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Regular Second Appeal No. 382 of 1980, decided on 2nd April, 1983.

‑ Dower‑Validity of giving landed property in lieu of dower‑Wife claiming suit land transferred to her by husband in lieu of dower at time of marriage‑Husband also seeking. declaration that his Nikah never took place and deed of Nikah forged‑Husband's suit dismissed and appellate Count dismissing appeal .with observation that wife's deferred dower charge on land in dispute ‑‑Appellant's suit for declara tion and possession of land in dispute on basis of gift from husband decreed‑Wife alleging appellant obtaining decree by fraud and misrepresentation‑Wife's suit against alleged donee and purchasers of part of land in dispute, decreed he solo‑Additional District Judge dismissing joint appeal in respect of present appellant but accepting it in respect of purchasers‑Wife filing cross‑objections for decree in entirety in her favour‑Held, observation of lower appellate Court in husband's appeal that wife's deferred dower charge on land in dispute, cannot be read or treated as finding of Court‑Held further, giving of landed property as dower perfectly legal and valid in Islam and wife's right to claim such property constituting deferred dower cannot be defeated by disposing of contracted landed property by husband.

Holy Quran, Surah Nisa, 4.20, 4.24 and Sar Anjam Khan v. Mir Afzal Khan and others P L D 1972 Pesh. 37 ref.

Abdur Rehman Khan v. Mi. Inayat Bibi and others A I R 1931 Qudh 63 distinguished.

‑ S. 52‑Alienation by gift during pendency of appeal‑ Applicabi lity of doctrine of lis pendens to‑Suit against husband filed by wife on 7th November, 1969 decided on 28th April, 1970‑Husband's suit against wife dismissed aged his appeal failing on 17th December, 1969‑Appellant's suit against husband regarding same property decreed by latter's consent on 14th November, 1069‑"Consent given during pendency of husband's appeal and wife's suit ‑ Both suits not collusive‑Held, appeal continuation of suit itself and husband not permitted to alienate pendente lire, property in question through gift. ‑[Muhammadan Law].

Muhammad Hanif and another v. Kharait Ali and others A I R 1941 Pat. 577 rel.

Hazara Singh v. Bube Khan and others A I R 1922 Lab. 403‑69 I C 698 and Bhag v. Ujagar Singh and others 96 1 C 450 distinguished.

‑‑‑‑ S. 7‑‑Absence of vendor's vested right in property sold‑Effect of‑‑Vendees (purchasers) claiming part of land on basis of bona fide purchase from husband for valuable consideration‑Entire land already transferred by husband to wife in lieu of dower‑Held, in circumstances vendor (husband) not vested with any right in property sold and none stood conveyed to vendees (purchasers).

M. Aftab Iqbal Ch, for Appellant.

Raja Muhammad Sabir for Respondent No. 1.

Dates of hearing : 20th and 26th March, 1983.

Briefly stated, the salient features of the controversy subject‑matter of this second appeal are that Mst. Bilqis Begum, respondent No., 1, filed originally a suit for declaration with permanent injunction as consequential relief. The appellant took a preliminary objection as to the maintainability of the suit in a declaratory form and vide order dated 23rd June, 1972 the respondent‑plaintiff was allowed to amend the plaint in the light of the observation made. In the amended plaint filed, Mst. Bilqis Begum, respondent‑plaintiff, claimed that Ghulam Muhammad, the then defendant No.1 (now deceased) had transferred 164 Kanals 5 marlas (the suit land) in lieu of dower at the time of marriage. Ghulam Muhammad deceased husband had also filed a declaratory suit against her. In this suit Ghulam Muhammad had asserted that his Nikah with Mst. Bilqis Begum had never taken place nor he had given his consent to any such Nikah, and despite that a deed of Nikah was forged showing Mst. Bilqis as his wife with a vie to deprive him of his landed property measuring 20 acres which was state to have been given in dower by him to Mst. Bilqis Begum and that he eras not bound by this deed of Nikah nor by the transfer of his land which was otherwise violative of the provisions of Martial Law Regulations 64 and 64‑A. This suit was dismissed and the appeal also failed vide judgment dated 17th December, 1969. It may appropriately be noted at this stage that while dealing with issue No. 4, framed with reference to the plea as to violation of Martial Law Regulations, it was observed by the appellate Court as under in the judgment dated 17th December, 1969 (Exh. P. 4/A):‑

