SAGHEER AHMED QADRI, J. --- Petitioner Mst. Humaira NOreen daughter of Muhammad Ghaffar (hereinafter called 'plaintiff) filed a suit before the learned Judge Family Court mentioning the facts that her date of birth was 1.1.1989 whereas respondent No. 3 Ali Akbar son of Ali Bahadur (hereinafter called defendant) was born in the year 1983; that out of the first wedlock between Mst. Ruqiya Begum and the defendant he had got four sons and one daughter; that the defendant divorced his first were in November, 2007; that subsequently defendant demanded the hand of the plaintiff through her maternal uncle but due to his old age and other factors her father showed some hesitation, however, the defendant assured that he would keep the plaintiff in a better manner; that he would never desert nor divorce her; that in case of Nikah with him, he would provide the plaintiff a house an Alto car, gold ornaments and in case of desertion would pay maintenance allowance of. Rs. 15,000/- per month; he would also pay Rs. 10,00,000/- and half of the portion of his landed property, in case of divorce; that on 20.2.2008 the defendant executed an Iqrarnama wherein all the above-mentioned conditions were recorded; that subsequently on 29.2.2008 the plaintiffs Nikah was performed with the defendant and the above-mentioned undertaking by the defendant was read over to her at the time of performance of the Nikah; that the defendant provided gold ornaments, Alto car as well as Rs. 25-/- as Haq Mehr to the plaintiff; the possession of the house was also delivered to her; that at the time of Nikah, Iqrarnama above-mentioned, although was submitted to the Nikah Registrar but he did not enter its contents in the Nikahnama as according to him it was recorded in detail and there was no space available on Nikahnama for recording these details; that subsequently the plaintiff started residing with the defendant, however, on 25.6.2009 the plaintiff went to her parents ' house alongwith the defendant; the defendant however on that evening left the plaintiff in her parents house, and subsequently informed that he had divorced her.
2. The plaintiff, in view of the Iqrarnama/undertaking given by the defendant, claimed that she had become owner of the house, car and half of the landed property owned by the defendant. She through this suit sought the issuance of decree for a declaration to the effect that she was entitled to retain the custody of the car as well as for the recovery of possession of 13 kanals and 14-1/2 marlas of land, the detail of which is given in the prayer clause. She also sought decree for recovery of gold ornaments and Rs. 10,00,000/- as agreed between the parties vide Iqrarnama/undertaking.
She further sought the relief that till the final disposal of the suit the defendant be restrained from claiming his ownership in respect of the property as well as the articles mentioned in the plaint.
3. Written statement was filed by the defendant wherein he raised five preliminary objections about the maintainability of the suit on the ground of non-binder of necessary parties, no locus standi to file the suit and deficient in Court-fee. On factual side, the defendant although did not deny the Nikah with the plaintiff however, he agitated that he did not execute the Iqrarnama/undertaking prior to Nikah, however he stated that it was got forcibly executed by the plaintiff subsequent to the divorce. It was further agitated that the plaintiff received all the Jahaiz articles and got Talaq from him; that with the assistance of her relatives she got forcible possession of the house as well as the car; that he had already paid whole of the dower to the plaintiff and divorced her Prayed that the suit be dismissed.
4. The learned Trial Court/Judge Family Court on the basis of objections raised by the defendant framed the following preliminary issue to ascertain the maintainability of the suit in the Court of Judge Family Court:-- Whether the instant suit is maintainable in Family Court? OPP
5. After hearing the arguments from both sides, the learned Trial Court vide impugned order dated 21.10.2009 decided the issue that as there was no mention about the Iqrarnama in any of the columns of the Nikahnama, therefore, the claim of the plaintiff could not be entertained by the Judge Family Court. It being a civil liability, therefore, in view of the valuation of the suit the plaintiff is liable to pay the Court-fee of Rs. 15,000/- on or before 28.10.2009, otherwise the plaint shall be rejected under Order VII, Rule 11, CPC.
