noted that defendants 1 and 2 are members of the family and they must have been very well aware of all the circumstances. When therefore they denied that defendants 3 to 5 were the sons of Mukhtar Ali at all, they were making a statement which they knew to be absolutely false. At the outset therefore their case in defence is vitiated by the false statement which they have filed in regard to the paternity of these defendants 3 to 5. We shall first review the evidence on the record as regards the parentage of these three defendants. It is to be noted that these defendants are men of about fifty years of age and therefore it is difficult at this late date to produce direct evidence of the marriage which they alleged took place between their mother and Mukhtar Ali somewhere about the year 1870. No evidence is forthcoming directly of the marriage, nor could we expect such evidence. A witness for the plaintiff Ahmad Husain states that the heard Mukhtar saying that be had married Ghaffar's mother. This witness is 71 years old and is a retired Sub-Inspector. He states that Mukhtar Ali had another wife and that she had a daughter. This is admitted and this daughter Mt. Phundan has given evidence. He stated in cross-examination that the mother of Ghaffar was "Ghair brathri". But of course, among Muhammadans there is no legal bar to the marriage of a woman who though not of the same brathri is a Muhammadan. (His Lordship then discussed evidence and proceeded.) The weight of evidence certainly appears to us to be in favour of the plaintiffs on this point of the legitimacy of their vendors. The argument of learned Counsel for the respondents was that this evidence on the record could not be allowed under Muhammadan Law to prove the point in question.
4. The proposition laid down by learned Counsel was that to prove the legitimacy of defendants 3 to 5 there must under the Muhammadan Law either be an acknowledgement by the father that the sons were legitimate or there must be proof of the marriage. He further explained that by proof of the marriage he meant evidence that the marriage ceremony had been duly performed and he argues that the evidence on the record was not evidence which would be admissible for that purpose. We concede that there is no acknowledgment in the present case by the father that his sons were legitimate sons and therefore the plaintiffs cannot have recourse to that particular proposition of Muhammadan Law. But we have not been shown any ruling to the effect that evidence of the kind on the record is not admissible for the purpose of proving the marriage of Mt. Munna with Mukhtar Ali. For example, the statement in the evidence of Ahmad Husain that he heard Mukhtar Ali saying that he had married the mother of Ghaffar is a statement made by a deceased person Mukhtar Ali to the effect that there was a marriage between him and Mt. Munna. We are of opinion that such a statement by a deceased person is admissible in evidence for the purpose in question under the provisions of Section 32, Sub-section (5), of the Evidence Act as a statement as to marriage. We do not think that the doctrines of Muhammadan Law can be held to exclude evidence of this nature and we consider that the Evidence Act does apply in the present case. Section 2 of the Evidence Act, states:
On and from that day the following laws shall be repealed : (1) all rulea of evidence not contained in any Statute, Act or Regulation in force in any part of British India.
5. We might further refer to the definition of "Evidence" and of "Proved" in section 3, Evidence Act and it is clear that evidence permitted by the Evidence Act is evidence which can be used for the purpose of considering whether a fact is proved under this definition. learned Counsel took us at considerable length over a number of rulings such as Mt.L Fairutoll Butool v.
Hosenee Begum (1866) 11 MIA 194 (P C), Ghazanfar Ali Khan v. Kianiz Fatima (1910) 32 All 345, Ma Wun Di v. Makin (1908) 35 Cal 232, Habibur Rahman v. Altaf Ali AIR 1922 PC 159 and Khajah Hidayat Oollah v. Rai Jan Khanum (1841-46) 3 MIA 295 (PC). Having regard to the doctrine laid down in all these rulings we consider that the fact still remains that each case' must be decided on the evidence produced, in that case, and that what we have to consider is whether in the present case sufficient evidence has been tendered to prove that there was a marriage between Mukhtar Ali and Mt. Munna. We consider that in the present case the evidence is sufficient and we hold that defendants 3 to 5 are legitimate sons of Mukhtar Ali. The plaintiffs therefore have succeeded in our opinion In proving this portion of their case. Issue No. 2 in this case was whether the transfer in favour of the plaintiffs was farzi. The lower Court held that it was farzi on the ground that the1 sale consideration had not been proved. Ground of appeal No. 5 is that defendants 1 and 2 have no locus standi to challenge the consideration of the plaintiffs' sale deed. This doctrine of law is laid down by their Lordships of the Privy Council in Bhagwat Dayal Singh v. Debt Dayal Sahu (1908) 35 Cal 420. We consider that this ground of appeal is sound and we hold accordingly.
