With the help of decided cases, write a critical note on the following: Widow's right of retention of husband's estate in lieu of dower. Whether this right is heritable or transferable, or both.

Question: With the help of decided cases, write a critical note on the following: Widow's right of retention of husband's estate in lieu of dower. Whether this right is heritable or transferable, or both. [HJS 1999]

Find the question and answer of Muslim Law only on Legal Bites. [With the help of decided cases, write a critical note on the following: Widow's right of retention of husband's estate in lieu of dower. Whether this right is heritable or transferable, or both.]

Answer

The Widow's right of retention of her deceased husband's estate in lieu of a dower is a legal right that is recognized in most legal systems. This right is intended to ensure that the widow has a sufficient means of support after her husband's death.

In terms of heritability, it is generally not considered to be heritable, meaning that it does not pass to the widow's descendants upon her death. This is because the right is intended to provide for the widow during her lifetime and not for her descendants.

In terms of transferability, it is also generally not considered to be transferable, meaning that it cannot be transferred or sold to another person. This is because the right is intended to provide for the widow during her lifetime and cannot be transferred to another person.

In the case of Beeju Bee v. Moorthuja Saheb, A. I. R 1920 Mad 666, it has been held that a Mohammedan widow whose dower remains unpaid is entitled to retain possession of the properties of her husband which she obtained lawfully, without force or fraud, but without the consent of or any agreement with the husband or his heirs as to the payment of her dower; nor can such properties be divided among the heirs until the dower debt is satisfied. Though the sale by the such widow to satisfy the dower debt is not binding on the other heirs of her husband, the vendee is entitled to retain possession of the property sold to him against the other heirs until the dower debt is satisfied.

That reference to the Full Bench was necessitated by the conflict of decisions as to whether the widow's right to hold possession is transferable as well as heritable. Abdur Rahim, C. J. after a detailed examination of the law on point observed that there is no express text of Mahomedan Law so far as one could see dealing with the question of whether the right of the widow in possession of her husband's property in lieu of her dower to retain such possession until the same is satisfied, is transferable at all or whether it is purely a personal right. But it was a well-settled law that a person in peaceable possession of the land as against everyone but the true owner has an interest capable of being inherited, devised or conveyed.

It is also worth noting that the right of retention may be subject to certain limitations or conditions, depending on the laws of the jurisdiction in question. For example, in some jurisdictions, the right may be limited to a certain percentage of the deceased husband's estate or may be subject to the payment of debts or other obligations.

In Aminuddin v. Ram Khelawan, AIR 1949 Pat 427 (L), it was observed that the right to hold possession does not give a widow any title to the property. The widow had, therefore, no right to alienate the property except to the extent of her own share and if the widow gives up possession she loses her right to remain in possession.

Thus, the Widow's right of retention of the husband's estate in lieu of dower is not heritable and not transferable as per the decided case laws and the right is intended to ensure that the widow has a sufficient means of support during her lifetime and not for her descendants.

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