Thirdly, the wife should have obtained the possession of husband’s properties with his consent. The consent of the husband may be express or implied, but it must be a free consent. Where a wife has obtained possession by force or fraud, it is not a lawful possession and after the death of her husband she is not entitled to retain it in lieu of her unpaid dower.
However, regarding the consent of husband’s legal heirs for obtaining possession, the opinions of the courts are different. According to Calcutta, Patna and Allahabad High Courts, an express or implied consent of the husband and his legal heirs is necessary for a lawful possession.
On the other hand, according to Bombay and Madras High Courts, consent of legal heirs is not necessary. According to Tyabji question of consent of the husband or his heirs is not material because the possession must have been obtained without force or fraud, and once it has been so obtained, it cannot be said that the husband or his heirs have not impliedly consented to it. It is therefore, submitted, that the very fact that widow possessed the properties without force, means that husband and his heirs must have impliedly consented to it.
(ii) Only Possessory Right:
The widow’s right of retention is simply a possessory right. It does not give any title or right of ownership to the widow over the property possessed. When the widow is in possession of certain properties, her only right in respect of those properties is to retain possession against the legal heirs of the husband. The ownership of the properties vests in the husband’s legal heirs, including her, but possession is with the widow.
The possession remains with her only till her dower debt is not satisfied by such legal heirs. The widow’s right of retention is neither a mortgage nor lien. As a matter of fact, Muslim law gives this right to the widow only for effective realisation of her unpaid dower from the legal heirs of her deceased husband.
(iii) Payment of Dower from Income of Property:
The property which a widow retains in lieu of her unpaid dower is owned by the legal heirs of her husband. Therefore, the income or benefit arising out of the property also belongs to those legal heirs.
However, the widow who retains possession of that property can take the usufruct or the benefits. But the benefits of the property which a widow takes would be regarded as contribution for the satisfaction of her unpaid dower.
For example, suppose the unpaid dower is Rs. 20,000 and the annual income of the property possessed is Rs. 1,000. In this case, the usufruct or income of Rs. 1,000 per year which the widow derives from the property say, for ten years, would reduce the unpaid dower to Rs. 10,000 only. In twenty years the total unpaid dower would be satisfied from the income of the property.
The widow is entitled to claim also the interest for which she may take some more income of the property. But as soon as her dower, including interest, is satisfied she cannot continue the possession and she will have to release the property in favour of the legal heirs.
The widow, who is in possession of the husband’s property in lieu of unpaid dower, must keep an accurate account of all the properties possessed by her. The expenses, if any, in preserving that property and also the periodical income out of that property must also are properly maintained by her. As she has retained a property in which legal heirs have absolute interest (ownership) she is bound to furnish an account of all the income, rents or profits to such legal heirs.
(iv) Property is Non-transferable:
The property in possession of the widow on lieu of unpaid dower cannot be transferred by her. As discussed in the preceding lines, the widow’s right to retain the property is simply a possessory right; she does not become the owner of that property.
Since she is not the owner, she cannot transfer the property. Any such transfer will be void and the transferee will not get any title/or interest in the property. Therefore, if a widow wants to satisfy her dower not out of the income (because that may take time) but by selling the property, she cannot do so as she has no Authority to sell or otherwise transfer the property. Maina Bibi v. Chaudhri Vakil Ahmad, is a leading case on this point. The facts of this case are given below:
Muin Uddin and Maina Bibi were lawfully married husband and wife. Upon the death of Muin Uddin in 1890, Maina Bibi retained certain immovable properties of her deceased husband in heu of her unpaid dower. No payment of her dower was made by the legal heirs of the husband including Vakil Ahmad, and she continued her possession.
In 1907, Maina Bibi, the widow, made a gift of those properties and also gave possession to the donees. After this, Vakil Ahmad and other heirs filed the present suit for getting possession over the properties on the ground that the gift was void because during retention widow had no right to transfer the properties.
It was held by the Privy Council that a widow who is in possession of her husband’s estate in lieu of unpaid dower is not owner of the properties. The only right with respect to the properties is the right to continue to hold the possession, till her dower is not paid by the heirs. The court further observed that failure of the payment of dower by the heirs would not make her an absolute owner of the immovable property of which she had been in possession.
The non-payment also does not confer any interest in the properties retained nor any right to transfer it. The result was that the gift was held to be void and the possession was taken from the donees. It may be concluded therefore, that any kind of transfer of the retained property, whether it is sale, gift or exchange etc. is void and cannot take effect.
(v) Once Possession is Lost, it is lost For Ever:
In a void transfer of property the transferee gets nothing and if in furtherance of such transfer possession of the property is also delivered to the transferee, it reverts back to the transferor. But under Muslim law, if the widow transfers and delivers the possession of the property retained, the possession does not come back to her; it goes to the legal heirs of the husband according to their respective shares.
In other words, if the widow has parted with the possession (the only right with which she can realise dower from legal heirs) she cannot resume the same. Once the possession is lost, it is lost forever.
In Maina Bibi’s case, the Privy Council observed that by giving up the possession in the land the widow had lost her right to hold the possession. The result is, therefore, that in such a case the heirs are entitled to get the possession in their respective shares without paying the amount of dower. In this manner, this method of enforcing the claim of unpaid dower is forfeited forever.
(vi) Transferability of the Right of Retention:
‘Right of retention’ in lieu of unpaid dower is an exclusive right of a widow and this right is available to her only because her dower remains unpaid. That is to say, the right to retain the property is her personal right as it is given to her because of her special personality (that she is widow of a deceased husband who could not pay her dower during his life). As such, this right cannot be separated from her personality and transferred to anyone else. Accordingly, the Patna High Court has held that the right of retention is not transferable.
But a different view has been taken by other High Courts of India. According to Allahabad, Mysore and Andhra Pradesh High Courts, the right to hold the property being a proprietary right which is owned by her; it can be transferred by the widow.
Thus, in so far as the transferability of the ‘right of retention’ is concerned, the opinion of the courts is divided. There is no certain law on this point. However, it is submitted that considering the observations made by the Supreme Court in Kapore Chand v. Kadar Unnissa, the view taken by Patna High Court is correct i.e. the right of retention is not transferable.
(vii) Heritability of the Right of Retention:
The ‘right of retention’ can be inherited by the legal heirs of the widow provided her own retention was lawful and she died during such retention. Where a widow has retained certain properties in lieu of unpaid dower, but dies during such retention, her legal heirs are entitled to be substituted in her place. They hold the property in the same manner as the widow had held.
But the heirs of the widow can inherit the possession only where the widow herself had held the property and dies during such possession. If the widow herself could not possess the properties during her life, her heirs are not entitled to do the same after her death. In Tahirunnissa v. Nawab Hasan., a widow’ had lawfully retained certain properties of her deceased husband in lieu of unpaid dower. The widow died during retention, leaving a duaghter as her heir.
It was held by the court that’ daughter was entitled to inherit the possession of those properties until her mother’s (deceased widow’s) dower debt was paid by other legal heirs. It may be concluded if the words of Mulla that “all that can now be said with certainty is that the right to hold possession is heritable”.