Syed MUKHTAR HUSSAIN SHAH vs Mst. SABA IMTIAZ and others

ORDER

' MIAN SAQIB NISAR, J.---The appellant(husband) married respondent No.1(wife) on 2-3-1996, but divorced her on 29-6-2003; she on 17-7-2003 instituted a suit before the Family Court for the recovery of. An amount of Rs.100,000 on the basis of entry in Nikahnama and also a stipulation in an agreement dated .1-5-1997 between the parties to the effect that, in case of divorce by the appellant to the respondent, the former shall be obliged to pay the aforesaid amount as damages to the lady. This is so, particularly stated in the noted agreement. The suit, after the contest and trial, was decreed by the Judge, Family Court on 12-6-2007. The appeal of the appellant failed on 27-3-2008 and his constitutional petition was disallowed by the High Court vide order dated 8-7- 2008.

' Leave to appeal, in this case, was granted on 22-10-2008 in the following terms:-- "After hearing the learned counsel and respondent No.1 in person, we grant leave to appeal in view of the case Muhammad Bashir Ali Siddique v. Sarwar Jehan Begum (2008 SCMR 186) to consider the question whether the condition of payment of sum of Rs.100,000 by the petitioner (husband) in the event of giving divorce to the respondent (wife) as stipulated in the Nikahnama was a valid one and recoverable by filing a suit before a Family Court and to resolve the conflict of judgments of the Lahore High Court in the cases of Nasrullah v. District Judge (PLD 2004 Lahore 588) and Muhammad Akram v. Hajra Bibi (PLD 2007 Lahore 515).

' Since short points are involved, the office is directed to fix the main appeal for hearing, on the present record, within a period of six months. Meanwhile, the injunctive order dated 30th September, 2008 already passed by this Court shall continue in operation."

2. Learned counsel for the appellant has placed reliance on the case reported as Muhammad Bashir Ali Siddique v. Sarwar Jehan Begum (2008 SCMR 186) to argue that, such a contract/stipulation which circumvent the right of the husband to divorce his wife, being against the right of a man conferred by Shariah, and the public policy is void and it cannot be legally enforced. He has also argued that, the Family Court had no jurisdiction to entertain the suit of the respondent for such a claim; in this behalf reference has been made to section 5 of the Family Courts Act, 1964 (the Act) and Entry No.9 of the schedule thereto. It is submitted that the law laid down in Nasrullah v. District Judge (PLD 2004 Lahore 588), is not the correct exposition of the law and has heavily placed reliance on the contra dictum Muhammad Akram v. Mst. Hajra Bibi and 2 others (PLD 2007 Lah. 515) in support of this contention.

3. Heard. We have deemed proper to decide this matter in the terms whether the family Court has jurisdiction to entertain and adjudicate the claim of the respondent/plaintiff and not on account of the noted judgment of the Supreme Court. In this regard, it is specified that the Act is a special law which is meant to cater for a specific object and special kind of cases strictly covered by the items mentioned in the schedule thereto. It is settled law that the civil courts are the courts of inherent and plenary jurisdiction competent to adjudicate all the disputes of the civil nature between the litigating parties. However, such jurisdiction stands ousted in terms of section 9, C.P.C., either expressly or by necessarily implication. But in order to evaluate whether such jurisdiction has been taken away, the special law under which it is so done, must not only be strictly constructed but also be accordingly applied. Therefore, if in the above context the provision of section 5 of the Act are read with the entries of the schedule, there shall be no confusion or ambiguity about the cases falling within items Nos.1 to 8 thereto. Entry No.9, which has been incorporated in the original schedule, by way of an amendment through Ordinance No.LV of 2002 reads as:"personal property and belonging of the wife" and while considering and interpreting this (entry) for the purposes of jurisdiction in the case (Nasrullah supra) having almost the same facts and the claim, it has been held:-- "Now the said condition by all means vests the respondent lady with a right to bring an action against the petitioner to claim the said amount upon proof that she was divorced without any reason attributable to her. This being so, the respondent lady is vested with a right of action or what is termed as "actionable claim" in the Transfer of Property Act, 1882. Now the moment the said condition becomes operative the petitioner became indebted to the respondent in the said amount. Even if such debt or beneficial interest so accruing is conditional or contingent, falls within the meaning of actionable claim which is a property and transferable as such. In my humble opinion claim of respondent wife to the said amount accruing to her upon an unjustified divorce by all means a property and clearly falls within Item No.9 of the Schedule read with section 5 of Family Courts Act, 1964."

' Whereas, in the, other judgment from the Lahore jurisdiction i.e. Muhammad Akram (supra), the proposition has been dealt conversely in the following manner:- "As regards the question, whether the suit is competent before the Family Court, it is the case of respondent No.1, and also held by the learned Additional District Judge that the matter falls within the Entry No.9 of the Schedule to section 5, i.e. "personal property and belonging of the wife". I feel amazed to note as to how the amount of Rs.1,00,000 allegedly payable by the petitioner on account of the divorce or bad relations between the, parties, is the 'personal property or belonging of respondent No.1, so as' to bring the case within the jurisdiction of the Family Court. Such personal property or belonging referred to in Entry No.9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by the husband, such as her clothes, ornaments and items of personal use and nature, this may also include anything which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives. But definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and she only has a claim to recover from the husband on the basis of any special condition incorporated in the Nikahnama. I am not convinced by the argument that the amount in question is covered under the rules of actionable claims as envisaged by section 130 of the Transfer of Property Act, 1882. The term "actionable claim" in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to section 3 of the Transfer of Property Act, a claim towards a debt. On account of both the meanings such claim cannot be equated as a "personal property and belonging of the wife."

