P L D 2011 Supreme Court 221 (PLP)

TARIQ PARVEZ KHAN, J.

Appellant Dr. Asma Masood brought suit for grant of decree for cash prompt dower to the tune of Rs.200,000, recovery of 60 tolas of gold ornaments or its market value @ Rs.8000 per tola as prompt dower, a house measuring 2 Kanals situated in village Mirza, Tehsil and District Attock or its market value i.e. Rs.30,00,000 and for agricultural land measuring 100 Kanals situated in village Chassian, Tehsil and District Attock or its market value i.e. Rs. 50,00,

000. The suit was also in respect of recovery of maintenance amount @ Rs.2000 per month since 17-7-1992 and dowery articles valuing Rs.400,000.

2. It is stated in the plaint that marriage of the appellant-plaintiff was solemnized with respondent No.1/defendant namely Masood Sajjad on 17-7-1992 vide registered Nikkah Nama and in terms of entries recorded in the Nikkah Nama, respondent-husband was bound to give dower to the appellant-wife as undertaken at the time of performance of Nikkah. It was further alleged in the plaint that through Iqrar Nama dated 13-7-1992, defendant No.2 namely Capt. Dr. Sajjad Ahmed, father of defendant No.1 has bound down himself as surety on behalf of defendant No.1, his son, for the payment of prompt dower including the house and agricultural land mentioned hereinabove.

3. Claim of the appellant was challenged by the two defendants through filing separate written statements but on the same date i.e. 20-12-2002. In both the written statements common preliminary objections were raised. Marriage was not denied but it was stated that the appellant- wife under the influence of her family, despite being provided update facilities including providing her a motorcar and facilitating her to run her clinic, for which huge amount was spent, she has received the amount of Rs.1500,000 or above, which is to be adjusted towards Rs.200,000 as was recorded in the Nikkah Nama to be the prompt dower.

4. Regarding 60 tolas of gold ornaments, it was stated that she has taken away not only 60 tolas of gold ornaments given to her by defendant No.1 but has also taken away 120 tolas of gold ornaments belonging to mother and sister of defendant No.1. It was further stated in the written statement that plaintiff was never given a house nor landed property as claimed and entries made in the Nikkah Nama to this extent are fictitious and have been manipulated by the plaintiff afterwards, dowery articles were partially denied.

5. After receipt of pleadings of the parties, learned Trial Court/Family Judge proceeded to frame issues on the basis of the pleadings and parties were allowed to produce their respective evidence.

6. In support of the plaint, appellant examined Qazi Abdul Alam as P.W.1, who performed Nikkah Nama Exh.P.W.1/1. Maulana Faqir Hussain appeared as P.W.2, who testified that he has seen the original Nikkah Nama Exh.P.W.1/1, which is correct and bears his signature and was signed by the plaintiff-wife in his presence; that the details of dower entered in the Nikkah Nama was settled between the parties and same are correct. In his cross-examination, the defendant No.1 brought photocopy of Nikkah Nama and exhibited the same as Exh. P. W .2/D-1. Raj Muhammad Khan appeared as P.W.3, who has witnessed the Nikkah Nama Exh.P.W.1/1 and stated that entries made in Nikkah Nama including the entries in respect of a house measuring 2 kanals, situated in village Mirza, Tehsil and District Attock and 100 Kanals agricultural land, situated in village Chassian, Tehsil and District Attock were correctly recorded and agreed upon in his presence.

7. Appellant/plaintiff-wife appeared as P.W.4 and she reiterated the contents of her plaint. During her examination-in-chief, she produced one Iqrar Nama, allegedly executed by defendant No.2, father of respondent-husband, which was objected to by the counsel for the defendant on the ground that in absence of original Iqrar Nama, its photocopy cannot be taken into evidence.

