P L D 2026 High Court (AJ&K) 26 (PLP)

SARDAR MUHAMMAD EJAZ KHAN, J.

The captioned appeals have been filed against the impugned judgment and decree passed by the learned Additional District Judge empowered as Judge Family Court, Muzaffarabad, on 30.09.2022, whereby, the suit for recovery of dower was decreed on the basis of entries of 'Nikah-Nama' instead of plot bearing No.62-A measuring 05 Marlas situated in Mozia Maira Tannolian, Muzaffarabad, so agreed to be transferred in the light agreement dated 11.11.2010 in lieu of dower.

2. As common question of facts and law is involved the in the instant appeals, hence, the same were consolidated and are being decided through this single judgment.

3. Facts forming the background of captioned appeal are that plaintiff-appellant filed a suit for recovery of dower plot No.62/A measuring 05 Marlas out of measuring 01 Kanal situated in Mozia Maira Tannolian Muzaffarabad, agreed to be paid through agreement dated 11.11.2010 in lieu of Rs.2,50,000/-. It has been stated that the marriage between the parties was solemnized on 15.11.2010, while three days before the marriage an agreement between the parties has been executed wherein it has been promised by surety/guarantor-respondent who is father of bridegroom that dower amounting to Rs.2,50,000/- will be paid in shape of plot No.62/A measuring 05 Marlas situated in Mozia Meria Tannolian, Muzaffarabad while husband of plaintiff-appellant died on 15.01.2019 and thereafter, she shifted to her parents at Chella Bandi. It has been claimed by the plaintiff-appellant that after the death of her husband, she demanded her dower from respondent who is father of my husband but the same was not paid. On suit the defendant-appellant in cross-appeal was summoned who appeared before the trial Court and filed written statement. The learned Judge Family Court in the light of the pleadings of the parties framed issues two issues including relief clause and after recording evidence and hearing the parties, decreed the suit on the basis of entries of 'Nikah-Nama' 15.11.2010 instead of plot bearing No.62-A measuring 05 Marlas situated in Mozia Maira Tannolian, Muzaffarabad, so agreed to be transferred in the light agreement dated 11.11.2010 in lieu of dower vide impugned judgment and decree dated 30.09.2022. Both the parties challenged the impugned judgment and decree dated 30.09.2022 for redressal of their grievance, hence, these appeals.

4. Having heard the respective arguments advanced by the learned counsel for the parties at bar, I have gone through the record of the case with my utmost care and caution.

5. The point is yet to be determined that whether the impugned judgment and decree of the learned Judge Family Court, Muzaffarabad, has been passed in accordance with law or not?

6. First of all, it has to be evaluate the claim of the plaintiff-appellant as taken in suit wherein she specifically in para-2 took the following

7. In response of pleas taken in suit, the defendant-respondent filed written statement on 22.01.2020 wherein it has been admitted in para-2 that he was the surety/guarantor of dower while after the marriage plaintiff-appellant and her mother did not accept the agreement dated 11.11.2010 and they demanded to pay the amount of dower as Rs.2,50,000/- and the said amount was arranged by defendant-respondent in a limited time and paid the whole dower amount before marriage and thereafter, the amount of Rs.2,50,000/- so fixed between the parties was written in column-4 of 'Nikhanama'. So when the defendant-respondent appears to have claimed that entire dower has been paid before marriage, hence, the burden of proof was shifted on his shoulders to bring on record cogent and reliable evidence that the dower amounting to Rs.2,50,000/- was paid before execution of Nikah / dated 15.11.2010.

8. Now, the point is yet to be determined that whether the defendant-respondent prove his case through any reliable evidence. After deep scrutiny of evidence brought on record by both the parties, it depicts that although the witnesses produced by the defendant-respondent deposed in their depositions that at the time of 'Nikh' Wakeel / of plaintiff-appellant was asked by about the payment of dower who told that whole dower has been paid earlier. Evidence exposes that none of the witnesses produced by the defendant-respondent has deposed that the dower amount was paid in their presence or at the time of execution of 'Nikhanama' dated 15.11.2010.

