Facts:
The case Kapore Chand vs Kadar Unnisa begum is a decisive case where a Muslim woman(widow) claims to have secured possession over the property of her deceased husband in a lieu of dower as against all unsecured creditors.

Kapore Chand is the appellant who has a money decree against one Mir Hamid Ali khan, the husband of the respondent Kadar Unnisa. On the execution of the decree, the property (house) of the deceased was attached. Now, his wife claims an objection that she has possession over the property on the basis of the outstanding dower and she could not be dispossessed until her claims were satisfied.

To this, the court accepts the objection by the respondent and it was ordered that the house be sold subject to the respondent’s claim. The decree-holder will be entitled to the surplus from the sale proceeds. Secondly, the court observed that the amount in the execution sale is not much to fetch house as against the amount due on dower. Therefore, the court decided that the dower has priority over all the debts incurred to other unsecured creditors and the respondent (widow) is similar to a secured creditor. 

Henceforth, this judgement by the high court is appealed in Supreme Court.

(** dower here is the part of deceased husband’s property provided to his widow, usually in the form of a life estate) 

Issue:

1. Whether the widow in possession of her husband’s property (house) in the light of her claim of dower with the consent of other heirs or otherwise is entitled to priority as against other unsecured creditors.
2. Whether widow is preferable in case of conditional will or contract.

Rule:

1. Tyabji’s Muhammadan law:  a) A widow by her lien does not have any priority over other creditors.
    

(b) Mehr (dower) has priority over other heirs’ claim to have the property distributed among themselves. 

1. According to Hanafi law, if a specified dower is fixed by the husband then the wife after his death can claim the whole dower specified.
2. The text in Surai-Nissa suggests the preference of dower over wills and inheritance but it is silent about the priority over debts. (similar in Mubsoot Sarkhasi, vol 29 and Kitabul Faiaiz page -137)
3. Ameer Ali in his book on Muhammadan law pointed out that in ancient times husbands use to pay their wives as support and security over their arbitrary exercise of the power of divorce.
4. Mr Mulla in his book on Muhammadan law has prompted the view that dower is considered as debt and it is equivalent along with all other creditors. There is no distinction about the dower of a widow being greater than any of the creditors.

Supreme Court analysed deliberate facts that there are no provisions to prioritise widow’s dower claims over unsecured creditors.

The Quranic texts as pointed out in Surai Nissa, proclaims that the husband should pay the claims of his wife but nowhere speaks about absolute protection as a secured creditor.

Here, the deceased husband has neither charged nor mortgaged the house in favour of the wife nor any of the creditors. If the house was in favour of the wife, there would have been no doubt over the secured possession. (As per rule 2 with respect to Hanafi law)

Prominently, Tyabji’s Muhammadan law points out that a widow by her lien does not have priority over other creditors and a dower has priority over other heirs claim. This rule is not affected by the mere issue that whether the widow is in possession of the house or not. In any way, unless the husband has placed his wife in a favourable position, her claim for dower is of similar rank as that of other unsecured creditors.

Moreover, it was said that the dower is the consideration paid by the husband due to marriage and is not a voluntary debt acquired by the husband. The concept of dower has no reference to the price paid to the bride’s father under some systems of law. The dower of a Muslim woman is a favour made to her prior to marriage which is somewhat obligatory in nature and is presumed to exist as a proper reasonable amount.

Basically, the dower is merely for settlement purposes between two parties. Muhammadan law provides no specific rule where it favours widow dower over unsecured creditors. In general, Quranic verses proclaims favourable and equal treatment.

Further, the judgement of the Supreme Court is provided with a number of cases that are either referred or disapproved.

Referred cases:
In Ameer Ammal v. Shankaranarayan Chetty, it was held by the bench of madras high court that a claim for dower (unpaid) is equivalent to debt incurred to unsecured creditors. There is no preferential basis to consider a widow with a dower claim to be a secured creditor.

Similarly, in Meer Meher Ally v. Mst. Amanee, Hamira bibi v. Zubeida bibi and Imitiaz begum v. Abdul Harim khan, it was held that the widow’s right is no greater than that of any other unsecured creditors. (As conferred by Mr Mulla in his book of Muhammadan law).

Predominantly addressing the major issue in the case, the bench went on to explain Maina Bibi v. Chaudhari Vakil Ahmad.

It was held that the widow who is not in the position of a secured creditor and otherwise holds possession on her husband’s estate with the consent of other heirs, then she is entitled to possession till her dower claim is satisfied. It was observed by Supreme Court that the right to possession of a widow as a security to a strict sense of the term is unnecessary to interpret. A widow can rightfully and legally hold the estate of her husband as a creditor as long as she and her dower are not satisfied but that does not put her in higher precedence as compared to other unsecured creditors. She is similarly ranked to other creditors.

(Similar view passed in Maina Bibi v. Wasi Ahmad)

On the other hand, some of the cases levelled by the respondent were disapproved.

In Kulsum bibi v Shiam sunder lal, it was held that the widow who is in possession of her deceased husband estate is entitled to hold his possession as against all other heirs and as against creditors till her claim of dower is satisfied.

Similarly, in Mst. ghafooran v. ram Chandra das and Mohamed Turabudin v Yasin, a widow was prioritised over other creditors and inferred as a secured creditor.

Critically interpreting case laws, consensual opinion was formed which gave equivalent rights to widows with dower debt and other unsecured creditors.

Kapore Chand v Kadar Unnisa begum brought forward an important interpretation regarding the distribution of equivalent rights among similarly placed creditors and widows. As mentioned earlier there are no provisions under Muhammadan law or under any Quranic texts which unequally favours widow as against other creditors.   

As per the analysis with respect to the issues mentioned, we can conclude that:

Issue 1: dower debt equivalent to debt incurred to creditors.

Issue 2: widow is dominant in case of contractual bond or will.

The court decided to take into consideration the rules laid down in Ameer Ammal v. Shankaranarayan Chetty and dismissed the case laws of Allahabad high court as cited by the respondent.

For all of the reasons mentioned above and analysing reasonable facts, it can be concluded that there is no substantial reasonable argument to allow widows to take grants of possession against unsecured creditors. Preferably, the decision was made on the basis of customs followed codified law and religious texts.

Henceforth, as a result, the appeal was allowed and the previous judgements were set aside. The executing court was directed to proceed with the execution in accordance with the observation made by the Supreme Court.
(Bench- Siddiqui Khaliluzzaman J:

• Mahajan, Mehr Chand
• Naik R.S) Civil Appeal No. 189 of 1950.

End-Notes:

1. Mulla Muhammadan law, Hanafi law(principles of Mohamedan law )
2.  Quran verses
3. Principles of Muhammadan law(Tyabji)

Case Laws:

1.  Ameer Ammal v. Sankaranarayana Chetty (I.L.R. 25 Mad 658),
2.  Meet Meher Ally v. Mst. Areanee (11 W.R. 212),
3. Maina Bibi v. Wasi Ahmad (I.L.R 41 All. 558)
4. Hamira Bibi v. Zubaida-Bibi (A.I.R. 1916 P.C. 46)
5. Imtiaz Begum v. Abdul Karim Khan (A.I.R. 1930 All. 881)
6. Kulsum Bibi v. Shiam Sunder Lal (A.I.R. 1936 All. 600),
7. Mst. Ghafooran v. Ram Chandra D a(sA.I.R. 1934 All. 168),
8. Mohamed Turabuddin v. Yasin Begum (17 D.L.R. 224)
9. Maina Bibi, v. Chaudhri Vakil Abroad

Written By: Jhalak Mishra

(2nd-year law student at Symbiosis law school, Nagpur)