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.s*.•
IJIL
BEFORE THE PESHAWAR HIGH COU
ABBOTTABAD
W.P.
1. Liaqat Khan son of Abdul Aziz, Resident of Mc
Dheri Tatokar; Tehsil and DisttHari our
(Petitioner)
VERSUS
Mst Bakhat Bibi (Wakhat Bibi) Doughter of Riasat Khan.
Mst Haram Bibi (Minor) Doughter of Liaqat Khan ,Through
Respondent No .1 / mother Resident of village Gheba Tehsil and
Distt Haripur.
Additional District Judge-ui Haripur.
(Respondents) dtO be iru' EXAMINER
Peshawa( PETITION UNDER ARTICLE 199 OF THE
CONSTITUTION OF THE ISLAMIC REPUBLIC OF
PAKISTAN AGAINST THE CONSOLIDATED
JUDGMENT IN FAMILY APPEAL NO. 17/FA AND 07/FA
OF 2014 PASSED BY THE LEARNED ADDITIONAL
DISTRICT JUDGE III, HARIPUR, WHEREIN APPEAL
OF RESPONDENTS NO 1 &2 WAS PARTIALLY
ACCEPTED AND MODIFIED THE JUDGMENT AND
DECREE OF LEARNED FAMILY COURT HARIPUR TO
THE EXTENT OF RELIEF "ALIF" ,i.e THE VALUE OF
SUIT DOWER HOUSE i.e RS 99/- IS DECREED ,RELIEF
"DAAL" IS MODIFIED AND FURNITURE OR ITS
MARKET VALUE IS DECREED AND RELIEF "RAAY" IS
MODIFIED AND MAINTANCE ALLOWANCE OF
RESPONDENT NO 2 ,IS INCREASED FROM 5% PER
ANNAM TO 35% PER ANNUM.APPEAL OF PETITIONER
IS DISMISSED.
t
Judgment Sheet
IN THE PESHA WAR HIGH CC ABBOTTABAD BENCH.
JUDICIAL DEPAR TMENT
W.P.No.08-A/2016.
JUDGMENT
Date of hearing......06.11.2017..........................................................
Liaqat Khan by Ms. Sobia Gui, Advocate ...... ... ... ... .........
Bakht Bibi by Mr. Zafar Jqbal, Advocate. ...... ... ....
SYED ARSHAD ALL, J:- Through this single judgment,
two separate writ petitions bearing No. 8-A of 2017 and
274-A of 2016 are intended to be disposed of as both the
petitions are between the same parties and are the outcome
of single judgment and decree. Through writ petition No.
8-A/20 16, petitioner Liaqat Khan seeks constitutional
jurisdiction of this court with the prayer:-
"On acceptance of this writ petition for the i?edtobe True copy declaration to the effect that the impugned
EXAMINER
05 DEC consolidate judgment and decrees dated 14.10.2015 in Family appeal No. 17/17A passed by learned respondent No. 3, to the
Peshawar High above mentioned extent and dismissal of petitioner 's appeal are wrong, illegal, against the law ard facts, arbitrary, fanctful, perverse, without lawful authority, without jurisdiction, based on no evidence, ultra vires, hence liable to be struck down"1
While through writ petition No. 274-Al
2016, petitioner Mst. Bakht Bibi prays that:-
"Under the circumstances, it is respectfully prayed that on acceptance of the instant writ
7
petition the impugnedjudgments and decrees of respondent No. 2 & 3 may kindly be modmed and suit of the petitioner be kindly accepted as prayed for. Any other relief which this court may deem fit in the interest of justice may kindly be granted to the petitioner."
