' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.--- This constitutional petition is directed against the judgment dated 19-5-2006 passed by the learned Additional District Judge, Faisalabad, whereby an appeal, preferred against decree dated 22-9-2005 for grant of 1/3rd share in Plot No,363/D, Sultani Chowk, Ghulam Muhammad Abad, Faisalabad was dismissed.
2. It was the claim of Mst. Parveen Akhtar in her suit for dissolution of marriage and maintenance allowance that defendant at the time of Nikah had agreed to transfer 1/3rd share in Plot No,363/D, Sultani Chowk, Ghulam. Muhammad Abad, Faisalabad in her name which term of Nikah, he did not abide by till the date of institution of the suit. She thus claimed decree of enforcement of such term coupled with decree of dissolution of marriage and maintenance allowance.
3. The suit was contested by the defendant denying the claim and alleging that the entry in Column No, 17 of Nikahnama was fabricated and interpolated subsequently while at the time of Nikah, this condition was never agreed upon between the parties nor any such entry in the relevant column was made in his presence.
4. The learned Family Court after framing necessary issues arising out of the pleadings of the parties concluded that Nikahnama Exh.P.1 being admitted and registered document contained averment of giving 1/3rd share in the plot thus held the plaintiff entitled for the transfer of that share in her name. The suit was thus decreed in same terms. In appeal, findings were maintained by the learned appellate court by further observing that the Family Court had jurisdiction to entertain the suit in respect of claim of share in the plot as. It was the personal property of the bride.
5. None appeared on behalf of the respondent at the call of the case, as such, petition is being decided on the basis of material available on record. Argument of the learned counsel for the petitioner heard.
6. Learned counsel for the petitioner has mainly pressed the decrees of courts in respect of enforcement of entry contained in Column No,17 of Nikahnama and submitted that this court in the case of Muhammad Akram v. Mst. Hajira Bibi (PLD 2007 Lahore 515) has authoritatively observed that only the claim of personal belongings and property of the bride could be entertained by a Family Court and the condition contained in Column No,17 of the Nikahnama, is yet to be determined thus, the learned appellate court has misapplied the cited judgment. He further submitted that the courts below have misapplied the judgment of the case of Nasrullah v. District Judge (PLD 2004 Lahore 588).
7. I have considered the submissions made by the learned counsel for the petitioner and perused the record.
8. The case-law cited at the bar has minutely been examined. The case of Nasrullah referred to by learned counsel bestows jurisdiction upon a Family Court to entertain suit like one in hand while in case of Muhammad Akrarn, this court has taken different view by holding that conditions contained in Column No,17 of Nikahnama does not make property mentioned therein as personal property and belongings of a bride thus, such condition is not enforceable through a family suit.
These two different views of this court have been settled by apex court by a judgment recorded in the case of Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 Supreme Court 260). The august court has approved the ratio of the case of Muhammad Akram (supra) and view taken in case of Nasrullah has been dissented. The ratio of the reported judgment of the Supreme Court is that only those cases could be entertained by a Family Court which are based upon the claim of personal property or the belongings of the bride which have been given to her at the time of her marriage or subsequently she has acquired during the subsistence of her marriage and property mentioned in clause of Nikahnama since did not acquire status of final acquisition, thus such claim is outside scope of family suit. This rule when applied to facts of instant case, it is found that learned appellate court has misdirected itself in holding that claim of respondent for enforcing her claim contained in Column -No,17 of Nikahnama, is matter covered by section 5 and schedule of Family Courts Act, 1964, to which finding this court does not find itself in agreement. The averment contained in the plaint of the respondent necessarily manifests that allegedly there was a promise of the present petitioner to bequeath 1/3rd share in the plot to the respondent which promise remained unfulfilled thus, its enforcement was sought through a family suit filed in Family Court. This institution of claim is evidence of fact that respondent is yet to acquire ownership thus share in plot claimed in suit, did not constitute personal belongings of bride, for attracting section 5 and schedule of West Pakistan Family Court Act, 1964. The forum for determination of such right in such circumstances is not the Family Court created under special statute; rather same right could be get determined from courts enjoying plenary jurisdiction.
9. For what has been discussed above, I am of the firm view that the Family Court has no jurisdiction to entertain the claim lodged before it by the respondent. The courts below have misinterpreted the law as contained in section 5 of the Act (supra) as well as the case-law by holding that the claim of the respondent was actionable before the Family Court hence, the judgments rendered by the courts below are without lawful authority,
10. In view of the above, the judgment and decree recorded by the courts below are declared as illegal, without lawful authority and of no legal consequences thus, are set aside. The suit of the respondent to the extent of claim of 1/3rd share in Plot No,363/D, Sultani Chowk, Ghulam Muhammadabad, Faisalabad is dismissed.