Judgement Consolidated Appeals from two decrees of the High Court (August 11, 1910) varying two decrees of the Subordinate Judge of Gorakhpur (September 15, 1906). The first respondent, defendant in both suits, was the widow of Inayat Ullah, who died in 1892. The suits were instituted in 1906 by the other heirs of Inayat Ullah to recover their shares in the estate, in the possession of which the first respondent had been allowed to remain in exercise of her lien for dower. The plaintiffs alleged that the dower had been satisfied out of the profits. The sole question was whether in accounting for the profits of the estate the widow was entitled to interest, claimed at 6 per cent., upon her dower debt. The facts are stated in the judgment of their Lordships. The Subordinate Judge framed several issues, of which the following only were material to the appeal (8.) According to law and custom, is interest allowable upon dower debt ? (9.) Is the defendant entitled to any, and what, damages by reason of non- payment of her dower debt ? The two suits were tried together. The Subordinate Judge held that the defendant was entitled to the interest claimed, and found that the net annual income received by her from the estate was less than the annual amount of interest due to her. As the plaintiffs had not offered to pay the whole of the dower debt, he dismissed the suits. The plaintiffs in both suits appealed to the High Court, and the appeals were heard together by Sir John Stanley C. J., Banerji J., and Karamat Husain J. The last named learned judge in delivering the leading judgment held that the question of the payment of interest was not one regarding " marriage," and that consequently Mahomedan law was not made applicable by Act XII. of 1887, s. 37, sub-s. 1 ; that the dower being a debt, the matter was not one within s. 37, sub-s. 2, of that Act, namely, a matter as to which no law was applicable and which had to be determined solely " according to justice, equity and good conscience," though, if it were, he deemed it unjust and inequitable that a widow should be held liable to account for the profits of the estate without being entitled to a reasonable rate of interest upon the dower. After considering the authorities, he held that the preponderance was in favour of allowing interest. On the further question whether the plaintiffs were entitled to recover their respective shares of the estate on payment of a proportionate part of the dower debt, the learned judge held that it was reasonable to direct that they should do so. The learned Chief Justice and Banerji J. delivered judgments concurring with that of Karamat Husain J. It was accordingly decreed that the decrees of the Subordinate Judge be set aside and decrees passed for possession provided that the respective plaintiffs paid the amounts named in the decrees within six months, but that in default of payment by any of the plaintiffs his suit should be dismissed. The appeal is reported at I. L. R. 33 Allah. 182. 1916. May 29, 30 ; June 1, 2. Sir Erle Richards, K.C., and Dube, for the appellants. Those who claim interest upon a debt must show that they are entitled to it either by contract or by law. There was no agreement to pay interest, and the appellants contend (1.) that the matter has to be determined by Mahomedan law, under which interest is not recoverable, and (2.) that the case is not within the Interest Act (XXXII. of 1839). Under Act XII. of 1887, s. 37, sub-s. 1, Mahomedan law is to be applied in any question between Mahomedans as to " marriage." That word includes dower, as appears from a comparison of the Act with the Civil Suits Acts of other provinces. The lien is recognized solely because dower is part of the law of marriage. The payment of interest is contrary to the precepts of Mahomedan law. The widows lien in respect of her dower is on the same footing in Mahomedan law as that of any other creditor who has obtained possession as security. It extends only to the principal and to well-recognized expenses of management; as soon as those are discharged out of the receipts it ceases Macnaghtens Principles of Mahomedan Law, 1897 ed., ch. 11, art. 16, p. 74; Baillies Digest, 1875 ed., pp. 776, 781, 801, 802; Hamiltons Hedaya, vol. 4, bk. 48, p. 199. The Mahomedan law against interest is not abrogated by the Usury Act (XXVIII. of 1855). The view of Phear J. to the contrary in Mia Khan v. Bibi Bibijan (( 1870) 5 Beng. 11, art. 16, p. 74; Baillies Digest, 1875 ed., pp. 776, 781, 801, 802; Hamiltons Hedaya, vol. 4, bk. 48, p. 199. The Mahomedan law against interest is not abrogated by the Usury Act (XXVIII. of 1855). The view of Phear J. to the contrary in Mia Khan v. Bibi Bibijan (( 1870) 5 Beng. L. R. 500.) is opposed