8. To rebut the plaintiff's evidence, defendant examined Amanuliah Khan as D.W.1, an officer from the Habib Bank Ltd. to prove that the appellant-wife and respondent-husband were running joint account and has referred to certain money deposits and withdrawals. Abdul Qadoos, again a Bank officer appeared as D.W.2 to prove the deposit in the accounts. D.W.3 Iftikhar Haider was produced who gave evidence in respect of registration of motorcar in the name of Sajjad Ahmed i.e. D.W.2. Qazi Ilyas appeared as D. W.4 and stated that Nikkah was performed in his presence and that he is witness to Nikkah Nama but only in respect of dower of Rs.200,000 and gold ornaments weighing 60 tolas were recorded and nothing was recorded beyond that because according to him rest of the columns were to be filled thereafter.

9. Dr. Masood Sajjad, respondent-husband appeared as D. W.5 on his behalf as well as on behalf of his father, who is defendant No.2 in this case. He stated that only 60 tolas of gold 'ornaments and. Rs.200,000 cash was fixed as dower which has already been paid to plaintiff and that his father has made no Iqrar Nama in respect of house and agricultural land and that entries made in Nikkah Nama other than gold ornaments and Rs.200,000 are fictitious.

10. Learned Trial Judge/Family Court vide its judgment dated 8-6-2004 partially decreed the suit by granting the decree of recovery of Rs.200,000, maintenance allowance @ Rs.2,000 per month since 26-6-2001 till the date of decree and dowry articles to the extent of admission made by the defendant.

11. Not satisfied from the judgment/decree of the learned Trial Judge/Family Court, two appeals were filed before the learned District Judge at Nowshera; one by appellant-wife and other by respondent-husband. Both the appeals were clubbed and decided through consolidated judgment dated 24-3-2005 and both the appeals were held to be devoid of merit, therefore, dismissed.

12. Not the respondent-husband but the appellant-wife invoked the Constitutional jurisdiction of the Peshawar High Court by filing Writ Petition No.1513 of 2005, which was decided on 14-1-2009, which met the same fate as that of appeal was dismissed holding that no substance therein.

13. We have heard the learned counsel for the appellant and the learned counsel appearing for the respondent. With their assistance, we have gone through the judgment impugned and the evidence of the parties.

14. Learned counsel for the appellant has argued that there are admitted facts including that marriage took place between the parties and Nikkah Nama was recorded by Maulana Faqir Hussain (P.W.2); that respondent-husband without permission of the appellant-wife not only neglected her but got married to another wife without her permission. It was also argued that the contents of the Nikkah Nama Exh.P.W.1/1 and Exh.P.W.2/D-1 are exactly the same; that latter document has been brought on record by the respondents themselves. It is argued that neither the statement of Qazi Abdul Alam (P.W.1) nor of Maulana Faqir Hussain (P.W.2), with regard to recording of entry of house and agricultural land has been successfully challenged.

15. Learned counsel for respondents has argued that defendant/respondent has produced convincing evidence to show that whatever dower was fixed and decided at the time of Nikkah Nama was duly given/paid to appellant-wife and the entries in respect of house measuring 2 Kanals and 100 Kanals agricultural land were not recorded at the time of Nikkah but are fictitious and fraudulent, made by the appellant wife in connivance with P.W. and P.W.2. His submission is that neither the boundaries of the house are given nor agricultural land has been specified in terms of their Khasra numbers, therefore, in absence of identity of the land and the house, the three Courts below have rightly concluded that claim of the appellant-wife is vague and no executable decree can be issued by the Court in respect of vague claim.

16. We with the assistance of the learned counsel for the parties have gone through the evidence of the parties. Present controversy and dispute is in respect of agricultural land measuring 100 Kanals, situated in village Chassian, Tehsil and District Attock and a house constructed over the area measuring 2 Kanals.

