2006 PLP 1525 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgments/orders dated 28-7-2001 and 23-12-2003 passed by the learned Civil Judge and the learned Additional District Judge, Mianwali, whereby petitioner's suit for declaration and her appeal were dismissed, respectively.

2. Succinctly, relevant facts are that the petitioner on 9-1-1995 filed a suit for declaration to the effect that she is owner of the suit property which included a house and agricultural land in village Kund and Chakrala Tehsil and District Mianwali, as widow of Abdul Khaliq deceased who was owner of these properties. She further pleaded that her husband Abdul Khaliq died on 13-7-1993 when she was away to Islamabad and in her absence, respondents Nos. l and 2 forcibly occupied the entire property of the deceased. According to her, respondents Nos.1 and 2 illegally got a succession certificate from the Court of the learned Senior Civil Judge, Mianwali without impleading the petitioner as party where, she has already moved for correction of succession certificate. It was further averred that the petitioner being widow of the deceased Abdul Khaliq was entitled to inherit 1/8th share, out of estate left by her husband. She also prayed a decree for permanent injunction as consequential relief against the respondents restraining them from alienating the property in its entirety as they have no such right, title or interest. Respondents refused to accept the petitioner as widow of Abdul Khaliq, which necessitated filing of suit by her.

3. Respondents being defendants in the suit, contested the same by filing their written statements wherein they pleaded that the petitioner was divorced by deceased Abdul Khaliq in the year 1990 and that she was not his widow at the time of his death and thus, was not entitled to inherit her estate. They further asserted that inheritance Mutation No.1018 sanctioned on 29-7-1993 was correctly attested and petitioner having not challenged the same through any appeal/revision or the succession certificate, issued on 14-10-1993, she was estopped from filing her suit. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the suit after framing of 9 issues put the parties to trial and required them to adduce their respective documentary/oral evidence, on the basis of which suit of the petitioner was dismissed, on account of findings on Issue No.2 against her. The trial Court answered all the other issues in favour of the petitioner vide judgment/decree dated 28-7-2001.

4. Petitioner aggrieved of the decision of the dismissal of her suit vide judgment/decree dated 28-7-2001 filed an appeal before the learned Additional District Judge, but remained unsuccessful, as her appeal was dismissed vide appellate judgment/decree, dated 23-12-2003. Appellate Court reversed findings of the trial Court on Issue No.2 by holding that the petitioner was widow of Abdul Khaliq deceased but her appeal was dismissed by reversing findings on other issues which were decided in favour of the petitioner by the trial Court. She thereafter, filed instant revision petition wherein respondents in response to notice by this Court, have appeared and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the petitioner regarding incompetence of the appellate Court to reverse the findings on the issues decided by the trial Court in favour of the petitioners, without filing any appeal or cross-objections did not impress me to upset the appellate judgment/decree on this sole ground. Undisputedly petitioner's suit was dismissed by the trial Court on the basis of its findings on Issue No.2 and decree of dismissal was assailed by the petitioner in appeal before the learned Additional District Judge. Under Order XLI, rule 22, C.P.C. any respondent who had not filed appeal from any part of the decree, could support the decree in his favour on any of the grounds decided against him in the Court below, besides filing cross-objections to the decree. The respondents could support the decree of dismissal of the trial Court by urging their cases on the other issues decided against them and law in this behalf has firmly been settled by this time, where under the appellate Court on the issues decided against the respondent by the trial Court, could maintain the decree of dismissal even by reversing findings on the issues decided in favour the appellant there. While forming this view I have to my credit judgments in the cases of Muhammad Nawaz v. Mst. Ahmad Bibi and 3 others 1995 SCMR 266; Khiarati and 4 others v. Aleem-ud-Din and another PLD 1973 SC 295; Muhammad Hussain Khan v. Said Muhammad Khan and 11 others PLD 1988 SC (AJ&K) 184; Munir Hussain and another v. Abdul Hamid 1995 MLD 1596 and Amir Bakhsh and another v. Muhammad Ramzan and 3 others 1990 MLD 245.

6. According to my examination of the file, the most crucial dispute was put to Issue No.2, which was framed by the trial Court, in the following form:-- Issue No.2 Whether the deceased Abdul Khaliq father of defendants Nos.1 and 2 divorced his wife in the year 1990 and suit is not maintainable? OPD-1 and 2.

7. This issue has been decided by the appellate Court in favour of the petitioner by returning findings that "Talaq-e-Bain" to the petitioner by the deceased Abdul Khaliq was not proved and other kinds of divorce namely "Talaq-e-Ahsan" and "Talaq-e-Hassan" were revocable within 90 days of pronouncement of those and the deceased having withdrawn notice of divorce from the Arbitration Council, divorce to the petitioner never became effective.

8. Under Muslim Law, contract of marriage can be dissolved, inter alia, by the husband at his will without intervention of a Court; by mutual consent of the spouse; by a judicial decree on a suit by any of the spouses. Divorce when proceeded from the side of the husband, it is called "Talaq" and when it is effected by mutual consent the same is called "Mubaraat" according to terms of contract between the spouses. For the purpose of instant suit divorce by "Talaq" has to be examined as to when and subject to what conditions the same becomes effective, severing the female from the tie of marriage. In this contract, it has to be kept in mind that "Talaq" may be oral or in writing and for pronouncement of oral "Talaq" no particular form of words are prescribed for its effectiveness but if words from the mouth of the husband are express or understandable employing the divorce, no proof of intention of husband is needed but if those are ambiguous then intention of the declarant has to be proved. In the case in hand "Talaq" was not oral but being in writing we have to restrict the same to this extent.