to that of Peacock C. J. in Ram, Lal Mookerjee v. Haran Chandra Dhar. (( 1869) 3 Beng. L. R. (O.C.) 130, 135.) Lien for dower has been dealt with by the Board in three decisions, but no question as to interest was raised Ameer-oon-nissa v. Moorad-oon-nissa (( 1855) 6 Moo. Ind. Ap. 211.); Nawab Mahomed Ameenoodeen v. Moozuffur Hossein (( 1870) 5 Beng. L. R. 570.); Beebee Bachun v. Sheikh Hamid Hossein. (( 1871) 14 Moo. Ind. Ap. 377.) The unreported cases referred to in the judgment in the High Court support the appellants. The Interest Act (XXXII. of 1839) does not apply since the dower was not payable under an instrument in writing. Interest cannot be recovered as damages except where that Act applies London, Chatham and Dover Ry. Co. v. South Eastern Ry. Co. ([ 1893] A. C. 429.); Juggomohun v. Kaisreechund. (( 1862) 9 Moo. Ind. Ap. 256.) The rules of equity as applied in England to a charge upon land have no application to this case, which depends upon Mahomedan law. Th e result of the Indian authorities is that interest cannot be allowed upon money lent in India unless it appears from the bond that it was the intention of the parties that interest should be payable Mansab Ali v. Gulab Chand. (( 1887) I. L. R. 10 Allah. 85, 90.) Interest upon dower was allowed in Soorma Khatoon v. Attaf-oon-nissa Khatoon (( 1863) 2 Hay. 210.) and in Hubeeb-oon-nissa Khatoon v. Shumsoodeen Ahmed (S. D. A. Nov. 29, 1860, p. 311.); but it was allowed apparently under the Interest Act; in the latter case from the date of suit only, the plaint being treated as a demand under the Act. Woomatool Fatima Begum v. Meerunmun-nissa Khanum (9 Suth. W. R. 318.) was wrongly decided. De Gruyther, K.C., and Abdul Majid, for the respondents. Prior to British rule Moslem civil tribunals in Bengal recognized loans at interest among Mahomedans and were not bound by texts prevalent at Baghdad. Woomatool Fatima Begum v. Meerunmun-nissa Khanum (9 Suth. W. R. 318.) was wrongly decided. De Gruyther, K.C., and Abdul Majid, for the respondents. Prior to British rule Moslem civil tribunals in Bengal recognized loans at interest among Mahomedans and were not bound by texts prevalent at Baghdad. Anglo-Mahomedan law has consistently treated the Mahomedan prohibition against taking interest as a moral precept and not as legally enforceable Mia Khan v. Bibi Bibijan (5 Beng. L. R. 500.); Wilsons Anglo-Mahomedan law, 4th ed., p. 28. There is no text in Mahomedan law books which makes a widow liable for mesne profits, or which provides for an account; accounting is a creation of English law, and should be ordered according to equitable principles. Mahomedan law recognizes equitable principles and does not preclude the Court from allowing a widow compensation for her loss of interest upon the unpaid dower debt. The decision in Woomatool Fatima Begum v. Meerunmun-nissa Khanum (9 Suth. W. R. 318.) is directly in the respondents favour. That decision was followed in Sahebjan Bewa v. Ansaruddin (( 1911) I. L. R. 38 Calc. 475, 481.), and there is no reported authority to the contrary. Interest upon dower debt was allowed in Soorma Khatoon v. Attaf-oon-nissa Khatoon (( 1863) 2 Hay. 210.) and in Hubeeb-oon-nissa Khatoon v. Shumsoodeen Ahmed (S. D. A. Nov. 29, 1860, p. 311.); it does not appear that it was allowed under the Interest Act. The matter is one not provided for by Mahomedan law, and under Act XII. of 1887, s. 37, sub-s. 2, the Court should act according to justice, equity, and good conscience Mullick Abdool Guffour v. Muleka. (( 1884) I. L. R. 10 Calc. 1112.) Dube replied. Under Mahomedan law a creditor is not entitled to any advantage for forbearing to sue Baillies Digest, 1875 ed., p. 781. Accounting for mesne profits by a pawnee creditor was well known to Mahomedan law; the Hedaya provides for it in terms. A widow is liable to account for all her receipts except expenses of maintaining the property Ramzan Ali v. Ashgari (( 1910) I. L. R. 32 Allah. 563.); Ahmed Hossein v. Khodeja. (( 1868) 10 Suth. W. R. 369.) Aug. 1. The judgment of their Lordships was delivered by LORD PARKER OF WADDINGTON. A widow is liable to account for all her receipts except expenses of maintaining the property Ramzan Ali v. Ashgari (( 1910) I. L. R. 32 Allah. 