6. Feeling aggrieved the plaintiff preferred an appeal against the order dated 28.10.2009 which was heard and decided by the learned Additional District Judge, who vide order dated 12.12.2009 while setting aside the impugned order remanded the matter to the learned Trial Court to examine the parties under Order 10, Rule 2, CPC to narrow down the controversy and further proceed in accordance with law. Feeling dissatisfied the plaintiff has preferred this writ petition.
7. Learned counsel for the petitioner-plaintiff argued that admittedly the plaintiff was married with defendant-respondent No. 3 vide Nikahnama dated 29.2.2008. He argued that in view of the peculiar circumstances of this case especially the age difference between the plaintiff and defendant as some reservations were shown by the plaintiffs father, therefore, the defendant executed the Iqrarnama dated 20.2.2008 wherein he undertook to provide the house, Alto car, gold ornaments we well as further undertook to provide maintenance allowance and half of the landed property in case of divorce. Learned counsel further argued that all these claims which the plaintiff sought to be redressed through filing of suit before the learned Judge Family Court clearly fall under the Schedule Part-I provided under Section 5 annexed with the Family Courts Act, 1964; that jurisdiction in these circumstances under Section 5 of the Family Courts Act, 1964 to dispose of these controversies lies with the Judge Family Court. Learned counsel argued that non-mentioning of all these conditions in the Nikahnama does not make any difference because it is a question of evidence to be held by both the sides to prove or disprove the claim; that the defendant in his written statement did not deny the execution of Iqrarnama dated 20.2.2008, however, he agitated that it was forcibly got executed by the plaintiff; that in these circumstances the suit clearly was triable by the Judge Family Court; that the learned Judge Family Court while disposing of issue No. 1 did not record any evidence and only on hearing the arguments decided issue No. 1 while the learned Appellate Court did not advert to these aspects and only remanded the matter to proceed, under Order 10, Rule 2, CPC to narrow down the controversy; that both the judgments passed by both the Courts below are illegal and non-exercise of jurisdiction vested on them. While relying on Syed Abbas Taqi Mehdi Vs. Mst. Sayeda Sabahat Batool and others (PLJ 2010 SC 891); Liaqat Ali Vs. Additional District Judge, Narowal and 2 others (1997 SCM R 1122); Mst. Zubaida Bibi and others Vs. Mst. Majidan and another (1994 SCM R 1978); Mst. Mumtaz Bibi alias Taj Khatoon Vs: Saifullah and 3 others (PLJ 2004 Lah. 26); Mst. Jameela Begum Vs. Addl. District Judge and 3 others (2005 M LD 376 (Lah.); Karachi Metropolitan Corporation, Karachi and another Vs. Raheel Ghayas and 3 others (PLD 2002 Supreme Court 446); Mst. Mussarat Bibi Vs. Shah Muhammad and another (PLJ 2006 Lah. 39); Asia Vs. Abdul Rehman's and another (1994 CLC 1388 (Lah.); Sifat Aizdi Vs. Dr. Saima Bashir (2009 CLJ 464); Mst Ghulam Shaheena Vs. Judge Family Court (2010 CLC 87 (Lah.); Mst. Ghulam Sakeena. Vs. Judge Family Court (2010 CLJ 402) and Liaquat All Vs. Additional District Judge, Narowal, etc. (1996 SCJ 431) and prayed that this writ petition be allowed.
8. Learned counsel for the defendant on the other hand opposed these arguments on the grounds that if the Nikahnama dated 29.2.2008 is seen in its columns Nos. 13 to 20 there was no mention about any Iqrarnama whatsoever nor any specific condition was recorded; that Nikahnama is the basic document to create any right and liability between husband and were; that the learned Trial Court rightly keeping in view the circumstances decided issue No. 1 against the plaintiff and directed her to pay a Court-fee of Rs. 15,000/- as it was a civil liability as the plaintiff was seeking declaration about ownership of property, recovery of different articles as well as landed property.