9. A contemplate perusal of Exh. "PA" i.e. Nikah-Nama dated 15.11.2010 spells out that whole dower was fixed as Rs.2,50,000/- and after perusal of Nikah-Namas produced by the parties, it shows that in column of prompt dower, the sign of payment tick mark ( ) has been shown. Definitely, 'Nikah-Nama' being registered document carries presumption of truth regarding its correctness. Now, consideration is given to the root of case, behind the seen what was the cause of writing tick mark on the column of prompt dower? It appears from record that before execution of 'Nikah' both the parties executed an agreement pertaining to payment of dower amount on 11.11.2010 four days before the marriage, wherein, husband of plaintiff-appellant has promised that plot bearing No.62-A measuring 05 Marlas out of 01 Kanal in lieu of equivalent to dower amount of Rs.2,50,000/- shall be given. For more convenience the scribe of agreement so agreed between the parties on 11.11.2010 is usefully reproduced as under:-

10. It is an undeniable fact on record that the parties executed the aforesaid agreement four days before execution of 'Nikah' on 11.11.2010 and in that agreement, defendant-respondent-Mir Hussain is shown to be surety/guarantor who is surety/guarantor of dower on behalf of bridegroom as written in column-6 of 'Nikah-Nama' dated 15.11.2010. After cumulative study of evidence produced by the parties, it gives a clear picture that before execution of 'Nikah' dated 15.11.2010 the intention of the defendant-respondent was that plot No.62-A measuring 05 Marlas out of 01 Kanal situated in Maira Tannolian, Muzaffarabad, shall be transferred in favour of the plaintiff-appellant in lieu of dower amounting to Rs.2,50,000/- rather plaintiff-appellant proved her case through reliable evidence to the extent that the dower in lieu of five Marlas plot was given through agreement dated 11.11.2010, which has not yet been transferred. Although the husband of the plaintiff-appellant has died yet defendant-respondent being surety/guarantor of dower as well as agreement dated 11.11.2010 is liable to transfer the land as claimed by her, hence, the learned trial Court misconstrued the matter and failed to appreciate the evidence in its true perspective while passing the impugned judgment and decree, which is a result of misreading and non-reading of evidence.

11. So far as the contention of the learned counsel for the defendant, appellant in cross-appeal that Noor Hussain has died whose legal heirs have not been impleaded as party in the suit rather his son was not competent to execute agreement and the plaintiff-appellant is not entitled to claim the same because no any thumb impression has been affixed by her on the said agreement has no substance particularly when defendant-respondent was a single allottee of the plot in question in view of allotment order and transfer order dated 06.02.2014 and 31.08.2006, which are at pages-8 and 9 of paper book, there is no need to implead legal heirs as party in the suit other than him because he had not only stood surety/guarantor of dower/'Nikah-Nama' dated 15.11.2010 but also surety/guarantor of agreement dated 11.11.2010 and it cannot be said that the right of calming dower of the plaintiff-appellant after the death of her husband does not survive whereas it is a natural phenomenon in our society that most of matters are decided by elder members of family with the consent of their children/youngers and family law is a special law and the provisions of The Qanun-e-Shahadat Order, 1984 are not applied as stricto sensu to the family matters. However, from perusal of whole evidence brought on record, it shows that plaintiff-appellant successfully proved the execution of the agreement dated 11.11.2010 (Exh. "PB") while record further establishes that the defendant-respondent in written statement as well as in his Court statement has not denied the execution of the aforesaid agreement and in both deeds i.e. agreement dated 11.11.2010 and 'Nikah-Nama' dated 15.11.2010, his presence being surety/guarantor is admitted and proved from record, hence, the argument having no substance is hereby repelled. My this view fortifies from a case reported as Mst. Razia Begum v. Jang Baz and 3 others [2012 CLC (Lahore) 105] wherein it has been held that:- "

