P L D 1976 Peshawar 128 (PLP)

ABDUL GHANI KHAN KHATTAK, J. ‑--Mst. Zarin Qaisha wife of Arbab Wali Mohammad Khan of Village Karen Tehsil and District Peshawar has by this writ petition challenged the order of respondent No. 2 (Member Federal Land Commission) passed by him on 28‑10.75.

2. The faces relevant to the petition are that in 1951 Arbab Wali Mohammad Khan respondent No i executed an unregistered dower deed in respect of land comprising of certain Khasra numbers detailed in the deed measuring 947 Kanals 9 Marlas in village Kareri in favour of his wife petitioner in lieu of her dower. However, no mutation was entered in favour of the petitioner nor there is any entry in the revenue record in this regard. Arbab Wali Mohammad Khan filed a declaration form under paragraph 12 of the Lend Reforms Regulation 1972 (hereinafter to be called the Regulation) declaring therein that the area 947 Kanals 9 Marlas in village Kareri had been transferred by him in favour of the petitioner at the time of their marriage. The claim of the petitioner wag not accepted by the Land Commission, N. W. F. P. However, the Chief Land Commissioner, N.‑W. F. P., Peshawar by his order dated 23‑11‑72 by accepting the review petition set aside the previous orders and declared the alienation of land in question by way of dower by Arbab Wali Mohammad Khan respondent No. 1 in favour of his wife petitioner, as valid, This order of review was examined by Head of the Inspection Team, N. W. F. P. who pointed out the following: (a) In review nothing fresh bad come up and thus a review was not justified. (b) The parties obtained the consent decree in one day. (c) It is char that the declarant and his wife have conspired to defraud the Government. The learned Member, Federal Land Commission respondent No. 2 on a sun morn revision set aside the order of Chief Land Commission on 23‑11‑72 and held that the property in question which was given to the petitioner in her dower is the property of respondent Na. 1 and shall ‑be resumed. This order has been challenged before us. The authorities of land Commission including the order of Member; Federal Land Commissioner does not hold the dower deed to be a fictitious document, i.e. the genuineness of the document does not seem to have been doubted by them, but the transfer by this deed was not accepted because it was not a registered document, alleging that it had not been acted upon by the parties, for no mutation .vas entered on the basis of this document and then there is no entry in the revenue record. In the written statement by the Land Commission the contents of pares 1 to 10 of the writ petition arc not controverted by the respondents. Paragraph Nos, 2, 3 and 4 of the writ petition are pertinent to be reproduced below:‑

2. That the petitioner is the wife of respondent No. 1 and her marriage took place on 5thJanuary, 1952 and at the time of her marriage a dower deed was executed by respondent No. 1. on 31‑12‑51 whereby he gave an area of 947 kanals and 9 marla of land situated in village Kareri Tehsil and District Peshawar, details of which are given in the Dower Deed, copy of which is attached herewith as Annexure `A'.

3. That after the above mentioned dower deed as stated in the dower deed the possession of the property was delivered to the petitioner and since then: the petitioner and the respondent No. 1 are living as husband and wife and they have got issues alive at the present moment.

4. That in the proceedings under MLR 115 respondent No. 1 showed the property in question as the property of the petitioner on account of the dower mentioned above. As stated earlier that the genuineness of the dower deed is not in issue. The question convassed before us by Mr. Hidayatullah Khan and the learned' Addl. Advocate‑General is that the order passed by Mr. I. U. Khan, Member Federal Land Commission was not subject to writ jurisdiction on the authority of Muhammad Hussain Munir v. Sinkandar (P L D 1974 S C 139) With respect, the distinction is that the petitioner was not a declarant before the Federal Land, Commission, therefore the orders passed .by that forum would be orders without lawful authority. Those land‑owners come within orbit of the jurisdiction of the Commission who are declarants. The next question that follows is whether the land comprised in the dower deed is the land of Arbab Wali Mohammad Khan, so as to give jurisdiction to the Commission, or this is the land of the petitioner, and the Commission will then have no jurisdiction to question her title on legal grounds when the genuineness of the deed has been categorically admitted.

3. Explanation 3 to paragraph 7 of the regulation reads:‑ In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors:‑ (i) Whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any interest or encumbrance has been created; (ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumberance has been created; (iii) Who has been paying the land revenue and other charges in respect of such land; (iv) Who has been receiving the rent for or batai share from such land. The words "among other matters" do not exclude from consideration the social condition under which women as a class is not in a position to attend to a duty beyond the sphere of her hearth and home. We take note of the fact that in almost all the cases of females their interest is looked after by the male members of the family as such it will not be unusual if the petitioner's interest in the land given to her by her husband was taken care of by him ever since it became her property.

4. Mehr or dower is a sum of money or other property, which the wife is entitled to receive from the husband in consideration of marriage. Under Mohammadan law dower is a mark of respect to the wife. Section 10 of the Muslim Family Laws Ordinance, 1961 reads:‑ "Where no details about the mode of payment of the dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand. For the above reasons the consent decree in favour of the petitioner by a Court of competent jurisdiction can still less be termed as having been obtained by fraud or collusion. It would be futile to argue that in 1951 the spouses could foresee the promulgation of M. L. R. and with a view to be secure from its rigour the arrangement of the deed in question was resorted to, when the genuineness of the deed is not denied, the allegation of collusion or fraud on the statute would obviously be baseless.

5. Kashi Prasad Saksena a Scholar of great repute writes on the object and importance of dower in the following terms:‑ "Dower is an essential incident of the Muslim law of marriage, so much so that even if there is a stipulation on the part of the woman before marriage to forego all her right to dower, or even if silo agrees to marry without any dower, the stipulation or agreement will be invalid and ineffectual, and she would be entitled to customary dower. If there is no specification of dower in the marriage contract, the marriage will beheld valid, and the law would adjudge it on definite principles. The wife can, if she chooses, give a valid discharge of the dower to her husband after marriage, but she cannot do so before or even at the time of marriage."

6. We stated earlier that the husband respondent No. 1 absolved him self of the obligation in response to his personal law and the dispute is now between the subject and the state. Section 49 of the Registration Act, after amendment of 1962 reads:‑ "No document required to be registered under the Act or under any earlier law providing for or relating to registration of documents shall:‑ (a) operate to create, declare, assign, limit or extinguish, whether in res pect or in immovable property, or (b) confer any power to adopt, unless it has been registered." It was argued by Mr. D. M. Kamil learned counsel for the petitioner that the repeal of proviso to Section 49 of the Registration Act saves from any change the existing rights, and no retrospectivity can be read in its application to past transaction, for in terms the amended section is not procedural therefore the existence of rights of the petitioner shall not be in jeopardy on the ground of deed being unregistered We agree with the learned counsel for the petitioner that the non‑registration of the deed in question which does not intend to create new rights, but it has in the past created eretain right in favour of the petitioner is not affected by the procedure of inadmissibility. The view of the matter we take is supported by the case of Mst. Hussan Pari v. Sultan Mohammad Khan (P L D 1975 Pesh. 121). The result is that by accepting the writ petition we declare the impugned order of the learned Member, Federal Land Commission as without lawful authority and of no legal effect as such the case would go back to the Commission so as to give effect to the dower deed in question in favour of the petitioner. We make no order as to costs. S.Q. Petition accepted.