' ARSHAD MAHMOOD TABASSUM, J.---A suit for recovery of dower i,e, cash ,amounting to Rs,500 and certain landed property including gold ornaments was instituted by the petitioner on 12-10-2009.
The learned Judge Family Court decreed the said suit as prayed for, however, the learned first appellate modified the decree and dismissed the claim of the petitioner with regard to landed property as recorded in column No,16 of Nikah Nama, holding that the same could be recovered through filing a civil suit, as the same was beyond the jurisdiction of the learned Judge Family Court.
2. The petitioner, being dissatisfied with the said judgment of the learned first appellate court dated 27-1-2011, has assailed the same through filing the instant writ petition.
3. Learned counsel for the petitioner has argued that it is clearly mentioned in column No, 16 of the Nikah Nama that the landed property was given to the wife in lieu of dower, hence, the same was subject matter of the family suit and was rightly decreed by the learned Judge Family Court and that findings of the learned first appellate court were based on erroneous interpretation of law on the subject.
4. On the other hand, learned counsel for the respondent has argued that the first appellate court has rightly observed that the petitioner should have recourse to the civil court for recovery of the said property, Further submits that he had specifically submitted before the learned Judge Family Court that the entries in column No, 16 of Nikah Nama were result of fraud and forgery whin were liable to be set aside. He has relied upon the following case-law:--
(1) 1984 CLC 3369 (Allauddin Arshad v. Mst. Neelofar Tareen and 2 others),
(2) PLD 2007 Lahore 515 (Muhammad Akram v. Mst. Hajra Bibi and 2 others),
(3) PLD 2011 Supreme Court 260 Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others) and
(4) 2012 CLC 321 Ghulam Muhammad v. Mst. Parveen Akhtar and others).
5. Heard. Record perused.
6. It appears that what found favour with the learned first appellate court to hold that the petitioner should have recourse to the civil court for recovery of landed property etc. Mentioned in column No, 16 of Nikah Nama, was that the same could not be termed as dower. The relevant portion of the impugned judgment reads as under:- "So far as this issue regarding dower in the form of landed property etc. Is concerned, this can be claimed by Mst. Kaneezan Begum through civil court because according to Nikah nama dower of Rs,500 was fixed which has been paid. So far as conditions regarding payment of dower in the form of landed property etc. Mentioned in column No,16 of the Nikah nama are concerned, that cannot be termed as dower and shall be decided by the civil court and not by the family court, hence decree of dower in the form of landed property etc. Is dismissed by setting aside the findings of learned trial court on this issue."
7. To my mind, the learned first appellate court was sadly mistaken on this legal issue. In this regard, it may be observed that column No,16 of the Nikah Nama pertains to the adjustment, which might have been made between the parties in lieu of dower. The landed property mentioned therein was given to the petitioner/wife in lieu of her dower. A So has been incorporated in column No,16 of the Nikah Nama. Even otherwise, it had become personal property of the petitioner/wife, in view of section 5 of the Family Courts Act, 1964 and entry No,9 of the Schedule thereto. The matter, therefore, fell within the exclusive jurisdiction of the Family Court. In this regard, reliance may be placed upon the case of Muhammad Akram (PLD 2007 Lahore 515), the relevant portion whereof reads as under:-- "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 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.'
8. The above view has been endorsed by the august Supreme Court of Pakistan in the case of Syed Mukhtar Hussain Shah (PLD 2011 SC 260).
9. Keeping in view the above circumstances, it is concluded that the claim of the respondent/wife fell within the exclusive jurisdiction of the learned Judge Family Court and what has been held by, the learned first appellate court is contrary to the precedent referred to above, therefore, by accepting this petition, the judgment dated 27-1-2011, passed by the learned Additional District Judge to the extent of which he has accepted the appeal of the respondent/husband is hereby set aside and the judgment and decree dated 24-11-2010, passed by the learned Judge Family Court is restored in its entirety.