18. The learned counsel for the respondents Nos.1 and 2 has argued that as the husband of the petitioner was not owner of the land in question against therefore, the suit filed by father-in-law (defendant/ respondent No.2) could not be decreed to that extent. In this respect it is held that the suit for recovery of dower can validly be filed against father-in-law, if the father-in-law had stood surety or had guaranteed the payment of dowers. He could lawfully be impleaded in the suit and was, as such, liable to pay the dower as the bridegroom himself. The father of the respondent No.1 namely Ghulam Adalat (respondent No.2) has been arrayed as defendant No.2 by the petitioner in her above mentioned suit. Ghulam Adalat (respondent/defendant No.2) was party to Nikahnama Exh.P.2. His name is clearly mentioned in Column No.11 of Nikahnama. He was appointed as 'Wakeel' of the bridegroom. The Nikahnama also contains thumb-impression of Ghulam Adalat (defendant/respondent No.2), therefore, the judgment and decree can validly be passed under the Family Laws against the defendant/respondent No

2. Reference may be made to the case of Mst. Shahenaz Akhtar v. Fida Hussain and 2 others (2007 CLC 1517). This court, in the said case, decided the above issue in the following terms: S. 5 & Sched.

Constitution of Pakistan (1973), Art. 199- Constitutional petition

Suit by wife for recovery of dower, dowry articles and for grant of maintenance allowance against and husband her father

Jurisdiction of Family Court

Scope and extent

Necessary parties to suit

Dower amount fixed was prompt and settled as Rs.60,000 out of which plaintiff was permitted to obtain the plot of five Marlas with one constructed room, transferred in her favour from father of husband on basis of an agreement, in lieu of dower amount of Rs.40,000, which for the remaining amount of Rs.20,000 four Tolas gold ornaments were to be delivered, which were handed over to her-- Question arose as to whether plaintiff could file suit against father of bridegroom for completion of contract executed by him for the payment of dower

Held, there was no bar or prohibition in the way of plaintiff in that regard, so as to impede the way of plaintiff from claiming the implementation and completion of the agreement

Family Court under S.5, West Pakistan Family Courts Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband only bridegroom/husband could be impleaded in the suit for recovery of dower and none else

If another person had stood surety or had guaranteed the payment of dower, he/she could lawfully be impleaded in the suit-Surety and guarantor to the dower were as much party and liable to pay dower as the bridegroom himself-Principles. The judgments referred by the learned counsel for respondents Nos.1 and 2 are distinguishable from the facts of the present case and the same are not relevant for decision of issues involved in case.

19. The pith of all the discussion made above is that this petition is allowed by modifying impugned judgment and decree of the learned Judge Family Court, Jand dated 22-7-2008 and by also modifying the impugned judgment and decree dated 27-11-2008 of the learned Additional District Judge, Attock Camp at Jand and it is declared that the petitioner would be entitled to the recovery of possession of 5 marlas of land, fully described in Column No.16 of the Nikahnama Exh.P.2 or in the alternative, the petitioner is entitled to recover price of the said land equivalent to its present market value from respondent No.1 to be determined by the executing court during execution proceedings. No order as to costs." Similar proposition has been resolved in a case reported as Khan Asadullah Khan and others v. Sheikh Islamud Din [PLD 1978 (Lahore) 711] in the following manner:- "

10. As regards the second question, Mulla in Principles of Mohammadan Law reproduces the definition of dower as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage" It has further been observed "if the dower is not paid, the wife, and after her death, her heirs, may sue for it" In Baillie's Digest of Mohammadan Law on the subject of disputes with regard to dower the following observations occur:- "Disputes regarding the dower may take place between the married parties themselves in their lifetime, or between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors."

11. In the Mohammadan Law of Inheritance by Almaric Russay on the subject of posthumous claims of dower it has been observed:- "It has been seen already that the right to dower is not extinguished by the death of husband or wife or both and it is in fact distinctly laid down that a claim of dower may be maintained by the wife against the husband's inheritors, by the wife's inheritors against the husband, or by the wife's inheritors against the husband's inheritors."