2. Brief but essential facts of the case are that
Mst. Bakht Bibi alias Wakht Bibi (hereafter referred to as
plaintiff) filed Family Suit No. 125/17C of 2011 against
Liaqat Khan (hereinafter referred to as defendant) for:-
"A: Possession of dowered house detailed in the heading ofpiaint. B: Recovery of 08 tolas gold ornaments as dower or market value thereof along with Rs. 4990 1/- cash amount ofremaining dower. C. Recovery of 05 tolas gold ornaments belonging to plaintiff as her dowry. D: Recovery of dowry articles as per list annexed with the plaint or market value thereof E. Recovery of maintenance allowancó of plaint ?ff No. 1 from September, 2007 till institution of suit at the rate of Rs. 2000/- per month and future maintenance allowance at the rate of Rs. 4000/- per month. F: Recovery of Rs. 35000/- as expenses incurred upon birth of minor plainiWNo. 2. G. Recovery of maintenance allowance of minor plaint jff No. 2 at the rate of Rs. 5000/-per month from her birth i.e. 22.04.2011 till institution of the suit and future maintenance at the rate of Rs. 7000/- per month.
According to averments of plaint, the marriage
between the parties was solemnized in the year 2007 in lieu
7
of dower of Rs. 50,000/- out of which against Rs. 99/- half
share in the house was transferred to the plaintiff. Besides,
it was also said that 08 tolas gold ornaments would
4,
3
additionally be given to her, which are still outstanding. At
the time of Rukhsati, the parents of the plaintiff also gave
dowry articles according to the list along with 5 tolas gold
ornaments which are in possession of the defendant. Soon
after the marriage, the defendant started torturing the
plaintiff and after six months of the marriage, she was
expelled from the house of the defendant. Resultantly,
plaintiff instituted suit No. 227/FC which was later on
withdrawn on the basis of compromise. After that, the
plaintiff rehabilitated with the defendant, however, the
defendant failed to change his attitude and on 26th July,
2010, the defendant and his mother severely tortured her and
expelled her from the house. During the desertion, minor
plaintiff No. 2 was born and the entire expenses of her birth
met out by the parents of plaintiff. The defendant
neither paid any attention nor provided any maintenance.
Thereafter the plaintiff along with minor daughter is living
with her parents and the defendant has refused to accept her
claim.
3. The learned trial Court summoned the
defendant who appeared and contested the suit by filing
his written statement wherein he not only controyerted the
averments of plaint but claimed that the dower of the
dto be True Co EXAMINER
Q5 BEG ZUll
Peshawar
plaintiff was paid and the dowry articles were also taken
51
back by the father of the plaintiff. He ftirther asserted that
minor is not his sibling and that he had divorced the
plaintiff. l'he learned Family Judge, after framing issues
and recording pro and contra evidence, passed following
decree in favour of the plaintiff:-
"Prayer AIjf Stands dismissed.
Prayer Bay: Stands decreed to the extent of Rs. 49901/-, while to the extent of dowered properly stands dismissed.
Prayer Jeem: Stands dismissed
Prayer Daai: Apart from already received items, claim of plaint ¶ No. I stands decreed to the extent ofwashing machine, Dv with its trolley and refrigerator.
Prayer Ha Stands decreed to the extent of maintenance allowance
EXAMIN Rs. 2000/- from September, 2007 till 28.07.2008 and at the same rate from
5 DEc 20 26.07.2010 till expiration of Iddat W&HjQh Cnn,*q'1.,
period.
Prayer K/ta: Stands decreed to the extent of Rs. 15000/-.
Prayer Rey: Stands decreed to the extent of Rs. 2000/- per month from birth of plaintiff No. 2 i.e. 22.04.2011 till today, and onwards @ Rs. 3 000/-per month with 5 % annual increase in future till getting married.
Rest of the claim stands dismissed"
4. Both the parties assailed the judgment and decree
of learned Family Judge, Abbottabad through separate
appeals No. 07ff C and 17/17C of 2015 before the learned
hi
District Judge, Haripur which were entrusted to learned
ADJ-III, Haripur for disposal. The learned Additional
District Judge-Ill, Haripur, vide his consolidated judgment
dated 14.10.2015 decided both the appeals in the
following manner:-
"In the light of my above detailed
issue-wise discussion, appeal No. 1 7/FC
titled Mst Bakht Bibi Vs Liaqat Khan is
partillay accepted by deciding issue No. 2
and additional issue in positive and issue No.
