SULTAN TANVIR AHMAD, J. Through this Constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the judgment dated 26.09.2022 passed by learned Additional District Judge Gojra, whereby, the order dated 16.06.2022 of the learned Judge Family Court, Gojra, has been upheld.
2. Brief facts of the case are that suit of respondents Nos.3 to 5 for recovery of maintenance etc. was decreed on 11.01.2021 against respondent No.6 (the 'judgment-debtor'). On 02.09.2021 the learned Family Court attached the property as detailed in this petition (the `property'), however, the composed Revenue Officer reported that the judgment-debtor has already alienated the property to the petitioner, through mutation No.7482 dated 30.11.2019 (the 'mutation'). On 16.06.2022 the learned Family Court declared the mutation as void being result of an attempt to avoid payment of maintenance allowance to respondents Nos.3 to 5. The same was assailed through family appeal Nos.08-14 of 2022, which was dismissed vide judgment dated 26.09.2022 by the learned Appellate Court. Aggrieved from the same, the present petition has been filed.
3. Mehar Gulzar Ahmed Nanga, learned counsel for the petitioner has submitted that the petitioner purchased the property for Rs.100,000/- and the mutation was sanctioned in his favour, therefore, the judgment and the order passed by the learned two Courts below are illegal. It is further submitted by learned counsel that the impugned judgment dated 26.09.2022 passed by the learned Appellate Court and order dated 16.06.2022 passed by the learned Family Court Gojra were passed in a mechanical and hasty manner. Added that the learned Courts below have failed to proceed with the case fairly and properly as well as ignored the verdicts of the superior Courts, hence the impugned judgment and order are liable to be set-aside.
4. Conversely, Barrister Saeed Ahmad Nagra, learned counsel for respondents Nos.3 to 5 has vehemently opposed the present petition. He has argued that the judgment-debtor is not willing to respect and comply with the judgment and decree; that the mutation is passed in utter bad faith and to avoid payment of maintenance; that facts and circumstances clearly suggests that transaction in question is sham. Respondent No.6 (judgment-debtor) is present in person and he has supported the arguments of learned counsel for the petitioner.
5. I have heard the arguments in length and record has been perused with the able assistance of learned counsel for the parties.
6. Record reflects that soon after institution of the suit the judgment-debtor has alienated the property to the petitioner, who is his real brother. After tiling the suit of maintenance, an application was filed by respondent No.3 for restraining the petitioner from alienating the property. The petitioner himself appeared before the learned Family Court on 06.07.2019 and immediately thereafter, the mutation was passed. Today I specifically asked the learned counsel if he can show source of the petitioner from where the amount of Rs.100,000/- was paid but the learned counsel of the petitioner has failed to give any plausible answer. The question was also raised if he can give any detail of withdrawing the amount of Rs.100,000/- from any bank. The learned counsel just kept quiet in response of this question. The reply filed by the petitioner before the learned trial Court is also silent as to the same.
7. Record also reveals that judgment-debtor till to date has neglected to fulfill his obligations imposed upon him through the decree dated 11.01.2021 and to pay the maintenance allowance to the minors. The petitioner appeared before the learned Family Court in response to the application seeking restraining order against the petitioner from alienating the property and within the span of period of 3 to 4 months alienated the property through the mutation to his real brother, which clearly reflects that the mutation is nothing but a sham transaction to avoid maintenance, which is duty of the judgment-debtor. This Court in case titled "Muhammad Yaar v. Additional District Judge, Depalpur and others" (2020 YLR 1266) has already observed as follows:- "3. After hearing learned counsel for the petitioner and scanning the documents, appended with this petition, I have noted that decree in the suit filed by the respondents Nos.4 and 5 was passed on 05.01.2017 whereas mutation in favour of the petitioner was got attested by the judgment- debtor/respondent No.6 (real son of the petitioner) in his favour on 10.05.2017, thus, the same falls within the definition of sham transaction which has rightly been cancelled by the learned Executing Court."
I am further fortified in my view by the law settled by the Honourable Supreme Court of Pakistan in case titled "Amjad Iqbal v. Mst. Nida Sohail and others" (2015 SCMR 128). The Honourable Supreme Court of Pakistan in almost in the similar circumstances has curbed such intent of father to save his property at the cost of own children, depriving them from the basic needs for survival.
The Honourable Supreme Court of Pakistan has clearly observed that while exercising the parental jurisdiction, the Court cannot just sit and be spectator to this unlawful conduct. It will be beneficial to reproduce the following extract from the above said judgment of the Honourable Supreme Court of Pakistan:- "...Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of respondent No.2's own minor daughter. Unfortunately, the respondent No.2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the respondent No.2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the respondent No.2."
(Emphasis supplied)
8. As far as the contention of the learned counsel for the petitioner that the learned Family Court lacked power to pass the impugned order is concerned, it is suffice to reproduce the following extract of "Amjad Iqbal" case (supra): "...Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that, "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court (not exceeding thirty days) the same shall, if the Court so directs to recover as arrears of the land revenue, and on recovery shall be paid to the decree- holder." This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrear of land revenue is by selling the immovable property of the defaulter."
9. The leaned two Courts below have concurrently reached to the conclusion that the only purpose of the mutation is to avoid payment under the decree dated 11.01.2021.
10. No illegality or material irregularity could be pointed out by the learned counsel for the petitioner in the said findings. Consequently, the present writ petition having no merit is dismissed. No order as to costs.