17. Although the case of the respondent before us is that entry recorded in respect of a house and 100 Kanals agricultural land are fictitious and were not recorded in presence of the parties at the time of performance of Nikkah but the fact remains that the document Exh.P.W.2/D-1 was brought on record by the respondents-defendants themselves. The two most important witnesses for the proof of Nikkah Nama are the persons who recited the Nikkah and who incorporated the contents in the printed Nikkah form. The appellant/plaintiff has produced Qazi Abul Alam as P.W.1 and Maulana Faqir Hussain as P.W.2; former has performed the Nikkah between the husband and the wife whereas latter has recorded entries in the Nikkah form. They both have stated that at the time of Nikkah, it was agreed upon between the parties that beside other dower, a house constructed on the area of 2 Kanals and 100 Kanals agricultural Land was also given as dower. Their statements are further supported by P.W.3 Raj Muhammad Khan, who was then Member (Judicial), Customs, Excise and Sales Tax Appellate Tribunal, who has stated that a house and 100 Kanals agricultural land were part of the dower. This witness remained a Judicial Officer since 1975. The three witnesses referred to by us hereinabove are totally disinterested witnesses and apparently have no reasons to make false statement against the respondent-husband and even have no relationship with the appellant-wife and otherwise have true respectable social status.

18. To controvert the evidence of P.W. to 3, the only evidence on this issue, produced by the defendant/respondent is DW-4 Qazi Ilyas, who though partially supported the stand of the defendant/respondent but has admitted in his examination-in-chief that however, he admits that rest of the entries were recorded in his presence and he signed the same. Now the question is, if something was yet to be recorded in the Nikkahnama then why this witness would sign the document, which according to him was still incomplete.

19. Appellant-wife has asserted in her statement that Iqrar Nama Exh.P.W.4/1 was executed in her favour by defendant-Sajjad Ahmed, father of the respondent-husband. This document has been rightly not considered by the Courts Below because appellant could not produce either the original of this document or the scribe of this document nor any attesting witness.

20. Now we can take to the question of determination as to whether the appellant-wife is entitled to the house measuring 2 Kanals and 100 Kanals agricultural land. Regarding house, there is oral evidence in the shape of statements of P.Ws. 1 to 3 and appellant-wife herself and a document Exh.P.W.2/D-1 brought on record by respondent-husband in the statement of P.W.2, wherein there is clearly recorded that a house situated in village Mirza, Tehsil and District Attock, measuring 2 Kanals of which market value has been given as Rs.700,

000. No successful suggestion has been made to the appellant/plaintiff by the respondent/defendant, when she was subjected to cross-examination by specifying the entries made in the Nikkah Nama to be incorrect except a general suggestion and not specific in respect of the house and the agricultural land.

21. Against the denial by the respondent/defendant about the entries in respect of the house and agricultural land, we find sufficient evidence, both quantitatively and qualitatively, in favour of the appellant, therefore, we decree the suit of the appellant in addition to what was given to her by the trial Court, in terms that she is entitled to receive as dower a house measuring 2 Kanals or its market value as admitted in document Exh.P.W.2/D-1; she is also entitled to agricultural land measuring 100 Kanals because of overwhelming evidence. .

22. Because of non-identity of the house as recorded in the Nikkah Nama, but otherwise proved by the appellant she is entitled to a house worth Rs.700,000 or in alternate to sum of Rs.700,000 as dower. We direct the learned Trial Court that on filing of execution application, shall execute the decree of Rs.700,000 in terms that by taking a report from the State Bank of Pakistan or National Bank of Pakistan that if the value of a house/property was Rs.700,000 in the year 1992, then what would be the rate of interest at the time of execution, by taking Rs.700,000 as basis with compound interest.