6. The next point which is necessary for the plaintiffs to prove is in regard to the possession of defendants 1 and 2. The plaint admits that these defendants are in possession. It is advanced in ground of Appeal No. 7 that this possession is not in lieu of their dower debts. The exact facts in this case as to what possession was obtained are not very clear but it is shown by a mutation order printed on page 52 that Mt. Hajra Bibi alone obtained possession on the death of her husband by this order of 18th September 1919. In that proceeding Azizunnissa put forward an old claim and asserted that the property was hers and did not belong to the deceased. It was not stated that she made any claim to hold the property in lieu of her dower debt. On page 55 there is the judgment of a suit No. 363 of 1920 brought by Mt. Azizunnissa against Mt. Hajra Bibi and others in which she claimed to recover a proportionate amount of her dower which amounted in all to Rupees 50,000. She obtained a decree for this amount from the Additional Subordinate Judge on 3rd January 1922. Before that decree was granted there was a partition suit instituted on 11th. January 1921 as is shown on page 53 between these two widows, defendant 1 and defendant 2. As the present plaint admits, a partition took place between these two widows and what is printed is an intermediate order. It is clear that when the partition suit was filed in 1921, both the widows, defendants 1 and 2. must have obtained possession and, as the plaint admits, they were in possession at the date of the plaint in 1926. Defendant 1 and defendant 2 each obtained a decree for their dower, in the case of defendant 1 the dower being Rs. 50,000 and in the case of defendant 2 the dower being Rs. 500. The decree for defendant 2 was granted in a suit brought by her in 1923 and defendants 3 to 5 were parties in each of these dower suits.
7. The plaintiffs therefore are also bound by these decisions and that the widows are entitled to decrees for these amounts of dower from the estates of their respective husbands. We now come to a point of law on which there is a considerable difference of legal opinion. It was advanced on behalf of defendants 1 and 2 that they were in possession in lieu of their dower debt. It is not shown that they took possession in lieu of their dower debt but it is shown that they are actually in possession and that the dower debt is still due to them. The difference of legal opinion has arisen on the point of whether for such a claim it is necessary or not that the consent of the heirs should be obtained when possession is taken by the widows. On the one hand it is laid down that the consent of the heirs is essential in the following rulings: Amantunnissa v.
Bashirunnissa (1895) 17 All 77, Muhammad Karim Ullah Khan v. Amani Begam (1895) 17 All 93, Hamira Bibi v. Zubaida Bibi AIR 1916 PC 46 and Sabur Bibi v. Ismail Shaikh AIR 1924 Cal 508. The contrary has been held, that the consent of the heirs is not essential, in Ramzan Ali Khan v. Asghari Begam (1910) 82 All 563, Maina Bibi v. Vakil Ahmad AIR 1925 PC 63, Mohammad Shoaib Khan v. Zaib Jahan Begam AIR 1927 All 850 and Beeja Bee alias Zu-laika Bee v. Moorkhiya Saheb AIR 1920 Mad 666). In Mt. Bebee Bachun v. Hamid Hossein (1870-72) 14 MIA 377 (PC) at p. 384 it is remarked as follows:
It is not necessary to say, whether this right of the widow in possession is a lien in the strict sense of the term, although no doubt the right is so stated in a judgment of the High Court in a ease of Ahmed Hoossein v. Mt. Kadeja (1868) 10 WR Civ 368. 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.
8. It is to be noted that the language used is "of which she has lawfully and without force or fraud obtained possession." The question is whether we should read in into this word "lawfully" the words "with the consent of the heirs." It is clear that a considerable extension is necessary of the word "lawfully" before it can bear such a meaning. In Hamira Bibi v. Zubaida Bibi AIR 1916 PC 46 their Lordships of the Privy Council on p. 588 (of 38 Alt.), remarked as follows:
But the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death o£ 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. This is called the widow's lien for dower, and this is the only creditor's lien of the Mussalman law which has received recognition in the British Indian Courts and at this Board. When a widow is allowed to take possession of her husband's estate in order to satisfy her dower debt with the income thereof, it is either on the basis of some definite understanding as to the conditions on which she should hold the property, or on no understanding. If there is an agreement, express or implied, that she should not be entitled to claim any sum in excess of her actual dower, she must abide by its terms. But where there is no such understanding, and a claim is made, as in the present case, the question arises whether, on equitable considerations, she should not be allowed some reasonable compensation, not only for the labour and responsibility imposed on her for the proper preservation and management of the estate, but also for forbearing to insist on her strict legal right to exact payment of her dower on the death of her husband. Their Lordships think that she is so entitled, and obviously compensation for forbearance to enforce a money payment is best calculated on the basis of an equitable rate of interest. This appears to be consistent with the chapter on "the duties (Adab) of the Kazi" in the principal works on Mussalman law, which clearly shows that the rules of equity and equitable considerations commonly recognized in the Courts of Chancery in England are not foreign to the Mussalman system, but are in fact often referred to and invoked in the adjudication of cases.
