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Civil Appeal No. 5‑P of 1967, decided on 18th March 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 24th June 1966, in Regular First Appeal No. 6 of 1964).

Muhammadan Law‑Dower‑As‑Sum'at, principle of.

The principle of As‑Sum at recognizes that when a real dower has been fixed privately, but publicly a second dower is fixed in inflated amount for enhancement of the prestige of the family of the bridegroom or for its glorification and the intention was never to enforce the publicly fixed dower then the dower payable is that which was fixed privately. It is stated in Fatawa‑i‑Alamgiri.

" If a man were to marry a woman for a certain sadak (dower) settled privately and announced a large amount in public ( FIL-ILANIA ) the subject assumes two aspects; first when a dower is settled in private, and the parties then enter into the contract (of marriage) in public for a large amount; if the dower agreed to in public is of the same nature (Jins) as that settled privately, the difference being only in respect of the one stated in public being more than the one settled in private, and the parties are agreed in its settlement (viz., the private arrangement), or the man has called evidence to prove against her (the woman) or her guardian (if she be a minor) that the dower was that specified (AL-MUSMA) privately and the larger amount was Sumat (for glori fication), in that case the dower will be that which was settled in private. If, however, they differ as to the amount settled privately, and the man alleges that it was 1,000 (Dirhems) and the woman denies that amount, her allegation will be accepted, and the dower will be that specified in the contract, unless the husband can adduce proof (of his allegation)."

Where there is no averment of any privately fixed dower, which is essential for the application of the principle of As‑Sum'at, the dower publicly announced and evidenced by a registered deed would be accepted and sections 91 and 92 of the Evidence Act, 1872 would render oral evidence to prove dower to be a fictitious one inadmissible.

Muhammadan Law by Syed Ameer Ali, p. 426 and Fatawa‑i -Alamgiri ref.

Sheikh Bashir Ahmad, Senior Advocate Supreme Court (Nasir Ahmad, Advocate Supreme Court with him) instructed by Abdul Samad Khan, Attorney for Appellant.

Peer Bakhsh Khan, Advocate Supreme Court instructed by Nazar and Waheed, Attorneys for Respondent.

Date of hearing: 18th March 1969.

---This appeal was heard in part on the 4th March 1968, and adjourned sine die to await the decision of the Chief Land Commissioner regarding the validity under Martial Law Regulation No. 64 of the transfer of suit land measuring 280 Kanals by the appellant to the respondent in lieu of dower.

Since then the Chief Land Commissioner has found the transfer to be valid and his order has been brought under challenge by the appellant before the High Court in writ jurisdic tion. The main objection to the transfer in question has thus disappeared.

The question which remains for determination is the alleged fictitious nature of the transfer. The Courts below have after considering the evidence led by the parties held : (i) that the transaction evidenced by a registered deed was not fictitious and was intended to be acted upon; and (ii) that no undue influence was brought to bear upon the appellant to render the transfer void under section 16 of the Contract Act. Oral evidence led by the appellant consisting of his own statement as D. W. 5 and Mian Syed Ahmad Shah (D. W. 6) was ruled out on the view that sections 91 and 92 of the Evidence Act rendered it inadmissible.

In the appeal to the High Court it was contended by the appellant that the fictitious nature of the transfer was to be adjudged in accordance with the rule of Muslim law notwithstand ing the bar contained in sections 91 and 92 of the Evidence Act to the effect that where the terms of a contract or of a grant or any other disposition have been reduced to the form of a docu ment no evidence shall be given in proof of the terms of such contract, grant or disposition except the document itself and that no evidence of any oral agreement or statement shall be admitted as between the parties for the purpose of contradicting, varying, adding to or substracting from its terms.

The principle of As‑Sum'at on which the appellant relied recognizes that when a real dower has been fixed privately, but publicly a second dower is fixed in inflated amount for enhance ment of the prestige of the family of the bridegroom or for its glorification and the intention was never to enforce the publicly fixed dower then the dower payable is that which was fixed privately. In considering the application of this principle the learned Judges referred to Muhammadan Law by Syed Ameer Ali at page 416 wherein the following discussion appears :‑

"As‑Sum'at (Al), according to the Farhang, means literally a public announcement of something with the object of self‑glorification. "In the language of law" it means a dower announced to the public with the same object. The Shara'ya ud‑Islam briefly states the Shiah doctrine that in such cases the private arrangement will constitute the lawful dower."

Reference was also made to the following enunciation in Fatawa‑i -Alamgiri :‑

"If a man were to marry a woman for a certain Sadak (dower) settled privately and announce a large amount in public the subject assumes two aspects : first when a dower is settled in private, and the parties then either into the con tract (of marriage) in public for a large amount; if the dower agreed to in public is of the same nature (Dins) as that settled privately, the difference being only in respect of the one stated in public being more than the one settled in private, and the parties are agreed in its settlement (viz., the private arrange ment), or the man has called evidence to prove against her (the woman) or her guardian (if she be a minor) that the dower was that specified (I) privately and the larger amount was sum'at (for glorification), in that case the dower will be that which was settled in private. If, however, they differ as to the amount settled privately, and the man alleges that it was 1,000 (dirhems) and the woman denies that amount, her allegation will be accepted, and the dower will be that specified in the contract, unless the husband can adduce proof (of his allegation)."

It was noticed that in the written statement filed by the appellant there was no averment of any privately fixed dower which is essential for the application of the principle of As‑sum'at. The evidence led in support of the alleged fictitious nature of the dower was also found to be contradictory and rejected concurrently by the Courts below. The appellant deposed that he was informed by Mian Syed Ahmad Shah who negotiated, the marriage on his behalf with the father of the respondent that 70 jaribs of land will be the dower and he hesitatingly agreed to it when the latter gave assurance to him that dower would never be demanded or recovered from him. On the other hand Mian Syed Ahmad Shah stated that the settlement of dower was made in his presence between the appellant and the father of the respondent in the aforesaid terms. From this state of pleadings and the evidence led by the appellant the learned Judges in concurrence with the trial Court concluded that the transfer of the suit land in favour of the respondent was not a fictitious transaction, that it was intended to be acted upon and that no case of undue influence made out.

Having perused that record and heard Sheikh Bashir Ahmad we find that dower deed executed by the appellant in favour of the respondent whereby he transferred 70 jaribs of land to the latter was not a fictitious transaction nor was the deed executed under undue influence. Further as seen the doctrine of As‑sum'at was not attracted and the provisions of sections 91 and 92 of the Evidence Act rendered the oral evidence led by the appellant about the fictitious nature of the dower inadmissible.

In this view the appeal is wholly devoid of merit and we dismiss it with costs.

K. B. A.

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