23. In respect of 100 Kanals of agricultural land, since no description of the land was given in the Nikkah Nama in terms of its Khasra numbers or identifying data, a decree is given in favour of appellant-wife as prayed for in her plaint. In view of absence of particulars of 100 Kanals land, the learned Trial Court shall appoint commission by directing a member of the Revenue hierarchy, to determine the average price of per Kanal agricultural land in village Chassian, Tehsil and District Attock and after such determination the appellant will be entitled to receive the 100 Kanals land or its market value so determined. This appeal is allowed in above terms with no order as to costs. Sd. Tariq Parvez Khan, J I agree with the findings of the Author Judge Justice Tariq Parvez, However I have appended. my separate note. (Sd.) Mian Shakirullah Jan, J I have added my dissenting note. (Sd.) Nasir ul Mulk, J ORDER OF THE BENCH By majority of two to one the appeal is allowed. No order as to costs. (Sd.) Mian Shakir-ullah Jan, J (Sd.) Nasir ul Mulk, J (Sd.) Tariq Parvez Khan, J Civil Appeal No. 80-P/2009. MIAN SHAKIRULLAH JAN, J.

The instant case pertains to matrimonial dispute between the spouses with regard to the payment of Dower comprising various movable and immovable properties. The dispute, subject matter of the appeal, has converged only to the extent of payment/delivery of immovable property comprising of a house valuing Rs.700,000 and 100 Kanals agricultural property which the respondent/husband has not only refused to pay/deliver to the appellant/wife but rather has denied her claim/title to the said properties which compelled the appellant to approach the Courts for the redressal of her grievance and the matter has now reached upto the level of this Court.

2. The Courts below have non-suited the appellant qua her claim to the Dower, now the subject-matter of the present appeal i.e., the two immovable properties, on the ground these being unidentifiable as sufficient description of the properties has not been given. At the time of grant of leave, an unreported judgment of this Court, delivered in the case of Mst. Maimoona Nabi v. Saad Seth and others (Civil Petition No.769-P/2003), has been relied upon by the learned counsel for the appellant whereby the house given in Dower was the subject matter and the husband had undertaken to transfer the house in the name of his wife which belonged to his father and this Court while deciding appeal arising out of execution proceedings had held her to be entitled of an amount equal to the price of the house. We are also unanimous in granting relief to the present appellant qua the house in the form of an amount of Rs.700,000, a price mentioned in the Nikahnama along with interest.

3. The matter which has now further converged, and left, is in respect of the landed property comprising 100 Kanals of agricultural land in a particular village and on which my two learned brothers (Justice Nasir-ul-Mulk and Justice Tariq Parvez, JJ) have differed in their opinion. Justice Tariq Parvez is of the view that appellant is also entitled to the value of the said agricultural land to be determined by the Executing Court on the basis of well established principle of average value of the property to be sorted out by the Revenue authorities. However, Justice Nasir-ul-Mulk is having a different view that since sufficient description of the property has not been given through which it could have been identified and also there is no mention of its value in the Nikahnama as has been made in respect of other property i.e., the house, she is not entitled even to the value of the property as to be determined by the Court. I, while agreeing with the opinion of Justice Tariq Parvez, with respect, differ to the one taken by Justice Nasir-ul-Mulk and this necessitates of adding my separate note.

4. That once we decide that if the property/house mentioned in the Nikahnama on account of lack of sufficient description leading to its identification then its price, if mentioned in the Nikahnama, can be awarded then in the same way the value of the other property (agricultural), the price of which has not been mentioned in the documentation/Nikahnama, can also be granted if the evolvement of a mechanism for determination of value is possible, which is not in conflict with any provision of law rather in consonance with the established principles for determining the value of property, then the same be resorted to. Making a distinction between the two, as referred to above, on the ground that the value of the property has not been mentioned but as stated above can be determined through a mechanism, then I am afraid it may lead to decisions which may be considered as conflicting one. Moreover, in the judgment, which is and has been referred to in the leave granting order i.e., Civil Petition No. 769-P/2003 (Mst. Maimoona Nabi v. Saad Seth and others), is a mode adopted during the execution proceedings without an order of the Court in the main suit or appeal which is of a wider scope than the one in the execution jurisdiction where the Executing Court cannot travel beyond the terms of the decree, then in the instant case such a recourse can very easily be made while deciding the appeal arising out of the main suit. (Sd.) Mian Shakir-ullah Jan, J Civil Appeal No. 80-P of 2009 NASIR UL MULK, J.