"In this context, reference to the nikahnama Exh. D. 1 is necessary. This deed niter alia recites the sum of Rs. 20,000 as the deferred dower which has been fixed in lieu of 164 kanals 3 marlas of land, belonging to the plaintiff‑appellant. It is scarcely necessary for rue to state that if the dower clauses are read together, the amount of deferred dower at the best constitutes a charge on the aforesaid area of land belonging to the plaintiff appellant. For, the deferred dower is recoverable only on dissolution of marriage, death or, by divorce and until these two contingencies happen the wife has no right in the property to be given in lieu of deferred dower. Nothing is well -settled than this that a charge does not create any right itself but given rise only to a right of payment out of the property specified. Understood in this sense the provisions of Martial Law Regulations Nos. 64 and 64‑A do not stand contravened."

To complete the history of previous suits, it may also be stated that Salehon had filed a suit for declaration and possession with the assertion, that the land in dispute had been gifted to him by Ghulam Muhammad, the deceased husband. The said suit was decreed on 14th November, 1969. Mst. Bilqis Begum asserted is the present suit that this decree No. 731/69 dated 14th November, 1969 was obtained by Salehon by fraud and mis representation and was, as such, ineffective against her rights. She further asserted that she filed a suit on 7th November, 1969 for a declaration and permanent injunction against Ghulam Muhammad her husband and as per statement given by aforesaid Ghulam ,Muhammad, a decree dated 28th April, 1970 (Exh. P. 2) to the effect that Bilqis Begum was the absolute owner of the land in dispute with the consequential relief that Ghulam Muhammad, defendant, shall not interfere in the possession of Mst. Bilqis Begum, plaintiff, was granted. With these averments, the present suit was filed on 13th July, 1970 and Ali Ahmad and Sultan. (respondents) were impleaded as defendants as they alleged that vide mutation No. 95 dated 5th August, 1969 (Exh. D. 4) and mutation No. 104, dated 29th September, 1969 (Exh. D. 3), they had also purchased a part of the land in dispute.

2. The learned trial Court on the basis of the pleadings of the parties, framed issues and after recording evidence decreed the suit of the plaintiff‑respondent in Toro. On appeal filed jointly by the Salehon, the alleged donee of the entire land in dispute and Ali Ahmad and Sultan, the alleged purchasers of a part of the land in dispute, the learned Additional District Judge vide his judgment and decree dated 30th March, 1980 dismissed the appeal of Salehon, appellant, but accepted the appeal in respect of Sultan and Ali Ahmad, respondents. To their extent, the appeal was accepted as' he came to the conclusion that the sale of 19 kanals of land by Ghulam Muhammad in their favour was protected as they were bona fide purchasers. Salehon, appellant, has challenged the decrees of both the Courts below in this second appeal.

3. Mst. Bilqis Begum, respondent, has filed cross‑objections with the prayer that the judgment and decree appealed against to the extent that it went in favour of Sultan and Ali Ahmad; respondents, be set aside thereby decreeing the suit of the plaintiff‑respondent No. 1 in its entirety.

4. Before examining the submissions of the parties on merits, it is appropriate to note that under issues Nos. 1 and 2.both the Courts below returned the finding that the plaintiff had become owner of the suit property on 28th April, 1970 under the decree of the Court and that suit land was given to the plaintiff‑respondent in lieu of dower: The other observations made in the judgment further show that the learned appellate Court was of the view that as per judgment (Exh. P. 4/A) the. dower amounting to Rs. 20,000 was a charge on the property of Ghulam Muhammad deceased defendant, and that Ghulam Muhammad after losing in his suit vide judg ment dated 17th December. 1969 (Exh. P. 4/A) decided to compromise with the anew situation and thus consented to the passing of the decree dated 28th April, 1970. It will be noted that treating Rs. 20,000 as a average, the learned lower appellate Court allowed the appeal of the purchasers as according to him they being the bona fide purchasers were‑protected.