9. Coming to modes of "Talaq" it can be pronounced in 3 different manners i.e. by a single pronouncement made during a "Tuhrs" followed by abstinence from going to the wife to establish marital relationship, till the "Iddat" period and such Talaq/divorce is called "Talaq-e-Ahsan". Other method of pronouncement of divorce is three "Talaqs" by the husband during successive three "Tuhrs" without establishing physical relationship with the wife, in any of the 3 "Tuhrs" and this divorce is called "Talaq-e-Hasan". Third way of divorcing by the husband is through 3 pronouncements made during a single "Tuhr" either in one sentence i.e. "I divorce you thrice" or in separate sentences i.e. "I divorce you, I divorce you, I divorce you" or a single pronouncement made during a "Tuhr". clearly indicating an intention of irrevocability of the divorce i.e. "I divorce you irrevocably". Now we have to examine c revocability of the divorce pronounced by husband in any of the above three forms. "Talaq-e-Ahsan" becomes irrevocable/complete on expiry of Iddat period; "Talaq-e-Hasan" become irrevocable/complete on the third pronouncement irrespective of the Iddat period and "Talaq-e-Bain" becomes irrevocable immediately on its pronouncement, irrespective of the Iddat.

10. There is absolutely no evidence on the file of the instant case showing that deceased Abdul Khaliq had pronounced "Talaq-e-Bain" and respondent No.1 while appearing as D.W.1 did not depose that Abdul Khaliq deceased had pronounced irrevocable divorce or the same was pronounced thrice in one sitting. Petitioner produced a copy of letter of withdrawal of notice of divorce by deceased Abdul Khaliq and the same was tendered in evidence, as Exh.P.10, which clearly proved that Abdul Khaliq deceased, had not pronounced "Talaq-e-Bain" as he revoked it before the Arbitration Council, within a period of 90 days of the divorce. I have no ambiguity that both "Talaqs" i.e. "Ahsan" and "Hassan" were revocable according to the conditions discussed above, and the one given to the petitioner being either of these two, was correctly revoked by the deceased and the petitioner was his wedded wife at the time of his death. Looking from another angle the petitioner was admittedly married with Abdul Khaliq deceased and lived with him as his wife. In these peculiar circumstances it was for the respondents to prove that the petitioner was not widow of the deceased at the time of death of the propositus but respondents failed to discharge onus coming on their shoulders. Besides all this scan of appellate judgment and evidence on the file revealed that findings returned by the first Appellate Court on Issue No.2 are strictly in consonance with the evidence on the file and the law applicable.

11. Now after answering Issue No.2 in favour of the petitioner, point which hinged for determination was, whether the petitioner could be non-suited by reversing findings on Issues Nos.l, 3 to 8 given by the trial Court which might have been within the competence of the appellate Court as discussed above but I feel that once petitioner was held that she was widow of Abdul Khaliq deceased, she would be deemed to have inherited her "Sharai Share" the moment her husband breathed his last and she could not have been deprived her vested right of inheritance on E mere technicalities of not challenging the inheritance Mutation No.1018 dated 29-7-1993 by filing an appeal in revenue hierarchy because complicated questions of right of inheritance could not have been decided in summary proceedings of mutation. Similarly, her suit could not have been thrown out on any of the grounds of non-joinder of necessary parties, wrong narration of facts in the plaint or incorrect valuation of the suit. The petitioner had impleaded that all the parties to whom estate of her husband was distributed through Mutation No.1018 dated 29-7-1993 but in spite of it, provisions of Order I, rule 9, C.P.C. provided that no suit shall be defeated by mere reason of misjoinder or non-joinder of the parties, but it escaped notice of the appellate Court, likewise, the petitioner's suit could not have been dismissed without requiring her to make deficiency in court-fee, after determining its exact valuation for the purposes of court-fee and by requiring her to pay the court-fee of the specified amount. My answer to Issue No.7 is also in favour of the petitioner because, if she was owner of 1/8th share in the estate of Abdul Khaliq deceased, the same vested in her instantly on his death and if the same was sold by respondents Nos.1 and 2 to anybody else, without authorization that will have no legal value. This brings me to hold that the appellate judgment on issues Nos.1, 3 to 8 is not sustainable and findings on these issues given by the trial Court were erroneously reversed; but it.

12. For the reasons noted above, judgments/decrees dated 28-7-2001 and 23-12-2003 passed by the learned Civil Judge and the learned Additional District Judge, Mianwali being tainted with material irregularities/illegalities are not sustainable at law and deserved to be reversed, consequently instant revision petition is accepted with the result that findings on issue No.2 given by the appellate Court are maintained whereas its findings on Issues Nos.l, 3 to 8 are reversed and those by the trial Court being correct on these issues, are ordered to be revived, and consequently suit of the petitioner to the extent of her Sharai 1/8th share in the estate of Mian Abdul Khaliq deceased is decreed, with no order as to costs. M.H./Z-25/L??????????????????????????????????????????????????????????????????????????????????????? Petition allowed.