I have read the judgment proposed to be delivered by my brother, Tariq Parvez, J. Whereas I agree that the appellant is entitled to a decree for recovery of additional amount of dower of Rs. 700,000 with interest, being the market value of the two kanals house as evaluated in the Nikahnama, however, with utmost respect, I have reservations to the grant of relict' to the extent of 100 kanals of agricultural land as dower.

2. The facts have been comprehensively narrated in the majority judgment and only those relevant for my view of the matter are reiterated. The suit of the appellant, Dr. Asma Ali, was decreed in her favour by the Judge Family Court, Nowshera, against the respondent/husband, Masood Sajjad, to the extent of recovery of Rs.200,000 as dower, maintenance allowance at the rate of Rs.2000 per month, from 26-6-2001 till the date of decree, and the recovery of dowry articles to the extent admitted by the respondent in his written statement. The appellant's prayer for dower of a house of two kanals, situated in village Mauza Mirza, Tehsil and District Attock or its market value of Rs.30,00,000 and agricultural land measuring 100 kanals in village Chesayan, Tehsil and District Attock or its market value of Rs.50,00,000 as prompt dower, was declined. Her claim. to 60 tolas of gold ornaments was also rejected as it was proved that the same were delivered to her at the wedding.

3. The appellant's claim to the two landed properties as prompt dower was based upon the entry to that effect in the Nikhanarna dated 17-7-1992' and an undertaking (Iqrarnama) of the same date by Captain Dr. Sajjad Ahmad, father of her husband, who was also impleaded as defendant. The Trial Court ruled out of consideration the undertaking for want of proof as neither the scribe nor the marginal witnesses of the document were produced by the appellant. As regards the entries in the Nikahnama, the relief on its basis was declined to the appellant on the ground that her husband did not own the properties, or for that matter any property, and furthermore, no particulars of either the house or the 100 kanals of agricultural land was mentioned either in Nikhanama or in the plaint. Decree for the two properties was, therefore, not granted for a lack of their identity. These findings of the Trial Court in its judgment dated 8-6-2004 were upheld by the Appellate Court and by the High Court in its constitutional jurisdiction.

4. Leave to appeal was granted to the appellant on 21-4-2009 in the following terms:-- "Mr. M. Ajmal Khan, Advocate-on-Record for the petitioner, contended, inter alia, that the evidence on record has not been appreciated in its true perspective; that respondent No.2, father of respondent No.1, in respect of the Nikah' of the parties executed an Iqrarnama' dated 13-7-1992 (Exh.P.W.4/1) in favour of the petitioner concerning prompt dower and also personally bound himself as surety for respondent No.1 and the dower amount is still outstanding against respondent No.1 and that the impugned judgment is not in consonance with the dictum laid down by this Court in Civil Petition No. 769-P of 2003 (Mst. Maimoona Nabi vs. Saad Seth and others). (2) Mr. Shahzad Akbar Khan, Advocate for respondent No.1, on the contrary, supported the impugned judgment on all counts and prayed for its sustenance. (3) After hearing learned counsel for the parties, we feel that a case for grant of leave to appeal is made out. Leave is granted to examine in detail, inter alia, the above contentions raised by learned counsel for the petitioner."

5. The learned counsel for the appellant made no attempt to persuade us to believe the undertaking given by the father-in-law of the appellant, and quite rightly so, as the same was never proved through evidence and thus, discarded by all the three Courts. He, therefore, fell back on the entries made in the Nikahnama. These entries were also not disputed by the learned counsel for the respondents as copies of the Nikhanama, produced by the appellant Exh. P. W.1/1, and that by the respondent, Exh. P. W.2/D1, had substantially similar contents, notwithstanding some insignificant variations. For the present purpose both made mention of house measuring two kanals, valuing Rs.700,000, and 100 kanals of agricultural land as dower, in addition to Rs.200;000 cash dower. The Trial Court as well as the Appellate Court accepted the genuineness of the entries in the Nikahnama and the High Court also did not disbelieve the same. The only question which calls for determination is whether a decree can be passed in favour of the appellant on the basis of such entries in the Nikahnama.

