P L D 1954 Lahore 614 (PLP)

M. R. KAYANI, J.‑On the 16th of December 1948, Mst. Sardar Begum brought a suit against her husband Bashir Ullah for the dissolution of her marriage under the Disso lution of Muslim Marriages Act, 1939, on the following grounds:‑ (1) that she had not been maintained for two years; (2) that the husband had not performed his marital obli gations for three years; (3) that she had not been treated equally with the defendant's first wife in accordance with the injunction of the Holy Quran. On the 25th of April 1949, the plaint was amended and the following addition made thereto:‑ "The defendant had sold a part of the house belonging to the plaintiff and had not paid to her its price notwith standing that it had been demanded of him." This resulted in the striking of the following issues:‑ Has the defendant misappropriated plaintiff's property and with what result ? "The first two Courts found in favour of the defendant and dismissed the suit. On second appeal, Rahman, J. agreed with the Courts below except as regards the third issue, in respect of which he observed that although "the finding of the Courts below that the sale of the house in which the appellant owned a one‑third share was with her consent being one of fact cannot be disturbed in second appeal" the matter was not concluded by that finding. Upon an examination of the husband's statement he came to the conclusion that the husband has misappropriated the proceeds of the plaintiffs' share of the property. Even, therefore, if the disposal of the house was with her consent, "inasmuch as a sale of 2/3rd share in the house may not have been feasible without bringing into sale the 1/3rd share belonging to the plaintiff", there was no consent to the appropriation of the proceeds of her share. "He has evidently kept her out of this money for three and a half years nearly and thus prevented her from exercising her legal rights over this property which had been converted into cash" The case, according to the learned Judge, fell within sub‑clause (d), clause (viii) of section 2 of the Act, with the result that the appeal was allowed and the plaintiff's suit for dissolution of marriage was decreed with costs throughout. The defendant has consequently instituted this Letter Patent Appeal with the permission of the learned Judge in Chambers. Since the learned counsel for the plaintiff was frequently using the word "misappropriation" in relation to the proceeds of the sale of the house, we wish to say that issue No. 3. should not have been so framed as to make its appear that it was necessary for the defendant to commit an act of misappropriation before the provisions of the Act" could reach him. Section 2 (viii) (d) provides that the wife would be entitled to have her marriage dissolved "if the husband treats her with cruelty, that is to say, disposes of her property or prevents her from exercising her legal rights over it". What we have to find, therefore, is whether the husband had disposed of his wife's property or prevented her from exercising legal rights over it. The principal objection to the decision of the learned judge in Chambers is that he has ignored a finding of fact by the District Judge. The finding in question is expressed in these words:‑ "The defendant had admittedly transferred 1/3rd share in three houses to the plaintiff. One of these houses includ ing the 1/3rd share transferred to the plaintiff has been sold by the defendant and his brothers to one Allah Mehdi for Rs. 4,

500. The defendant has led evidence to show that this sale was effected with the consent of the plaintiff and in agreement with the learned Sub‑Judge I am also of the opinion that the plaintiff did give her consent. There is no evidence to show this but the parties' counsel have stated at the bar that this sale took place in the year 1944. It is remarkable that for full four years the plaintiff did not object or protest.................................. It was held in 1946 P.L.R 343 that section 2 of the Act would seem to convey that the property must have been disposed of with the object or intention of preventing the wife from exercising her right without her wishes or consent." This only means that according to the learned District Judge the plaintiff gave her consent to the sale. This conclusion has been accepted by the learned judge in Chambers and there is no further finding by the District Judge which has been disturbed in second appeal. The decision in second appeal is that although the sale of the house must be assumed to be with the consent of the plaintiff, the appropriation of the proceeds thereof was not with her consent. But upon an examination of the statement of the defendant himself and of the finding of the District judge on this point, we are of the view that it is not a finding which can be treated as conclusive. It is not enough for the Court of': appeal to say that "the defendant has led evidence to show that this sale was effected with the consent of the plaintiff and in agreement with the learned Sub‑Judge I am also of the opinion that the plaintiff did give her consent. The evidence that was led ought to have been discussed and an independent mind brought to bear on the issue. Even if the Court of appeal professes to have examined the evidence but it does not appear from the judgment that it has done so, a mere statement that upon an examination of the evidence it agrees with the conclusions of the trial Judge would not convince the Court of second appeal that the evidence has been so appraised as to make it unnecessary for that Court to undertake a second appraisal. It is only when the Court of second appeal is thus convinced that it will regard the finding of fact by the District judge as con clusive. It will next be found that some of the statements in the judgment of the learned District Judge are not borne out by the file. For example he accepts the statement at the bar that the sale of the house took place in the year 1944 on the ground that there is no other evidence to prove the date of the sale. The best evidence apart from the docu ment itself would be the statement of a party to the sale and if, therefore, we have the direct evidence of the defendant in this behalf unrebutted, we ought to regard it as credible. He stated on the 2nd of April 1949 as D. W. 4 in cross‑examination