1983 PLP 467 (SCMR)

ANWARUL HAQ, J.‑The dispute in this case concerns an area of agricultural land measuring 270 kanals and 17 marlas situate in village Khudai in Tehsil and District Muzaffargarh. By a registered deed dated the 25th of April, 1950, the land was gifted by the petitioner in favour of his wife Mst. Khudijatul Kubra. The necessary mutation was attested on the 31st of May, 1951. However, the petitioner revoked the gift by another deed registered on the 16th of December, 1953. A mutation was again entered and attested, but later on it was cancelled. The respondent's wife filed a suit on the 2nd of February, 1972 for a declaration that she was the owner of the property in dispute end that the cancellation of the gift in her favour by the present petitioner was inoperative and void against her rights. She also prayed for possession of the property. The suit was decreed in favour of the respondent on the 2nd of September, 1964. The petitioner's appeal was dismissed by the learned District Judge on the 28th of September, 1964 and his second appeal has also been dismissed by the High Court on 19‑5‑1975. The petitioner now seeks special leave to appeal. The petitioner had resisted the respondent's suit on several grounds, including the contention that at the time of her marriage with the petitioner the respondent was already married to one Ghulam Qadir, and as such her marriage with the petitioner was void, and she was not entitled to any dower or gift in lieu thereof. This plea was repelled by the Courts below and it was held that the respondent was validly married to the petitioner, that the gift was not the result of any fraud and misrepresentation on the part of the plaintiff or her father, and that even though the petitioner had not parted with the physical possession of the land, yet this was not a necessary requirement on account of the merital relationship between the donor and the donee. In the High Court, new grounds were raised on behalf of the petitioner, namely, that as the husband and wife had never lived together, therefore, physical delivery of possession of the gifted property was necessary; that the plaintiff being a minor, aged about 13 years, at the time of her marriage with the petitioner, the marriage was invalid in view of the prohibition contained in the Child Marriage Restraint Act, and that in any case the suit was barred by limitation under Article 120 of the Schedule to the Limitation Act. The High Court has held that it was a case of transfer of immovable property in lieu of part of dower and, therefore, it was not necessary to complete the transaction by delivery of possession, and that the alienation could not be revoked under any principle of lam, since the property had vested the plaintiff on the date of the execution of the transfer deed. The High Court has further observed that the point about the marriage being contrary to the provisions of the Child Marriage Restraint Act was not taken before the Courts below, but even otherwise it would invalidate the marriage or the settlement made thereunder. As to the question of limitation, the High Court has found that the suit for possession was fully within twelve years of the execution of the transfer deed. On these findings the High Court has concluded that the deed of revocation executed by the petitioner was clearly ineffective since the petitioner had no right left in the property and as such he could not deal with it. Sh. Muhammad Shall, learned counsel for the petitioner, seeks leave to appeal on the following grounds :‑ (a) That as the marriage was not consummated and had in fact been repudiated by the husband, and no dower having been fixed at the time of the Nikah but only fifteen days thereafter, the wife was not entitled to any dower or any gift in lieu thereof; and (b) That in the alternative if it be found that the amount of dower was fixed at the time of the Nikah, then the respondent would be entitled to only half the amount on account of non‑consummation of the marriage. We find that these questions were not raised in any of the Courts below. The learned counsel, however, submits that these being pure questions of law could be permitted to be raised at any stage, and that there are precedents when this Court has allowed this to be done. It is true that this Court has, on certain occasions allowed questions of law to be raised for the first time, but the questions now agitated before us on behalf of the petitioner, also involve determination of certain factual controversies, namely, whether the marriage was ever consummated and whether any dower was fixed at the time of the Nikah. We consider that to permit such questions to be raised at this stage would seriously prejudice the respondent, who is a lady and has been pursuing this litigation now for nearly fourteen years. We would accordingly refuse permission to agitate these fresh questions which were not taken in any of the Courts below. As the learned counsel has no other point to raise, the petition fails and is hereby dismissed. Petition dismissed.