563.); Ahmed Hossein v. Khodeja. (( 1868) 10 Suth. W. R. 369.) Aug. 1. The judgment of their Lordships was delivered by LORD PARKER OF WADDINGTON. A short statement of the facts which have given rise to this litigation will explain the point for determination involved in these consolidated appeals. One Shaikh Inayat Ullah, a Mahomedan inhabitant of the district of Gorakhpur, in the United Provinces of India, died in March, 1892, leaving him surviving a widow and daughter, named respectively Zubaida Bibi and Najm-un-nisa ; a sister, Hamira Bibi; and two brothers, Khadim Hossain and Ihsan Ullah. All these persons became entitled under the Sunni law, to which Inayat Ullah was subject, to certain specific shares in his estate. Besides the widows share of one-eighth, Zubaida was entitled to her unpaid dower. This has been found in a previous proceeding to have amounted to the large sum of one lakh of rupees. The other heirs of Inayat Ullah, not being in a position apparently to pay this sum without alienating at least a considerable part of the estate, allowed the widow to take or remain in possession of the whole to satisfy her claim out of the rents and issues of the landed property. It is not clear whether the widow was let into possession in the lifetime of Inayat Ullah or after his death. But it is not disputed that since 1892 Zubaida has been in possession. In 1902 the other heirs of Inayat Ullah brought a suit against her to recover possession of their shares. Their suit was dismissed on the ground that it was misconceived inasmuch as it was not a suit for the purpose of taking accounts, and thus ascertaining what portion of the dower debt was then unsatisfied. The present suits were instituted with that object on March 15, 1906, in the Court of the Subordinate Judge of Gorakhpur, one by Hamira Bibi and the other by the widow and sons of Khadim Hossain, who had died either before or after the suit of 1902. The present suits were instituted with that object on March 15, 1906, in the Court of the Subordinate Judge of Gorakhpur, one by Hamira Bibi and the other by the widow and sons of Khadim Hossain, who had died either before or after the suit of 1902. The reliefs prayed for in both suits were the same, namely, (a) for the taking of accounts ; (b) for decree to plaintiffs of their respective shares in case the dower debt was found to be discharged ; and (c) for an award to the plaintiffs of any sum found to have been received by her in excess of her dower. Zubaida in her defence among other pleas set up a claim for interest on her unpaid dower ; she alleged that the income of the property was less than the intere3t she claimed ; that, consequently, the debt was still unsatisfied, and that the plaintiffs were accordingly not entitled to recover possession of their shares in Inayat Ullahs estate. The Subordinate Judge, who tried the case in the first instance, considered the defendant was entitled to interest at 6 per cent, per annum on her dower ; that the interest thus calculated exceeded the annual net income from the estate, and that, therefore, it was clear no portion of the debt was discharged. In the result he dismissed both suits. On appeal to the High Court at Allahabad, the learned judges took the same view as to the right of the widow, Zubaida, to receive interest; but they varied the decrees of the Court of first instance with regard to the total dismissal of the suits ; they made a declaration that the plaintiffs should recover possession of their respective shares in the estate provided they paid to the defendant their quota of the dower debt proportionate to such shares, which quota the learned judges specified. From these decrees of the Allahabad High Court the plaintiffs have appealed to His Majesty in Council, and the sole question for determination is whether the defendant Zubaida is entitled to any interest or compensation in respect of her dower unpaid at the time of Inayat Ullahs death. The case has been elaborately argued on both sides and a large number of authorities have been cited. The case has been elaborately argued on both sides and a large number of authorities have been cited. On behalf of the plaintiffs it has been argued with considerable force that the Mussulman law prohibits usury and usurious dealings between Moslems ; that dower is a liability springing under the provisions of that law from the status of marriage ; and that, therefore, all incidents and rights connected therewith must be subject to the Mussulman law. It was further contended that the Mahomedan widows lien on the husbands estate for unpaid dower is the only creditors lien which has been recognized and maintained intact by British Courts of justice, and that it ought not to be extended beyond what the Mussulman law itself permits by allowing interest when it is not contracted for. On the other side it is argued that the Mahomedan law prohibiting usury has been repealed in India by Act XXVIII. of 1855, and that consequently there is no bar to Mussulmans receiving or paying interest, and that the practice of receiving interest is common among them both in India and other countries. It is further urged that, in any event, the widow is entitled to some interest by way of