Prayed that this writ petition be dismissed.
9. I have heard the learned counsel for the parties and perused the record.
10. The plaintiff filed the instant suit before the Judge Family Court, Gujar Khan while mentioning the facts which have already been narrated in the earlier part of this judgment. She claimed that due to age difference between herself and the defendant in order to secure her future her father showed some reservations and the defendant executed Iqrarnama dated 20.2.2008. If the written statement filed by the defendant is seen he has not denied the execution of this document. He replied in pars No. 5 of the plaint as under:-- {{URDU TEXT}}owl/AIL (5)L,C5').4 t.1).1(4 Je LiVI 5/'21;" 5 J ILI. (314!
11. If Iqrarnama dated 20.2.2008 . Is seen allegedly the defendant undertook to provide a car, a house, gold ornaments, etc. As prompt dower to the plaintiff. He further undertook to provide maintenance allowance @ Rs. 15,000/- per month in case of desertion and in case of divorce half of the property as well as Rs. 10 lac.
12. Jurisdiction of Family Courts has been determined under Section 5 of the West Pakistan Family Courts Act, 1964, which reads as under:- "5. Jurisdiction. - [(1)] Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule."] (2) (3) If the Part-I of the Schedule under Section 5 of ibid is seen it provides:-
1.
2. Dower,
3. Maintenance,
4. 5. 6. 7.
8. Dowry
9.
13. According to the Schedule as mentioned above, the matters relating to dower, maintenance allowance, dowry as well as the personal property and belongings of were falls within the jurisdiction of Judge Family Courts constituted under Family Courts Act, 1964-. If the assertions made by the plaintiff are evaluated she in her suit claimed the maintenance allowance, dower, property allegedly mentioned in Iqrarnama dated 20.2.2008. No doubt none of these conditions are mentioned in the Nikahnama, but when the defendant himself admits the execution of Iqrarnama although under certain compulsions, even subsequent to the divorce, but it is a question of fact which is to be proved or disproved by the parties through the evidence.
14. In view of the circumstances both the Courts below i.e. Respondents Nos. 1 and 2 did not exercise the jurisdiction vested in them in accordance with law, rather it is a complete non-exercise of jurisdiction vested in both the Courts below. Hence while allowing this writ petition both the orders passed by the learned Trial Court dated 21.10.2009 and that of the learned Appellate Court dated 12.12.2009 are hereby set aside. The matter is remanded to the learned Trial Court to frame necessary issues out of pleadings of the parties including the issue of jurisdiction and dispose of the same after recording of evidence from both sides in accordance with law. No order as to costs.
Case remanded.
201.1 C.L.R. 208 [Rawalpindi] Present:,RAUF AHMED SHEIKH, J. Muhammad Arif and others Versus Feroz Khan and others Civil Revisions Nos. 624 and 625-D of 2001, decided on 20th December, 2010.
CONCLUSION
(1) Non-delivery of undivided share in the property would not render the Hibba-bil-Ewaz as invalid.
(a) "Hibba-bil-Ewaz", nature of transaction---`Hibba-bil-Ewaz' is equal to sale in the eyes of law..
(Para 7) Ref. 1985 SCM R 1131.
(b) `Hibba-bil-Ewaz'--- Khata---Non-delivery of undivided share---Effect--- The non-delivery of undivided share in the property would not render this hibba as invalid.
(Para 7) `HIBBA-BIL-EWAZ'---(Non-delivery of undivided share)
(c) Civil Procedure Code (V of 1908)- ---S. 115---Specific Relief Act, 1877, S. 42---Muhammadan Law by D.F. Mulla---Declaratory suit--- Controversy regarding Hibba-bil-Ewaz---Joint Khata---Plea of fraud etc.---Issues--- Appeliate Court below while reversing judgment/decree of Trial Court decreed the suit of respondent/plaintiff taking an exception to the alleged gift---Appreciation of evidence--Validity---In cross- examination the next friend of petitioner was asked if it was true that in fact it was a transaction of sale and was shown to be Hibba---Said DW replied in affirmative---Said suggestion complied with contents of previous plaint proved that it was a `Hibba-bil-Ewazi which was made for a sum of Rs.