12 in negative, impugnedjudgment an decree
of learned judge Family Court is moc4fied to
the extent of
Relief Aif i.e. the value of suit dower house i.e. Rs. 99/-is decreed Relief Daal is modjfIed and plaintiff/appellant is also entitled for dowry furniture or its market value. Relief Ray is also modified and future maintenance allowance of plaint ?ff No. 2/appe1nat NO. 2 is hereby increased from 05 % per annum to 35% per annum. Rest of the prayer in appeal No. I 7/FA stand dismissed with no order as to costs."
Feeling dissatisfied, the parties have filed subject
writ petitions.
4KI.NS. The controversy between the parties before this
Court can be narrowed down to the following issues:-
i. Whether the learned appellate Court has rightly
granted the value of Rs. 99/- in lieu of the dowered
house?
no
Whether the learned appellate court has rightly
disbelieved the relinquishment deed dated
26.07.2008, despite the fact that the defendant has
produced the scribe, marginal witnesses and the
notary public, who attested the said deed?
Whether the findings of both the Courts below while
granting maintenance, dowry articles, expenses to the
plaintiff, are correct?
Whether the increase of 35 % per annum amount
granted to the minor by the learned appellate court is
correct?
6. To address the first question, this Court noted that
the dower was initially fixed in the Nikah Nama as Rs.
50,000/- and 08 tolas gold ornaments and details of the
entire dower have been provided in deeds No. 1532 and
1533 dated 09.02.2007. The execution of Nikah Nama and
DEC 2Uyj o deeds have not been denied by both the parties. The
deed No. 1534 dated 09.02.2007, exhibited as Ex PW-1/1
shows that defendant has undertaken to pay an amount of
Rs. 2000/- as maintenance to the plaintiff, whereas deed No.
1533 Ex PW- 1/2 mentiorthe detail of the dower. According
to this deed, the defendant has given half of the house in lieu
of the aforesaid agreed dower to the plaintiff. However,
valuation for the purpose of execution of stamp paper and
further proceedings was fixed as Rs. 99/-. The learned trial
Court while relying and believing in the documents Ex DW-
1/2 dated 26.08.2008, whereby wife has allegedly received
7
30 tolas gold ornaments, has dismissed the claim of the
plaintiff for dower, whereas learned appellate court while
disbelieving agreement deed dated 26.08.2008 has
allowed/decreed the dower amount as mentioned in Ex PW-
1/2, however, has misconstrued the contents of Ex PW- 1/2.
According to this document Ex PW-1/2, the husband has
transferred his share (half of the house) to the plaintiff in
lieu of the dower i.e. Rs. 50,000/- and 08 tolas gold
ornaments, however, at the bottoffi of the deed a value of Rs.
99/- has been given for the purpose of execution of the deed.
The same appears to avoid the consequences of the
7EL-
to Copy compulsory registration as under the provision of Transfer
Act and Registration Act, a deed whereby the
property valuing more than Rs. 100/- is transferred, is
compulsorily registrable. However, it is eyident from the
deed Ex PW-1/2 that half of the house was given to the wife
in lieu of the dower. The learned appellate Court instead of
decreeing the half of the dower house or its market value,
has decreed an amount of Rs. 99/- as the value of the house..
If the interpretation of the appellate Court is accepted then
the same would deprive the wife from her dower which has
been agreed in unequiVocal terms. 1-lence, the only
interpretation, discernable from the bare reading of Nikab
Nama and Ex PW-1/2 is that the husband has agreed to
transfer the half of the house to the wife in lieu of dower.