damages for non-payment of dower at the due time. In the view their Lordships take of the case it is unnecessary in their opinion to examine much of the argument addressed to the Board or to discuss the numerous cases cited at the Bar. There is a conflict of judicial opinion in India on the question whether the Mussulman rule relating to usury was or was not abrogated by Act XXVIII. of 1855. Sir Barnes Peacock C.J., sitting with Macpherson J.? held in the case of Ram Lal Mookerjee v. Haran Chandra Dhar (3 Beng. L. R. (O.C.) 130.) that it was not. " Hindu law," he said, " did certainly as between Hindus restrict the rate of interest to be charged ; and I do not think that Act XXVIII. of 1855 was ever intended to repeal the Hindu or Mahomedan law as to interest." Then, after reciting the preamble of the Act, he added as follows " That Act" (meaning Act XXVIII. of 1855 was ever intended to repeal the Hindu or Mahomedan law as to interest." Then, after reciting the preamble of the Act, he added as follows " That Act" (meaning Act XXVIII. of 1855) " did no more than repeal the various Regulations and Acts which the English Government of India had passed on the subject of usury." In a later case, Mia Khan v. Bibi Bibijan (5 Beng. L. R. 500.), Phear J., sitting with Markby J., took a different view. In the ordinary course, on this difference of opinion arising between two Division Benches of the same Court, the case should have been referred to a Full Bench. But Phear J. did not take that course and decided the point differently, holding that the Act of 1855 had abrogated the Mussulman law prohibiting usury. Their Lordships do not think it necessary to decide on the present occasion which view is right, nor do they think that Act XXXII. of 1839 has any application. Dower is an essential incident under the Mussulman law to the status of marriage; to such an extent this is so that when it is unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation ; but the law allows its division into two parts, one of which is called " prompt," payable before the wife can be called upon to enter the conjugal domicil; the other " deferred," payable on the dissolution of the contract by the death of either of the parties or by divorce. Naturally the idea of payment of interest on the deferred portion of the dower does not enter into the conception of the parties. But the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of 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 widows lien for dower, and this is the only creditors lien of the Mussulman law which has received recognition in the British Indian Courts and at this Board. When a widow is allowed to take possession of her husbands 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 Mussulman 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 Mussulman system, but are in fact often referred to and invoked in the adjudication of cases. In the case of Woomatool Fatima Begum v. Meerunmun-nissa Khanum (9 Suth. W. R. 318.) the plaintiff, who had held possession of her husbands estate under a lien for dower, was dispossessed by a decree of the Court. She then sued one of the heirs for a proportionate amount of her dower. Among other questions raised, the defendant claimed that the plaintiff must account for mesne profits during the period she held possession. She then sued one of the heirs for a proportionate amount of her dower. Among other questions raised, the defendant claimed that the plaintiff must account for mesne profits during the period she held possession. Sir Barnes Peacock C. J., sitting with Jackson and Macpherson JJ., after remarking that the " plaintiff does not ask to receive interest upon her dower, but she asks that she may not be compelled to account for the profits of the land during the term she held it in lie a of her dower," discussed various considerations which led him to think that it would be inequitable to make her account for the profits, except on the terms of allowing her reasonable interest on her dower debt. The annual rents and profits being less than such reasonable interest, the claim for mesne profits was disallowed. Their Lordships think that this was in accordance both with sound sense and with law. In the present case the Courts in India have allowed the defendant, on taking her accounts, 6 per cent, per annum, by way of equitable compensation. It was not contended that, if interest by way of compensation were allowed at all, this rate was too high under the circumstances. The contention was that no interest by way of compensation could be allowed at all. Their Lordships are therefore of opinion that this appeal fails and should be dismissed with costs, and they will humbly advise His Majesty accordingly.