As regards the issue whether the decree dated 14th November, 1969 was void, fraudulent and ineffective against the plaintiff, it was held that the same was hit by the provisions of section 52 of the Transfer of Property Act as the consent decree was passed after institution of the suit decreed, vide Exh. P. 2 and that the said suit was not collusive because the suit was earlier contested as Ghulam Muhammad had applied for setting aside the ex pane proceedings. It is apparent from Exh D. 7, that Ghulam Muhammad had also applied for setting aside the order of ex parts pro ceedings (Exh. D. 5) passed against him This application was, in fact, accepted vide order, Exh. D. 6. Thereafter, a compromise between the parties resulting in passing of the consent decree (Exh. P. 2) was arrived at, may be for the reason that Ghulam Muhammad had, by then, lost his appeal on 17th Dec‑ember, 1969 filed against the decree of dismissal of his suit.

5. Learned counsel for the appellant in support of the appeal argued that‑

(i) decree dated 17th December, 1969 (Exh. P. 4/A) holds the field despite decree dated.28th April, 1970 (Exh. P. 2) and as under the said decree only a charge was created, Ghulam Muhammad was free and entitled to make a gift;

(ii) decree dated 28th April, 1970(Exh. P.2) and not the decree No. 731 dated 14th November, 1969 obtained by Salehon appellant was hit by the principle of lis pendins;

(iii) decree (Exh. P. 2) having bees passed by a Court which lacked Jurisdiction in the matter was void ab initio and, as such was ineffective as against the right through gift of the 'land in dispute ;

(iv) decree (Exh. P. 2) was passed in an incompetent suit and the appel lant was entitled to challenge the validity of the decree (Exh. P. 2) in the present suit itself without filing a separate suit, and

(v) respondent‑plaintiff had no locus standi to challenge the decree dated 14th November, 1969 granted to the appellant as Ghulam Muhammad had not challenged the same in his lifetime.

6. The submission that as per judgment (Exh. P. 4/A) dated 17th December, 1969, Mst. Bilqis Begum, respondent, had held merely a charge on the suit land, is based on the observations made in the said judgment which have been quoted in para. 1 above. In my view, the said observations cannot be read or grated as the finding of the Court. It was a mere observation made in the judgment dated 17th December, 1969. The question whether the relevant entries of the Nikahnama bad the effect of creating a mere charge on the property of Ghulam Muhammad, was neither in issue near directly ear indirectly the said question came up for determination of the said Court. The learned Additional District Judge in the aforesaid judgment while dealing with the question of violation of the provisions of M. L. Rs. 64 and 64‑A, made the aforequoted observations and, as such, these observations are of no value, so far as the question involved in this appeal is concerned. Columns Nos. 13 to 17 of Nikahnama (Exh. P. 3) read as under :

The dispute sought to be raised by producing the Secretary of the Union Council and others to show that there was some interpolation in these entries, is inconsequential. Salehon, appellant, for that matter, cannot challenge these entries. These entries coupled with the stand taken by Ghulam Muhammad even in the first suit culminating into the judgment (Exh. P. 4/A), shows that vide Nikahnama (Exh. P. 3), the land in question was given as dower, Even in this suit Ghulam, Muhammad appeared in witness‑box and accepted having given the land in dower. The giving of landed property as a dower is perfectly valid and legal in Islam. Surah Nisa (4.24) reads as under ;‑

"Also (prohibited are) women already married, except those whom your right hands possess. Thus hash Allah ordained (prohibitions) against you; Except for these, all others are lawful; provided you seek (them in marriage) with gifts from your property. desiring chastity, not lust. Seeing that ye derive benefit from them, give them their dowers (at least) as prescribed ; but if, after a dower is prescribed, ye agree mutually (to vary it), there is no blame on you. And Allah is All‑Knowing, All‑Wise." Then at another place, the Holy Quran says‑

"But if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, take not the least bit of it back. Would ye take it by slander and a manifest wrong. " (Surah Nisa 4.20).