300/---DWs/attesting witnesses of mutation (Exh) had categorically stated that .
Respondent/plaintiff had made Hibba in their presence, in favour of petitioner---It was not proved that land in question was mortgaged for a sum of Rs. 300/---Plaintiff/respondent made a hibba in favour of petitioner for consideration of Rs. 300/---Held further: That non-delivery of validated share in property would not reduce the said Hibba as invalid--- Appellate Court below committed material irregularity in reversing judgment of Trial Court due to misreading of oral as well documentary evidence available on record--Civil Revision petitions allowed.
(Paras 7,8)
Ref. 1985 SCM R 1131.
Key Terms:-- Hibba-bil-Ewaz.
[Non-delivery of undivided share in the property would not render Hibba-bil-Ewaz as invalid].
For the Petitioners: Malik Muhammad Kabir, Advocate. For the Respondents: Saeed Mahmood, Advocate. Date of hearing: 20th December, 2010.
RAUF AHMAD SHEIKH, J. --- Both these connected civil revisions are directed against the single judgment dated 14.9.2001, passed by Mushtaq Ahmad Tarar, learned Additional District Judge, Talagang, in two connected civil appeals, whereby the consolidated judgment and decree dated 16.11.1999 passed by the learned Civil Judge, Talagang were set aside and resultantly the suit filed by the respondent No. 1 was decreed, whereas the suit filed by the petitioner was dismissed.
2. The respondent No. 1 had filed a suit for declaration to the effect that mutation No. 242, dated 25.5.1992 on the basis of alleged hibba in respect of the land measuring 7 marlas fully described in the head note of the plaint is forged, fictitious, without knowledge, without consent, fraudulent and based on forgery and as such the same is void and liable of cancellation. As consequential relief it was prayed that defendants/petitioners be restrained from interfering in his possession over the disputed land. It was contended that the plaintiff/respondent No. 1 is owner of the disputed property and defendants/petitioners have no right over it. Neither the plaintiff/respondent is related to the defendants/petitioners nor they belong to one brethren. It was alleged that father and guardian-ad item of the minors without his knowledge. And consent got the impugned mutation attested in their favour and kept the matter secret from him and he attained the knowledge about the attestation of the mutation only on filing of the suit for partition by them. It is urged that neither any tibba' was made nor the possession was ever transferred and he had been defrauded due to his illiteracy. He further contended that he only puts the thumb impressions and does not know how to sign so his signatures on the mutations are forged.
3. The petitioners filed a suit for partition against the respondents contending that they are co- sharers to the extent of 7/29 shares in the joint khata and the respondents are in possession of more land than their entitlement. The learned Trial Court framed the following consolidated issues:-
(1) .Whether the father of defendant without notice to the plaintiff with fraud, male fide intention and mala fide got alienated in favour of defendants vide mutation No. 242, dated 24.5.1992? OPP (1-A) Whether the defendants are entitled to get possession to the extent of 7/29 share on partition? OPD
(2) If issue No 1 is proved whether plaintiff is entitled to get cancellation mutation No. 242, dated 24.51992? OPP
(3) Whether the suit is vexatious and frivolous and thus the defendants are entitled to special costs? OPD
(4) Whether the plaintiffs have no locus standi and cause of action? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is hit by the principle of res judicata and Order 2, Rule 2, CPC? OPD
(7) Relief.
4. After recording the evidence and hearing the arguments, learned Trial Court dismissed the suit filed by respondent No. 1, whereas the suit for partition filed by the petitioner was decreed. Through two separate appeals, the respondent No. 1 assailed the consolidated judgment and decree of the learned Trial Court before the learned Additional District Judge, Talagang, which resulted into impugned consolidated judgment and decree.