Hence findings of the learned appellate Court are not
sustainable and accordingly modified to the effect that wife
is entitled to half of the house mentioned in Ex PW-1/2 or
its market value.
I Now moving the seco'd question, whether the wife
has received 30 tolas gold ornaments in lieu of dower house
and has acknowledge the return of furniture to her father.
Perusal of this deed would show that this deed was
witnessed by Ghulam Raza and Jaffar Iqbal and was also
Certi duly notarized by Jjaz Hussain Shah Advocate as Notary
EXAM! Qt0beecopy
Public. The defendant in order to prove this deed has not
05 DEc 2077 Jnly produced the marginal witnesses Jaffar lqbal and
Ghulam Raza as DW-1 and DW-2, but has also produced
Notary Public Ijaz 1-lussain Shah Advocate as CW-1. The
/ scribe of the deed Abid Habib was also produced as DW-1.
From examination and cross examination of the said
witnesses, one can come to the conclusion that despite the
fact that spouses were not in good terms and were litigating
against each other, the wife was not identified by any male
member, i.e. father or brother who are alive. Even CNIC
number of the wife has not been mentioned in the deed. It is
by now sealed principle of law that in cases in which
executant of the document is a Parda Nasheen or illiterate
9
woman notwithstanding the fact that she is knowing to the
beneficiary of the documents and if she denies the execution
of the document, the burden is on the beneficiary to establish
the execution of the document. Although the defendant has
produced all the witnesses relating to the documents but
from perusal of their testimonies, the identity that it was the
plaintiff who signed the documents, is doubtful. Indeed the
identification of a Parda Nasheen or illiterate woman while
executing the document must be established beyond doubt
and court must be vigilant in taking extra care to ascertain
the genuineness of such document. In our society the Parda
Tr Copy T asheen lady does not on her own executes the document EXAMINE
05 DEC. 2 17 elating to her valuable rights unless accompanied by the
PeshawarHihc,t ale member of her family. Even otherwise, from the close Ithorjyprj II..a_
perusal of the testimony of the marginal witnesses and the
Notary Public, it could not be established that 30 tolas gold
ornaments were received by the plaintiff. It is not the
execution of the document which would per-se establish the
contents and transaction mentioned in the document but the
contents/transaction qua payment of consideration of the
document has to be independently established in case the
executor denies the same. Hence the document dated
26.07.2008 and its contents have been rightly disbelieved by
the appellate Court. In "Khawas Khan V. Shabbir
10
Hussain Shah (2004 SCMR 1259)" the august Supreme
Court held:-
"In case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution ofsaid document that the Pardanasheen lady understood the terms of the deed and the deed was read over and explained to her. This Court has also time and again held that in case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed."
EXAMft4ER Copy Similarly, in "Ghulam Muhammad V.
05 DEC2, k Farooq Ahmed and others (2002 SCMR 1801)" it was
k held:-
"It has been held by the superior Courts consistently that in the case of illeterate and Pardanashin lady, the Court should be very careful in recording findings as to the execution of any agreement by her jf she had challenge the same on the ground that it had been obtainedfrom her by fraud."
This view was re-affirmed by the
honourable Supreme Court in "Arshad Khan V. Mst.
Resham Jan and others (2005 SCMR 1589)" in the
manner:-
"This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the
ii
transaction as envisaged in Article 127 of Qanun-e-Shahadat 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of properly of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence."
