' QAISER RASHID KHAN, J.--Aggrieved of the judgment and decree dated 28.1.2015 of the learned Additional District Judge- III, Kohat whereby the appeal of respondent No.1 was accepted and judgment and decree dated 12.6.2014 of the learned Judge Family Court Kohat was set aside, the petitioners have preferred the instant petition.
2. Brief facts leading to the instant petition are that the respondent No.1/plaintiff filed a suit for recovery of dower in the shape of 1/4th share in the property measuring 109 Kanals 18 Marlas and 1/2 share in the house situated in Sra Khawra Peshawar and possession of her share throUgh partition against the petitioners/defendants averring in the plaint that her Nikah was solemnized with defendant No.2/respondent No.2 on 10th January, 1988 for consideration of aforementioned dower but same has not been delivered/transferred in her favour; that the suit property was joint ownership of defendants and it was purchased with joint income of the defendants; that defendant No.1 being elder brother transferred the suit property in his name and promised to transfer legal share in favour of each defendant or their wives; that defendant No.2 is owner to the extent of 1/4th share in the suit property and defendant No.1 transferred the same to plaintiff by way of dower; that defendant No:1 also signed the Nikah Nama with his free will as wakil-e-nikah for defendant No.2; that defendant No.2 constructed the suit house with his own money, therefore, plaintiff is also entitled to possession of 1/2 share through partition in the suit house; that defendants be also restrained from undue interference with the suit property; that the defendants were asked time and again to admit the claim of the plaintiff but they refused, hence the suit.
3. On being summoned, the petitioners/defendants Nos.1 and 3 contested the suit by filing written statement while defendants Nos.2 and 4 submitted cognovits in favour of plaintiff. From the divergent pleadings of the parties eight issues were framed, pro and contra evidence were recorded and after hearing the learned counsel for the parties, vide judgment and decree dated 12.6.2014 the learned Judge Family Court Kohat dismissed the suit of the.Respondent No.1/ plaintiff.
Aggrieved thereof, an appeal was preferred by the respondent No. 1/plaintiff which was accepted by the learned Additional District Judge-III Kohat vide judgment and decree dated 28.1.2015, hence this petition by the petitioners.
4. The .Learned counsel for the .Petitioners vehemently argued that the learned appellate court in total disregard to the evidence of the parties decreed the suit of respondent No.1. He contended that the petitioner No.1 had never undertaken as per the Nikah Nama to transfer his property in favour of respondent No.1 as Mehr and that the same was the responsibility of her husband, Dawar Khan. He contended that in the presence of the bridegroom i.e. Dawar Khan there was no point for the petitioner No.1 to sign the Nikah Nama as Wakil-e-Nikah and at best the said signature could be that of witness of the Nikah Nama. He even disputed the Nikah Nama by terming the same to be a fake and bogus document as the original was not produced before the court. He next argued that the petitioner No.1 had never agreed to part with 1/4th share in the property as well as 1/2 share in the constructed house which is his sole ownership and his brother namely, Dawar Khan, had no share in the same*.
5. The learned counsel for respondent No.1 on his turn defended the impugned findings of the learned appellate court on almost the same grounds as detailed therein.
6. Arguments heard and available record perused.
7. The dispute between the parties has its roots in the Nikah Nama dated 10.1.1988 whereby the respondents Nos.1 and 2 were tied in the nuptial bond and at that point of time, besides the dower amount of Rs.50000/- in Clause '13' it was also incorporated in Clause '16' that out of the landed property measuring 109 Kanals 18 Marlas situated at Mauza Sra Khawra which was in the name of the elder brother namely, Gul Akbar, (petitioner No.1) 1/4th portion whereof falling in the share of Dawar Khan would be transferred in the name of the bride (respondent No.1) together with half share in the constructed house and that is how the respondent No.1 namely, Mst. Jameela Afridi, brought a suit for the enforcement of such right before the learned Family Court.
7. Whereas both the petitioners as defendants Nos.1 and 3 resisted the claim of the respondent No.1 by filing their joint written statement, the husband of the respondent No.1 namely, Dawar Khan as defendant No.2 and their other brother Sultan Akbar admitted her claim by filing separate cognovits in this behalf.