12. It is clear, therefore, that the right to sue survives the death and the heirs can continue the proceedings and their claim in the proceedings continues to be for the dower." Reliance may also be placed upon case reported as Muhammad Anwar Khan v. Sabia Khanam and another [PLD 2010 (Lahore) 119] wherein it has been held that:- "

10. In the present case, the Nikah Nama has not been signed by the petitioner No.1, but admittedly he was present at the time of Nikah and there is no evidence that the Nikah took place without his consent. It is common knowledge that at the time of Nikah in our society, the bridegroom has a passive rule, insofar as the answers to the questions in the Nikha Nama are concerned. Rather, the Nikah Nama is filled out with the consent and instructions of the respective fathers of the bridegroom and the bride or in their absence the respective elders of the two families.

11. In his cross-examination, the petitioner No.1 has not only admitted his presence at the time of his sons's Nikah on 6-8-2000 but has also admitted having knowledge of his house being written in the Nikah Nama as dower to respondent No.

1. While admitting having knowledge of his house being given as dower, the petitioner No.1 quite un-convincingly stated that he did object to the mention of his house as dower. It sounds inconceivable that the petitioner No.1 could not ensure the exclusion of his house as dower when it was being entered in Column Nos. 15 and 16 of the Nikah Nama. As such, the only inference one can draw is that the petitioner No.1 agreed to give his house as dower to respondent No. 1.

12. It is also to be noted that in spite of having knowledge that his house had been given as dower in the Nikah Nama dated 6-8-2000 the petitioner never took any steps to take any legal action for exclusion of the house from the Nikah Nama. In the circumstances, the petitioner did not object to his house being given as dower either at the time of Nikah or later till the suit by respondent No.1 was filed.

13. In view of the foregoing, I am of the view that the house mentioned in the Nikah Nama as dower for respondent No.2, even though, it did not belong to the husband of respondent No.1 is liable to be transferred to the respondent No.1 as the petitioner No.1 had given his consent for the same." Likewise, the apex Court of Pakistan in a case reported as Mst. Faqraz Bibi v. Elahi Bakhsh and 2 others [1994 SCMR 686] held that:- "The 'Nikah Nama' of the petitioner contained a clear entry with regard to the fact that the house in dispute was given to the petitioner by the father of bridegroom at the time of marriage of the petitioner and evidence on record clearly established that eversince the marriage of the petitioner she exercised full proprietary right over the house without any interference by respondents Nos. 1 and

2. It is also contended by the learned counsel that the respondent No.1, who was the previous owner of the house, had also signed 'Nikah Nama' of the petitioner in token of the confirmation of the stipulation contained in the 'Nikah Nama'. The contention raised by the learned counsel for the petitioner requires examination and we, accordingly, grant leave to appeal to consider the same."

12. By considering the overall circumstances of the case and evidence in view of principle laid down by the Superior Courts in the above cited case law, the findings recorded by the learned Judge Family Court, Muzaffarabad, while passing the impugned judgment and decree are result of misreading and non-reading of evidence, which clearly call for interference by this Court in the given circumstances and are liable to modified.

13. Be that as it may, appeal No.269 of 2022 filed by Ayesha Bostan is accepted and the impugned judgment and decree dated 30.09.2022 is hereby modified in terms that the plaintiff-appellant is entitled to receive plot bearing No.62-A measuring 05 Marlas situated in Mozia Maira Tannolian, Muzaffarabad, in lieu of dower so agreed between the parties in agreement dated 11.11.2010 and in alternative, she is entitled to receive the amount of the said land equivalent to its present market value from respondent. However, this option is left open for Executing Court to determine the present market value of the land in question during the execution proceedings whereas the Appeal No. 267 of 2023 filed by Mir Hussain, being devoid of merit, is hereby dismissed and consigned to record. A copy of this judgment shall be annexed along with the other relevant file. SA/45/HC(AJ&K) Order accordingly.