The concept of dower came under consideration in Sar Anam Khan v. Mir Afzal Khan and others (P L D 1972 Pesh. 37) before a Division Bench of the Peshawar High Court and after study of the case-law as well as treatises on Muslim Law, it was observed as under ‑‑

"Conceptually, the dower is paid by the husband to the wife, firstly to acquire religious merit, and secondly, to discharge an obligation or duty towards the wife. This is way, in common parlance, we call it 'Haq‑e‑Mehr.' It, therefore, seems that dower cannot be called hiba- bil‑ewaz; without doing violence to the institution. There is a misnomer. That the dower is an obligation for the wife's consent to Nikah is apparent from the fact, that it may become due in certain cases, even without consummation. It is payable even if, it has not been specified at the time of Nikah and, further, it is payable to the wife herself. To call an obligation a 'bibs' is, therefore. traversity of truth. . What can form the subject‑matter of dower, will appear from the following quotation of the Muhammadan Law by Syed Ameer Ali, Vol. II, P. 380; Anything over which dominion or the right of property may be exercised, or anything. which may to reduced into possession, either in present or in future, anything, in fact, which cornea within the meaning of the word mal, and has a value may according to the Hanafi doctrines, form the subject of dower. 'Anything', says the Fatawa‑i‑Alamgiri, 'that is cal' or property, and has a tangible value, is a valid subject for dower.' Munafa (profits accruing from land, investments, business, industry etc.), may also form subject of dower, exempting the man's own service, if he is a free man. If he marry, stipulating to render his own services to his wife in her of dower, the marriage would be valid, but the woman would be entitled to the customary dower. To similar effect but more unequivocal are the observations in the Digest of Muhammadan Law by Baillie at p. 94, i.e. when something is mention ed as dower which is not in existence at the time, as for instance, the future produce .of certain trees, or of certain land, or the gains of a slave, the assignment is bad, and the woman is entitled to her proper dower. So also when something is mentioned which is not at the time property in all respects, as, for instance, what may be in the wombs of his flocks, or of his female slave, at the time, the assign ment is not valid, and the wife is entitled to her proper dower. It, therefore, appears that the mere right to appropriate produce from a certain land till the lifetime of the wife, cannot be a subject‑matter of the dower. This is certainly a contradiction in terms that though some specified land was being given in dower as 'Haq‑e‑Mehr'; yet the wife could only enjoy it till her lifetime or remarriage. Rather such inconsistent conditions in their nature smack of wagering which as is well‑known, is a taboo in the religion of Islam.. Therefore, the payment of dower is an obligation under the nikah and for this very reason, it cannot be qualified with the duration of the marriage. It becomes due in full amount, no sooner the marriage is consummat ed. If a life estate or a limited estate could be created, it will, no doubt, be hard upon the wife or her heirs, if she dies soon after the consummation of the marriage, and pari passu upon the husband and his heirs, if they are to be kept out of possession for a long time. It will also incidentally go against the principle that dower. is an amount specified or determined by Misal."

It is thus obvious that land could be given in dower and land having been so given, vested in Bilqis Begum. Even if the land in question was given as deferred dower, still the said land could not be dealt with by Ghulam Muhammad in a manner which will result in defeating the wife's right to the deferred dower. It will, therefore, be seen that the right to claim the property constituting the deferred dower cannot defeated by the husband by disposing of the contracted landed property The legal result of the above findings is obvious I.e. the gift, if at all made by Ghulam Muhammad in favour of Salehon, appellant, was inconsequential as he did not possess any right in the lands given in dower. In case the property was constituting the deferred dower, even then the same could not be disposed of or alienated in contravention of the prior contract entered into by Ghulam Muhammad.

Reliance of the learned counsel for the appellant on Abdur Rehman Khan v. Mt. Inayati Bibi and others (1) in support of the plea that claim for dower is a simple money claim and cannot be charged against any specific portions of husband's property, does not apply in the instant case as in that case dower was fixed in cash originally and then it was asserted that gift was made to the wife of a four‑anna share in Mauna Manjharia in lieu of Its. 20,000. out of the dower debt. Moreover, the view taken in Peshawar case being consistent with the injunctions of the Holy Quran is to be preferred as against the view taken in the Oudh case.