6. I will first take up the 100 kanals of agricultural land mentioned in the Nikahnama as prompt dower. It is not disputed that respondent No.1, the husband of the appellant, does not own any agricultural land in the District (Attock) or elsewhere. The Nikahnama describes this property as "100 kanals agricultural land situated at village Chesayan, Tehsil and District Attock." No further description or particulars of the land are mentioned in the Nikahnama, or for that matter, in the plaint. Even in her testimony before the Trial Court, neither the appellant, nor any of her witnesses have identified the 100 kanals agricultural land. In fact its very description in the Nikahnama renders it unidentifiable.

7. The provisions of the Civil Procedure Code have been excluded by section 17 of the Family Court Act, 1964, to proceedings under it. End it has been consistently held that such provisions are not stricto sensu applicable to the proceedings before the Family Court. However, as the Family Court Act is not an all encompassing legislation and the principles of certain provisions of the Code of Civil Procedure have at times been invoked when necessary to give effect to the Family Court Act. For example, the only provision in the Act for execution of a decree is embodied in section 13, which only provides for the enforcement of money decree passed by the Court. No provision has been made for the execution of a decree for recovery of immovable property. For this purpose, the Courts executing such decrees passed by the Family Court have been adverting to the provisions of Civil Procedure Code. Likewise, apart from subsection (1) of section 13, providing that the Family Court shall pass a decree in such form as may be prescribed, no further provisions have been made regarding contents of decrees of different nature. For the present purpose, one may refer to Rule 19 of Order XXII of the Civil Procedure Code, mandating that a decree for recovery of immoveable property shall contain its description sufficient for its identification. This would only be possible if the property is sufficiently described in the plaint or in the evidence. The identification of the immoveable property is necessary for the execution of the decree by the Executing Court as it cannot go beyond the terms of the decree.

8. Undisputedly, the 100 kanals of agricultural land claimed by the appellant as part of the dower, is not identifiable. Describing property in terms of its area in a particular village, without giving its exact location, would not be sufficient description for the grant of decree for its recovery. A decree granted in such ambiguous terms would be incapable of execution. It was on these premises that all the three Courts have consistently held that on account of the lack of proper description of the 100 kanals of agricultural' land, no decree could be granted to the plaintiff for its recovery. Even money decree in the alternative cannot be awarded in the absence of identity of the property as there would exist no basis for evaluation.

9. The judgment of this Court in case of "Mst. Maimoona Nabi v. Saaed Seth and others (C.P.No.769-P of 2003)" mentioned in the leave granting order, is materially distinguishable. In that case a particular house was given to the wife as dower and transferred to her through a registered deed. The suit by the wife for recovery of dower was decreed in her favour. During the execution proceedings it transpired that the house belonged to the wife's father-in-law and not to her husband. The house was evaluated and this Court in a matter arising out of execution proceedings ordered the payment of market value of the house to the wife/decree-holder. The distinguishing feature of the present case is that the 100 kanals of agricultural land is not identifiable to be evaluated.

10. As regards claim of the appellant of the two kanals house, its market value at the time of the marriage has been mentioned in the . Nikahnama. Thus, notwithstanding that the house has not been sufficiently described in the Nikahnama, since it has already been evaluated therein, the appellant can be granted a decree based on such evaluation. The Courts have overlooked this aspect. To compensate the appellant for the inflation in the currency and the increase in the value of real property, I agree that interest be granted on the decree for recovery of Rs.700,000 from the date of the Nikahnama, namely, 17th July, 1992. (Sd.) Nasir ul Mulk, J M.H./A-5/SC Order accordingly.