5. Learned counsel for the petitioners has contended that the learned Additional District Judge, fell in error due to misreading and non-reading of evidence and ignored the copy of plaint Ex.D-5, wherein the respondent No. 1 had admitted attestation of the mutation but had contended that it was for the mortgage. It was urged that the evidence on record proved that the disputed "Hibba- bil- Ewaz" so the non-delivery of possession was not a valid ground to non-suit the petitioners though the delivery of possession was also established on record. In support of his contentions raised reliance is placed on 1985 SCM R 1131 and 1996 CLC 1525.
6. Controverting these arguments, the learned counsel for the respondent No. 1 has contended that the learned Additional District Judge, rightly rectified the error committed by the learned Trial Court and took notice of the fact that neither the declaration for making hibba was made nor the possession was ever transferred. It is urged that even if alleged gift was in respect of undivided share in the property the same would be invalid due to non-delivery of possession. In support of, these contentions reliance is placed on 1980 CLC 1216.
7. The copy of the plaint in the previous suit filed by the respondent No 1, Ex.D-5 clearly shows that the plaintiff/respondent had contended that he had mortgaged the disputed property for a sum of Rs. 3,000/- and the next friend of petitioneri had got the mutation of hibba entered from the patwari through fraud. The first suit was withdrawn by the plaintiff/respondent No. 1. In the plaint of subsequent suit he did not make mention of said suit. In the cross-examination the next friend of the petitioners was asked if it was true that in fact it- was a transaction of sale and was shown to be hibba. He replied in the affirmative. This suggestion coupled with the contents of the previous plaint Ex.D-5 proves that this was a 'Hibba-bil-Ewaz' which was made for a sum of Rs. 3,000/-. DW- 2 and DW-3, who are attesting witnesses of the mutation Ex.P-1 have categorically ,stated that the plaintiff/respondent had made hibba in their presence in favour of the petitioners. The contents of mutation show that the respondent No. 1/plaintiff had transferred the land measuring 7 marlas through gift. His original contention as is evident from the copy of the plaint Ex.D-5 was that this transaction took place for a sum of Rs. 3,000/-. It is not proved that the land was mortgaged for a sum of Rs. 3,000/- so the evidence of DWs coupled with the contents of mutation has to be relied upon. It is thus obvious that the plaintiff/respondent made a hibba in favour of the petitioners for consideration of Rs. 3,000/-. This was "Hibba-bil-Ewaz", which is equal to sale in the eyes of law. In this regard reference is made to para No. 168 of the Principles of the Muhammadan Law.By D.F.
Mulla and reliance is placed on 1985 SCM R 1131 (Mst .Walayat Jan and another Vs. Muhammad Sharif and another). The contention of the respondent that he does not know how to make signatures is falsified from the documentary evidence available on record. The copy of sale-deed Ex.D-3 shows that he had put his signatures on it. Above all, he not only put signatures on the disputed mutation but also got his identity card number incorporated therein . His contention that the fraud has been committed with him, is thus false. DWs have stated that the plaintiff/respondent took 'the possession subsequently after institution of the suit. Even if for the sake of arguments, it is admitted that the possession was not delivered at the time of attestation of mutation, the transaction would not be void as making of Hibba-bil-Ewazi is proved in this case.
The non-delivery of undivided share in the property would not render this hibba as invalid. The learned Trial Court had appreciated the evidence properly and arrived at just conclusions. The learned Additional District Judge, committed material irregularity in reversing the judgment of learned Trial Court due to misreading of oral as well as documentary evidence available on the record.
8. For the reasons supra, both the civil revisions are accepted. The impugned judgment and decree passed by the learned Additional District Judge, are hereby set aside and the consolidated judgment and decree passed by the learned Trial Court are restored with costs throughout . Civil Revision . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.