7. Salehon, appellant himself did not set up the consent decree dated 14th November, 1969 as basis of leis rights in the land in dispute in the written statement dated 12th December, 1972 filed jointly with the purchasers Sultan and Ali Ahmad as well as in the written statement filed separately. 4n the other hand, he in the written statement accepted the sales allegedly made of the part of the land in dispute to Sultan and Ali Ahmad. Then sales, as per mutations produced, were prior in time to the consent decree passed in favour of Salehon. In view of this, his gift of the entire property falls down according to his own pleadings Again; neither the decree dated 14th November, 1969 nor the alleged statement made by Ghulam Muhammad consenting to the decree nor the pleadings were brought on record. Learned counsel for the appellant submitted that it was not the duty of the appellant to bring these documents on record and that as the decree was being challenged by the respondent‑ plaintiff, she should have produced these documents. His submission was that the said decree having been admitted in the plaint, the said admission was sufficient for furnishing him locus standi to attack the: decree dated 28th April, 1970 as well as the decree passed in the instant: suit. This line of argument will obviously not help the appellant. The fact that a decree was obtained, was only accepted. Moreover in view of the fact that Ghulam Muhammad, the deceased husband, who was made. a defendant, had himself appeared in the witness‑box to depose that he never appeared in any suit of Salehon and he never consented to any such decree, the onus of issue Na 3 shifted on to the appellant and it was then for him to show that the decree obtained by him was neither void nor fraudulent nor ineffective as against the rights of respondent‑plaintiff. The appellant having neither produced the relevant pleadings nor the. decree itself nor having relied on the said decree in the pleadings of the present suit, cannot successfully meet the case of the plaintiff that the said. decree was fraudulent and ineffective. In. the absence of these documents and the pleadings. learned counsel for the appellant cannot succeed in his plea that the decree dated 28th April, 1970 was hit by the principles of res judicata or lis pendens. Again, in the absence of these documents and pleadings it cannot be urged with success that a right had accrued to Salehon appellant prior to the institution of suit No. 706/69 (decided vide decree Exh. P. 2) and that the said right so accruing could not be defeated under the said decree without impleading Salebon. The plea that the land was gifted to Salehon under the Muslim Law, cannot also be accepted as on the record except for the bald statement of the appellant that he was gifted the land, no other evidence is forthcoming. Moreover, the plea that the gift was made under Muslim Law is not made out merely because Salehon in his statement stated that Ghulam Muhammad made the gift in lieu of services rendered to him. The gift under ordinary law can also .be made for services rendered. The gift under Muslim Law has to be proved by producing evidence in respect of the three essential ingredients recognized by the Muslim Law. The gift; as such, was not established on record.

8. Coming to the applicability of section 52 of the Transfer of Property Act, it will be seen that the suit filed by Ghulam Muhammad, Jal which property in question was also the subject‑matter of the suit, w g dismissed on 8th September, 1969 and the appeal was decided on l7th December 1969. The principle of lis pendens extends right upto the conclusion of the litigation including the appellate stages and the execution proceedings. It was so held in Muhammad Hanif and another v. Kharait Ali and others (A I R .1941 Pat. 577). Again, Suit No.' 706 of 1969 was filed on 7th November, 1969 and was decided on 28th April, 1970. Decree No: 731 of 196 was passed on 14th November, 1969 on the basis of the consent allegedly given by Ghulam Muhammad. This consent admittedly was given, if a all, during the pendency of the appeal (which is in law a continuation o the suit itself), of Ghulam Muhammad, as well as during the Pendency o the suit filed by Mst. Bilqis Begum against Ghulam Muhammad. Ghulam Muhammad, therefore, in view of the principle contained in section 5 of the Transfer of Property Act could not be permitted to consent to the alienation through gift of the; property in question as the alienation pendente lite are not to be allowed to prevail. Salehon neither in his pleadings nor in his statement gave any date on which the land' in dispute was gifted to him. He, however, conceded in his statement that the sales in favour of respondents, Sultan and Ali Ahmad, were prior to his gift. These sales were given effect to by mutations dated 5th August, 1969 and 29th September, 1969, meaning thereby that the gift, if at all made, was made after 29th September, 1969 and prior to the institution of the suit or the decree dated 14th November, 1969. The earlier suit filed by Ghulam Muhammad was dismissed on 8th September, 1969. The gift thus was made during the pendency of the suit files by Ghulam Muhammad which under no stretch of imagination can be said to be collusive. Moreover, the suit filed by Mst. Bilqis Begum on 7th November, 1969 was also not collusive as is apparent from the conduct of Ghulam Muhammad exhibited by hotly contesting the ex' parte order passed against him. The learned lower appellate Court was also right in observing that after losing his suit finally in appeal on 17th December, 1969, he reconciled with the situation and in these circumstances, consented to the suit filed by his wife, Mst. Bilqis Begum, and‑ thus the consent decree dated 28th April, 1970 (Exh.‑P. 2) was passed. In this view of the matter, the judgments to the case Hazara Singh v. Bube Khan and others (A I R 1922 Lah. 403=69 I C 698) and Bhag v. Ujagar Singh and others (96 I C 450 ) are distinguishable on facts and hence the rule laid down therein does not apply to the instant case.

