2015 PLP 1770 (YLR)

ROOH-UL-AMIN KHAN, J.

This revision petition is directed against the judgment and decree dated 6-12-2012 of the learned trial Court and that of the learned Appellate Court dated 4-6-2013, whereby suit of Mst. Nasrin Begum plaintiff (respondent herein) filed against her husband Awal Zaman (petitioner herein) has concurrently been decreed by both the courts below in her favour.

2. I have given my anxious consideration to the respective submissions of the learned counsel for the parties and have gone through the record with their able assistance.

3. In the background of this unique controversy there is a second marriage of the petitioner with one Mst. Sakina Bibi, with the mutual consent and permission of his first wife i.e. the respondent on certain terms and conditions. Mst. Nasrin Begum, who is the first wife of petitioner Awal Zaman filed a suit against her husband/petitioner for declaration, perpetual, mandatory injunction, recovery of half share in his salary and pension emoluments and recovery Rs.70,000 allegedly incurred by her on the marriage of her daughters. As per averments in the plaint, her marriage with the petitioner was solemnized some 40/42 years back and from the wedlock, two sons and three daughters were born. It was 1994, when petitioner desired to contract 2nd marriage and his desire was acceded by his first wife i.e. respondent-wife subject to certain terms and conditions which were incorporated in agreement deed dated 15-1-1994, which is now the main bone of contention between them. According to the aforesaid agreement, the respondent-wife would be entitled to receive from the petitioner-husband half of his salary for the maintenance and education expenses of their children, half share in his pension and commutation, and half share in his agricultural property as well as houses, in case of their strained relation, in future. Consequent upon execution of the deed, the petitioner contracted 2nd marriage, and later on, he refused to honour the terms and conditions of the agreement, during which period, the respondent spent an amount of Rs.70,000 on the marriage of their daughters.

4. The petitioner contested the suit by filing written statement, raising therein, legal as well as factual objections. The suit was initially decreed by the learned trial Court against which the petitioner filed appeal which was allowed and the judgment and decree of the trial Court was set-aside and case was remanded back to the trial Court. After remand, Mst. Sakina Bibi, the second wife of the petitioner, was also arrayed in the panel of the defendants. Amended issues were framed and parties led their pro and contra evidence. On conclusion of trial, the suit of the respondent-wife was decreed, which decree was maintained by the learned Appellate Court by dismissing the appeal of the petitioner- husband.

5. The relation of the petitioner Awal Zaman and that of respondent Mst. Nasrin Begum, as husband and wife inter se has not been denied from either side. Thus, facts admitted need not be proved. Similarly, the factum of 2nd marriage of the petitioner with Mst. Sakina Bibi has also been admitted by the petitioner in his written statement. The parties are also not in dispute over the number of issues born from their wedlock. The petitioner-husband has only controverted the agreement deed executed on 15-1-1994 and the expenses of Rs.70,000 allegedly incurred by the respondent on the marriage of daughters of the parties, which according to the petitioner was borne by him and not by the respondent and that the aforesaid agreement is a fictitious and manipulated document.

6. To prove execution of the deed (Exh.PW.3/1), respondent examined one Shaista Khan as PW.1, who is marginal witness of the deed. According to him the deed was executed in his presence at the eve of 2nd marriage of petitioner Awal Zaman and Awal Zaman signed the same in his presence. In cross-examination of this witness the factum of execution of the deed on 15-1-1994 on the occasion of second marriage of the petitioner has been confirmed. Haji Shah Zaman Petition Writer who is scribe of the deed (Exh.PW.3/1) has been examined as PW.4. He testified about scribing of the deed by him and entry thereof in his register at S.No.39. Muhammad Ibrahim, advocate, who had attested the agreement deed Exh.PW.3/1, as notary public, verified his signature over the same to be correct and that it has been entered in his register against S.No.836, extract of which is Exh.PW.5/1. Respondent Mst. Nasrin Begum in support of her claim appeared as PW.3. She has reiterated the same facts averred in her plaint. All these witnesses have been subjected to cross-examination by the petitioner but nothing favourable could be extracted from them. Rather, from their testimonies, the execution of the deed inter se the parties, on the occasion of second marriage of the petitioner, has been proved. To further prove the income sources of the petitioner and his property, one Hussain Shaheed Pension Clerk from the District Account Officer has been examined, who deposed about receipt of Rs.496443 as commutation and Rs.85784 as GP fund by the petitioner. To this effect he exhibited his record as Exh.PW.2/1 and Exh.PW.2/2. Similarly, Patwari Halqa recorded his statement as PW.1, who produced revenue record Exh.PW.1/1 to Exh.PW.1/4, according to which the petitioner is owner to the extent of 07 Kanals and 1-1/2 marlas land. However, there is not an iota of evidence brought on record by the respondent to prove the expenditure of Rs.70,000 allegedly incurred by her on the marriage of their daughters.

7. In rebuttal, the petitioner himself appeared as DW.1. In his statement, he failed to prove payment of maintenance to his wife-respondent. Rather, it is admitted by him that after receipt of pension he and his second wife proceeded for performance of Hajj. He also admitted that he is residing with his second wife from the last three years. Existence of landed property and its ownership has also been admitted by him in his cross-examination. He has admitted transfer of some of his landed property in favour of his sons born from his second wife, during pendency of the suit. In light of the above evidence, the respondent has squarely proved the execution of the deed through cogent, coherent and confidence inspiring evidence hence, she is entitled to receive the property and other shares in the salary and pension of the petitioner as mentioned in the deed and the petitioner is bound by the terms and condition of the deed to fulfill his liability.

8. The argument of the learned counsel for the petitioner that the suit of the respondent is barred by law is misconceived because according to the terms and condition of the agreement executed in the year 1994, in case of strained relation between the wives, the respondent would be liable to claim the properties mentioned in the deed. It appears from the record that petitioner was maintaining the respondent till 2007 and their relations were cordial but after 2007, their relations became strained, thus, the cause of action accrued to the respondent in the year 2007 and the time for the purpose of limitation will be computed from the year 2007 and not from the year 2004.

9. Another limb of arguments of learned counsel for the petitioner that the Iqrarnama is not duly signed by the plaintiff-respondent, therefore, is not a properly executed instrument in her favour, is fantastic and unpersuasive. An undertaking (Iqrar-nama), is a written assurance by one party to another party for wilful performance of previously agreed duties at a specific time. For a validly executed deed, the signature of the executant and the marginal witness is sine qua non, while the acceptance or signature of a person in whose favour the Iqrarnama is executed, is not necessary requirement under the law. For instance a will deed is not required to be signed by the person in whose favour the will is made rather only testator is bound to sign the same. The undertaking/Iqrarnama dated 15-1-1994, is thus a valid deed and an instrument even without signature of the receiving hand i.e. the respondent/plaintiff.

10. For what has been discussed above, the learned Courts below have elaborately discussed and appreciated the evidence on the record and have reached to a just and proper conclusion by decreeing the suit of the respondent. The scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same even if on appreciation of evidence a different view can be formed unless these findings are shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by the learned counsel for the petitioner in the impugned judgments, which may warrant interference of this Court. Reference, in this regard can be made to case titled "Haji Muhammad Saleem v Khuda Bakhsh" (PLD 2003 Supreme Court 315).

11. For the reasons discussed above, this revision petition being meritless is hereby dismissed in limine. On dismissal of the revision petition, C.M. No.163/2013, regarding suspension of operation of the impugned judgments of the two Courts below, has become infructuous, which stands dismissed as such. AG/634/P Revision dismissed.