Resultantly, in my considered view, the family Court has no jurisdiction in the matter and the suit in this behalf before the said Court was not competent."

4. In both the afore-mentioned conflicting legal opinions, the key proposition is about the applicability or otherwise of the term/concept "actionable claim". In one judgment, it has been strenuously relied upon and used as foundational for the interpretation of Entry No.9, while in the other it is completely discarded. Therefore, in order to resolve the matter, it seems expedient to ascertain, what is the true connotation of the said expression, in its general terms; as defined in section 3 of the TPA and the application of this definition for the interpretation of the said entry.

Besides it is also important to dilate-upon and express if the definition provided by a statute can be resorted to for the interpretation of another statute, though in the latter there is no mention or reference of such a definition or the expression at all.

5. In the above context, firstly I shall embark on to find out if such a concept is available in foreign legal systems. In English and American jurisprudence the concept "actionable claim" as such, is not prescribed or provided; but to an extent it may be equated with their terms i.e. "chooses in action" or "chooses of action". Therefore, it shall be germane and significant to comprehend as to what does that mean. In Words and Phrases, permanent edition, it is propounded that the words "chooses of action" mean nothing more and can have no broader signification than the words "rights of action" which in other word means as a personal right not reduced into possession but recoverable by a law suit.

' According to Halsbury's Law of England fourth edition "the expression 'choose in action' or 'thing in action' in the literal sense means a thing recoverable by action as contrasted with a chose in possession, which is a thing of which a person may have not only the ownership but also the physical possession". The meaning of the expression is also used to describe all personal rights of property which can only be claimed or enforced by an action, and not by taking physical possession. In English Law, as per classification the "chooses in action" are of two kinds, 'legal chooses in action' and 'equitable chooses in action' the former are those which could be recovered and/or enforced by an action at law, as for instance a debt, bill of exchange, or a claim on an insurance policy etc, whereas the equitable choose of action though again enforceable through the process of Courts, but in connection with the rights, share or interest relating to partnership, trust funds, legacy, under the will, right of the mortgagee to any surplus proceeds of the sale etc. However the subject matter, in both the categories of actions aforementioned (the suit) which may even be for the recovery of a "debt", by itself shall not be the personal property of the claimants until and unless the claim in the legal action has been allowed by the Court and a decree to that effect has been passed. It is thus clear from the preceding discussion that for interpreting the entry no help can be drawn from the foreign concept.

6. In our county, the noted term has not been provided in the Family Courts Act, 1964. It is also not defined in the General Clauses Act, 1897, which is the law applicable to all central legislations and is meant for the interpretation and provides guiding principles thereof, unless in a specific statute itself the provisions are available to supply the interpretative guidance to that legislation. It may be pertinent to mention here that some Parliaments of the world do pass one Act that is meant to provide definitions that are to be read into most other statutes. An Act of this nature is known as Interpretation Act and our General Clause Act in some ways resemble thereto. But as mentioned earlier' the expression 'actionable claim' is.Not defined therein, which could buttress for such an interpretation.

7. The only statute in which the definition of "actionable claim" has been provided is the TPA and it reads as:-- "Actionable claim " means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession either actual or constructive, of the claimant, which the Civil Court recognize as affording grounds for relief, whether such debt or beneficial interest be existence, accruing conditional or contingent."

'It is settled law that definition clause or a section in a statute is meant generally to declare what certain words or expressions used in that statute shall mean, the obvious object of such a clause is to avoid the necessity of frequent repetition in describing all the subject matter to which the word or expression so defined is intended to apply. It is a rule of interpretation of laws that when a word/expression is given a definite meaning in one Act of Parliament (statute) it does not mean that it shall ipso facto have the same meaning in another Act of the Parliament, except in the cases in which Parliament has declared that two or more Acts be read together as one Act, or where on the rule/principle of legislation by reference, a definition of any earlier law may be borrowed or adopted as the definition for constructing the operative provisions of the later law. A definition thus appearing in one Act cannot be used to interpret the same word appearing in another Act, until it is specifically so referred and borrowed with a clear command of law. Because, the context, the purpose, the object and the requirements of every statute may vary from other; the definition of a word from one statute can not be safely imported to another, which if so resorted to without ascertaining the clear intention of the legislation by following the rules of interpretation, just as a matter of routine and course, it shall not only be hazardous, rather may distort and frustrate the object of the law and violate the legislative intent which is absolutely impermissible in law.

8. The definition of "actionable claim" in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of that Act, which by virtue of Sections 130 to 137 thereof inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the "actionable claims" so defined in section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of entry No.9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved. However adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept/ definition is taken to be correct, than a suit for Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statute has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and substraction of a word in a statute is not justified, except where for the interpretation thereof the principle of reading in and reading down may be pressed into service in certain cases; thus when in Entry No.9 'actionable claim' has not been provided by the legislature, it shall be improper and shall impinge upon the legislative intent and the rules of interpretation to add this expression to the clause/entry.

9. In the light of above, this appeal is hereby allowed and the judgments and decrees of the courts below are set aside. No order as to costs.