9. The challenge made to the decree dated 28th April, 1970 is rendered inconsequential in view of the finding recorded by me that the land in dispute vested in Mst. Bilqis Begum, plaintiff-respondent, as the same was given to her in lieu of dower. Even otherwise the objections taken against the decree dated 28th April, 1970 are without merit. No doubt under section 44 of the Evidence Act it is open to the appellant to assail a decree on three grounds alone, namely, jurisdiction, fraud and collusion, but none of these grounds is available to the appellant in this case. The assertion that the decree (Exh. P. 2) was without jurisdiction and nullity in law was based on the plea that the land having been claimed in lieu of dower in the said suit, the same in view of provisions of section 5 read with Schedule of the West Pakistan Family Courts Act, 1964, was to be entertained and decided by a Judge, Family Court and not by a Civil Judge. This objection is being taken for the first time in the second appeal, without showing that the learned Judge who entertained the said suit or passed the decree was not a Judge Family Court. It is a common knowledge that the Civil Judges have been nominated as the Judges Family Courts. Learned counsel in case he wanted to succeed its this objection should have produced the relevant notification for showing that the learned Civil Judge, who dealt with the case and passed the decree was not a Judge Family Court. Moreover, this objection cannot be raised in the absence of the plaint filed by the plaintiff. The decree (Exh. P. 2) shows that a declaration with consequential relief was prayed. What was the basis of the claim made is not discernible from the said decree. In the absence of the said document it cannot be said that the decree was passed by the Civil Judge who had no jurisdiction in the matter. As regards fraud and collusion; the finding was against the appellant and this aspect of the case has been discussed above in detail and the plea has already been rejected.

10. The other objection that the suit was not competent in the form in which it was filed, can also not be taken in the absence of the requisite documents. Moreover on the objection as to the form of the suit, a decree cannot be collaterally challenged. Again the failure of Ghulam Muhammad to challenge the decree dated 14th November, 1969 in his lifetime by filing an independent suit cannot be made a basis for refusing relief to the plaintiff respondent. In fact: slue was the aggrieved party as the land in question had been given to her already Thus, she had the necessary locus stands to file the suit.

11. Now, the cross‑objections filed by the respondent may be taken up. In the written statement filed, the plea taken was than Sultan and Ali Ahmad respondents had purchased 19 kanals out of the land in dispute. In the suit Ali Ahmad while appearing as D.W.5 deposed that he and his brother Sultan purchased 12 kanals 13 manias and 15 kanals 16 marlas of land. This will amount to 38 kanals 9 marlas; In this, he was supported by Muhammad Hayat D.W. 4. Apparently, this was contrary to the case set up in the written statement. Learned lower Appellate Court dismissed the suit to the extent of 19 kanals observing that the respondents were bona fide purchasers for value. Assuming that they had purchased the property for valuable consideration in a bona fide manner, yet can the date they were sold the said property, the seller, namely, Ghulam Muhammad, was not vested with any rights in the property. It is well‑established that a person can transfer only that which he himself possesses. If Ghulam Muhammad was not possessed of any right, none stood conveyed to these respondents. This being the position the suit of the plaintiff‑respondent was erroneously dismissed to the extent of Ali Ahmad and Sultan, respondents.

12. The net result of the above discussion is that the appeal of Salehon, appellant, is dismissed. The cross‑objection of the respondent plaintiff are accepted with the result that the suit of the plaintiff shall stand decreed in toto. The appellant shall also bear the costs, throughout.

K M. A. Appeal dismissed and cross‑objection accepted.

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