8. During the course of evidence, Muhammad Saleem Qadir recorded his statement as PW-1 and stated to have signed the Nikah Nama Ex.PWI/1 as a witness.
' PW-2 namely, Haji Badshah Khan, also vouched for his presence at the time of Nikah as well as his signature on the Nikah Nama. Khan Zaman cousin of the respondent No.1 as PW-3 stated to have signed the Nikah Nama Ex.PW1/1 confirming the contents of the Nikah Nama to be true and correct and that the petitioner No.1 had accepted the responsibility to pay dower to respondent No.1 in his presence by signing the Nikah Nama.
' Nawab Ali as PW-4 confirmed the signature of his deceased brother Zahid Ali Khan on the Nikah Nama as Wakil-e-Nikah for the respondent No.
1. The respondent No.1 namely, Mst. Jameela Afridi, recorded her detailed statement as PW5 and reiterated the contents of the plaint and that on the denial of the respondent No.1 to pay her the share in the property as per Nikah Nama, she had filed the suit.
' The petitioner No.1/defendant recorded his statement as DW-1 for himself as well as special attorney for petitioner No.2/defendant No.3 and owned his signature on the Nikah Nama dated 10.1.1988 to be correct. During cross-examination he also admitted as correct that Haq-e-Mehr of respondent No.1 has been duly mentioned in Columns Nos.16 and 17 of the Nikah Nama but then stated that it is the responsibility of the husband to pay dower to his wife. As against his written statement, wherein the petitioner No. 1/defendant alleged his signature on the Nikah Nama to have been obtained through fraud, in his court statement he did not level the said allegation. He rather candidly admitted in his cross-examination to have made all the arrangements and borne the expenses of the marriage, meaning thereby that he had actively participated in the Nikah ceremony as well as the proceedings thereafter which is, of course, in the form of Walima depending upon the respective monetary status of an individual or a family.
9. It goes without saying that at the time of Nikah, the entire contents of the Nikah Nama including the name of the bridegroom, his parentage, that of the bridegroom and her parentage and the dower whether in cash or in kind is announced and pronounced very vociferously and is heard by all the people forming the close gathering and the petitioner No,1 could be no exception to the general rule as he neither denies his presence on the occasion nor his signature on the Nikah Nama.
10. Despite the content of Clause-16 in the Nikah Nama whereby 1/4 share in the landed property measuring 109 Kanals 18 Marlas in the name of the petitioner No,1 was to be transferred in the name of the respondent-lady together with half share in the house, the petitioner No,1, if at all he was unhappy about such arrangement at that point of time could have flatly refused to accede to the demand of the bride's family. However, he rather happily put his signature on the Nikah Nama as Wakil-e-Nikah alongside his brother Dawar Khan. No doubt payment of dower to his wife is primarily the duty and obligation of the husband, yet there is no bar or prohibition on another person to bind himself as a surety by way of putting this signature on the Nikah Nama for ensuring its payment and such surety cannot wriggle out from such legal obligation when a suit for the recovery of dower is brought against him by the wife. Moreover, it is not that the petitioner No,1 has to part with portion of his property in favour of his sister-in-law, but apparently the said 1/4th portion fell in the share of his brother Dawar Khan and so was the case with half share in the constructed house which as the evidence suggests was constructed with the money of Dawar Khan when he was in service. There is anyway no escape for the petitioner No,1 from the contents of the Nikah Nama in the presence of his duly admitted signature.
11. It is not an uncommon feature of the tribal society that property is purchased in the name of the elder of the family, be that even the elder brother and it is also another characteristic of the said conservative set up that he in turns looks after the interests of his other siblings in no less terms than his real children. No wonder that over the period, materialism has taken over the society by storm and people have started departing from the old norms which were once so endeared to them.
12. The learned appellate court has appreciated the evidence of the parties in their true perspective and has reached to a correct conclusion through the impugned findings which do not suffer from any illegality or jurisdictional error so as to call for the interference of this court through the present constitutional petition.
In view of the foregoing discussion, the present petition stands dismissed. Parties to bear the costs.