9. In this passage it is mentioned that the consent of the heirs is necessary; but it is to be noted that this was not exactly the point which was before their Lordships as the case was one on the point of whether or not the widow of Mahomedan, placed in possession of her husband's estate in lieu of her dower, was entitled when called upon by her husband's heirs to account for the rents and profits received by her during the period of her possession, to claim interest upon the amount of the dower : see p. 582 (of 38 All).
10. The ruling Maina Bibi v. Vakil Ahmad AIR 1925 P.C. 63 on p. 254 (of 47 All.), refers to Mt. p. 254 (of 47 All.), refers to Mt. Bebee Bachun v. Hamid Hossein (1870-72) 14 M.I.A. 377 (PC) and their Lordships stated on p. 255 (of 47 All.):
The possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower debt is paid is conferred upon her by the Mahomedan law.
11. There has been no discussion in the rulings of this Court of the meaning to be attached to pronouncement of their Lordships: see Hatnira Blbi v. Zubaida Bibi AIR 1916 PC 46 and Mohammad Shoaib Khan v. Zaib Jahan Begam AIR 1927 All 850. No reference was made in this latter case to the earlier rulings of this Court, Amanatunnissa v.
Bashirunnissa (1895) 17 All 77 and Muhammad Karim Ullah Khan v. Amani Begam (1895) 17 All 93. The meaning to be attached to the pronouncement of their Lordships of the Privy Council in Hamira Blbi v. Zubaida Bibi AIR 1916 PC46 has been considered by a Full Bench of the Madras High Court in Beeju Bee alias Zulaika v. Moorthiya Saheb AIR 1920 Mad 666 and it was there held that their Lordships of the Privy Council did not intend to lay down the rule that consent of the heirs was essential. The contrary has been held in Sabur Bibi v. Ismail Shaikh AIR 1924 Cal 508 by a Bench of the Calcutta High Court. We consider that all that is necessary for the widow to retain possession until her dower debt is paid is that she should obtain possession not by force or by fraud. She is in the position of a creditor and having obtained possession lawfully, she is entitled to hold possession until her dower debt is satisfied. If she has to depend on consent of heirs that consent she will seldom get, and the rule will become nugatory. We therefore agree with the interpretation of the Full Bench of the Madras High Court expressed in Beeju Bee v. Moorthiya Saheb AIR 1920 Mad 666. On this view of the law we hold that the plaintiffs can only obtain a decree for possession conditional on the payment by the plaintiffs of the proportionate amount of the share of dower due to defendants 1 and 2. That is ascertained by the following calculation:
The plaintiffs purchased half of the estate of their vendors, their vendors were entitled to 3/4 of the estate of Sajjad Ali, and Sajjad Ali was entitled to 7/8 of the estate of his father. The product of these three fractions 1/2 x 3/4 x 7/8 is 21/64. The plaintiffs therefore can only obtain possession on payment of 21/64th portion of Rs. 50,000 due as dower to defendant 1 and Rupees 500 due as dower to defendant 2. The plaintiffs therefore cannot execute their decree for the share of property which we award in list (A) 5 annas 3 pies unless they pay that amount of dower We also decree to the plaintiffs a 6 anna share in the property in list (B) subject to the payment to a proportionate share, that is, a 6 anna share or 24/64 of the dower of defendant 2, that is, Rs. 500. The distinction between list (A) and list (B) arises from the following facts. The plaint set forth the property in list (A) under the heading "Specification of the estate of Aulad Ali, deceased." That estate is liable for the dower debt of the two widows, defendant 1 and defendant 2. The plaint further set forth property in list (B) as property exclusively owned by Saiyid Sajjad Ali, deceased. Para. 8 of the plaint alluded to these lists (A) and (B) and para. 8 of the written statement printed on p. 12 stated that it was admitted that defendants 1 and 2 were in possession of the property entered in lists (A) and (B); the rest was not admitted. We understand this to be an admission of the description of the property in lists (A) and (B), and there was no dispute in the lower Court that these descriptions were correct. Accordingly the property in list (B) being property owned exclusively by Saiyid Sajjad Ali, is property which is not liable for the dower debt of defendant 1, his stepmother, but it is only liable for the dower debt amounting to Rs. 500 of his widow, defendant 2. We allow a period of six months within which the plaintiffs will have to pay the proportionate amounts of dower due to defendants 1 and 2; otherwise their suit will stand dismissed with costs. If the plaintiffs pay the amounts within the period required they will obtain proportionate costs in both Courts on the amount of their success and failure. It is to be noted that the share of 9 annas 7-1/5 pies in mauza Chak Jalal exclusively belongs to defendant 1 and this will be exempted from any property decreed to the plaintiffs.