that the plaintiff had left his house for her father's in September 1946 and that the house had been sold "31 years ago". This would take us back to September 1945. It means that almost a year after the sale of the house the plaintiff left her husband, and yet the learned District judge, accepting the statement at the bar that the sale took place in 1944, observes, "It is remarkable that for four years the plaintiff did not object or protest". Based as the finding is on oversight or mis‑statement of the evidence, it cannot be regarded as conclusive. The learned judge in Chambers has rightly based his find ing on the following statement of the defendant :‑ "The real cause of dispute between us is that I had gifted 1/3rd share in three houses to the plaintiff in lieu of her dower. Of those houses I sold one jointly with my brothers with the consent of the plaintiff and I have suffered the sale money to be spent by me (zar‑i‑saman mujh se kharch ho giya hai). The plaintiff and her father desire that the plaintiff's share of the sale money should be deposited in her name in a bank but I say that I am prepared to make payment of this money by instalments but I cannot pay it in lump sum. The house was sold to Ali Mehdi. The sale‑deed does not bear the thumb impression of the plaintiff by way of her consent. I and the plaintiff were then in Allahabad. I sent my mukhtarnama authorising sale to my younger brother who sold the house. We sold the house because we were in debt." We would add that, in the first place, the statement that the cause of dispute is the sale of the house, is so inconsistent with any expression of consent by the plaintiff, that it could be legitimately inferred from the defendant's own statement that the plaintiff was annoyed over the sale of house‑a circumstance which would exclude her consent. But if it is granted that she had consented to the sale, then her annoyance has been occasioned by the fact that the defendant has "managed" to dispose of the sale money. The words "zar‑i‑saman mujh se kharch ho giya hai" can, by no stretch of imagination, be interpreted to mean that the sale money was appropriated to the payment of debts with the consent of the plaintiff and that, consequently, after having given her consent to the sale, the relationship between the plaintiff and the defendant was that of a creditor and a debtor, which was not within the contemplation of section 2 clause (viii) (d). Here we are forestalling an argument employed in Mst. Umatul Hafiz v. Talib Husain (A I R 1945 Lah. 56), a case which will be presently referred to. Assuming that the plaintiff was agreeable to the sale, her agreement was based on the understanding that her share of the sale money would be deposited in bank. This is a clear inference from the defen dant's own statement that the non‑deposit of the money (if not the actual sale) is the real casus belli. It is notice able that although the plaintiff's consent to the sale was obtained, what the defendant sent to his brother from Allahabad was a power of attorney, not of the plaintiff, but of himself. There are strong indications that even the sale was without her consent. Next, it was argued that according to 1946 P. L. R 343 on which the first two Courts had relied, "section 2 of the Act would seem to convey that the property must have been disposed of with the object or intention of preventing the wife from exercising her rights without her wishes or consent". The case in question is Mst. Umat‑ul Hafiz v. Talib Husain (supra) and accepting that interpretation‑if that were all that the learned Judge had said‑we are of the opinion that selling the house with the plaintiff's consent but disposing of the proceeds without her consent would constitute disposal with the object or intention of preventing her from exercising her rights‑over the proceeds. But we cannot accept that interpretation, for it unceremoniously swallows the alternative " or" between "disposes of her property" and " prevents her from exercising her legal rights over it." In the first alternative, it will be enough if we find that the husband " disposes of the property". It is just disposal without any intention that makes the conduct actionable. If the disposal is with her consent, then the matter should he pursued to the full implications of that consent. If, for instance, the plaintiff allowed her husband to sell her property or even, requested him to do so with the object of depositing the sale proceeds in the bank and the husband after complying with the first part of the request appropriated the money to his own use, it will constitute disposal under the Act. In the present case it would appear, as the learned Judge in Chambers has observed, that the sale was not at her request but that it was permissive. The defendant and his brothers were in debt and they wanted to sell a house but as it would be difficult to find a customer for 2/3rds of a house, they naturally asked for the plaintiff's consent which in the present case became available subject to the condition that her share were deposited in bank. The learned counsel for the defendant relied also on the following passage in Mst. Umat‑ul Hafiz v. Talib Husain in arguing that the application of clause (viii) sub‑clause (d) required conditions which did not exist in the present case: "I should interpret the word "property" in the sense of a substantial portion of a wife's property and its disposal in the sense of getting rid of that property not for the wife's benefit but for the selfish ends of the husband not with the object of meeting a pressing need but more, in the sense of waste and this also when done with the object of depriving the wife of her property and not with her consent or for things in and from which her consent might have been reasonably or legitimately presumed, implied or inferred." We agree that the property disposed of should not be unsubstantial but we do not agree that if disposal is necessary for a pressing need of the husband, it becomes legitimate. We should take the words of the Act as they stand and no circumscribe a woman's right by conditions which in our opinion ought to be implied in the words disposes of her property". We should not inflict on the statute our own misogyny or peculiar complexes about women. The appeal is dismissed with costs. A. H. Appeal dismissed.