In "Abdul Hameed through L.Rs and others
V. Shamsuddin and others (PLO 2008 Supreme Court
140)" it has been held:-
____________ "In the present case, Mst Halima Bai died
ertifietobeTrne Copy before she appeared in the witness box and EXAMINER none of the two marginal witnesses of the •
U b DEC ithi V sale-deed namely Qazi Mumtaz Ahmed and Qazi Ijaz Ahmed were produced to prove the execution of sale-deed dated 26-2-1969 and the genuineness of transaction of sale in favour of Abdul flamed. The sole statement made by Abdul Hameed, vendee, on oath who was the beneficiary of the transaction, that Ivlst. Halima Jiai, his maternal grandmother having sold the property for valuable consideration, executed the sale-deed of her free wil4 could not be considered sufficient in the facts of the present case to prove the willingness ofMst Halima Baifor transfer of the property and genuineness of the registered sale-deed dated 26-2-1969. The legal character of the document of title must be established through the independent evidence and Courts in such cases ofdoubtful character, must be extra careful to ascertain the genuineness of transaction. The first appellate Court as well as the I-ugh Court in second appeal after detail scrutiny of evidence, have concurrently held thcr% the genuineness of sale allegedly executed by
12
Ms/i Halima Bai was not proved and notwithstanding the presumption of correctness attached with the registered sale- deed, the same being of disputed character, would not be ipso facto considered a valid document of title. Learned counsel for the petitioners without satisfring us that the concurrent findings of two Courts on a pure question offact were suffe ringfrom any legal or factual infirmity, made an attempt to convince us that Ms/i Feroza Khanum having purchased the property in goodfaith, derived title free of any legal defect. We are afraid. Mst. Feroza Khanum having stepped into the shoes ofAbdul Hameed, who was not a lawful owner of the Property, would not get a' better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for
ertifiecl to be True Cooy interference. The petitioners have not EXAMINER claimed the benefit of section 41 of the
05 DEC 17 Transfer of Property Act and rightly so because Ms/i Feroza Khanum, their
Peshawar High Couct4 predecessor-in-interest having the ulhorized Under Sc: 75 Eyj4Q knowledge of dispute of title of property
between Ms/i Halima liai and Abdul I-lamed purchased the same and notwithstanding the fact that petitioners were in continuous possession of the property as owner, they by efflux of time would not be able to improve their title."
5. Now coming to the third issue, perusal of the
judgment of the learned appellate Court shows that while
arriving to the conclusion, whereby the learned appellate
Court has maintained the findings of the learned trial Court
regarding the expenses incurred on the birth of the child,
maintenance of the wife, and further allowing dowry
13
furniture or its market value to the plaintiff, are based on
correct appreciation of evidence. The same findings are
neither perverse nor the; learned counsel appearing on
behalf of petitioner could point out any misreading or non
reading of evidence by both the Courts below, hence do
not call for any interference by this Court in its
constitutional jurisdiction. It is settled law that concurrent
findings of both the courts below cannot be interfered with
by the 1-ugh Court in its constitutional jurisdiction even if
the same appears to be erroneous, unless the said findings
are based either on no evidence or misreading of evidence.
Lastly coffling to the enhancement of
maintenance of Rs. 3000/- allowed/decreed for the minor.
The learned trial Court has allowed Rs. 3000/- per month
as maintenance for minor with 5% increase per annum, A
4' whereas learned appellate Court in the impugned
judgment hand decree has enhanced the increase of 5% per
annum to 35% per annum, however, the learned appellate
Court has given no reason for the said increase. Neither
the circumstances for the said increase nor financial
position of the defendant/husband has been considered.
Normally, the Courts allow 10 to 15 % increase on the
principle amount of maintenance, keeping in view
be
inflation and financial position. In the circumstances 15 %
14
increase would be sufficient to meet the requirement of the
child. Hence the findings/decree of the learned appellate
Court whereby it has allowed 35 % per annum is modified
and the decree is reduced to 15 % increase per annum on
theprinciple amount of Rs. 3000/- granted as maintenance
for the minor.
7. With these observations, the instant writ petitions
are disposed of accordingly.
Announced Dt06.I1.2017. JUDGE
ertlned to be Tru EXA MINER
I-n I 05 DCL tO
Peshawar High Cou4 Ithorized Under Sc: 7'5Ev
AJtab/
Justice Sycd Ar.shad .4/i