1. By order dated 21-11-1979, a learned Single Judge of this Court dismissed this second appeal on the ground of limitation. The appellants went in appeal before the Supreme Court. The learned Judges of the Supreme Court allowed the appeal and while setting aside the above order of the learned Single Judge of this Court remanded the- case to this Court for disposal on merit, -vide order dated 4-12--1985.
2. The facts of the case may briefly be stated as under: Late Ghulam Khan owned landed property at Mauza Allah Dad Khel.' Tehsil and District Mardan. At the time of his marriage with Mst. Roshan Ara (respondent No.2 herein) he had gifted 85 kanals and 61 marlas to her by means of. Registered deed dated 30-5-1932 (EX.P.X. ). The two lived a cordial life as husband .And wife arid children were born to them. Ghulam Khan. Died and thereafter respondent No.2 sold 25 kanals of land in favour of the appellpnt per deed dated 29-6--1963.
3. Muhammad Iqbal respondent No.1 is born to her from Ghulam Khan. He instituted' the present suit for declaration that his mother (respondent No.2) was in possession of the above 85 kanals and 61 marlas as limited owner and the sale of 25 kanals by her in favour-of the appellant was ineffective against his right. He alleged that his father had given the' above land to her for. Her maintenance during her life or till second marriage.
4. The appellant contested the suit arid- in his written statement he pleaded that' Ghulam Khan had transferred the entire land to respondent No.2 in lieu of dower and as she became full owner of. It, 'she could lawfully transfer the land to him and. No cause of action would accrue to the plaintiff.
5. Upon the pleadings 'of the parties, the learned trial Judge framed the following issues:- (1)Is the suit within time?
6. (2)Whether the defendant No.2 was the limited owner of the suit land and was not entitled to alienate it permanently to defendant No.1?
7. (3)Is the sale in favour of- defendant No.1 ineffective against the right of the plaintiff?
8. (4)Is the suit not maintainable in. The present form? .
9. (5)Relief.
10. Upon these issues the learned trial Judge recorded evidence of the parties and after hearing them he dismissed the suit vide his judgment dated 15-2-1968. By this judgment the 'plaintiff was aggrieved, therefore, he went in appeal to the District Court and a learned Add]. District Judge who heard the appeal allowed the same and setting aside the judgment of the trial Court decreed the suit of the plaintiff, vide his judgment dated' 30-4-1970. By this judgment the defendant /vendor feels aggrieved, therefore, lie has. Preferred this second Appeal with a prayer that the judgment and decree of the learned trial Judge be restored and that of the learned Additional, District Judge be set 'aside.
11. I have heard the learned counsel for the parties, gone through the evidence on record and perused the rival judgments of the two Courts below. The learned counsel for the parties have confined their-arguments: to issues Nos. 2 and .3 reproduced above.. The learned counsel 'for the appellant contended that by the registered gift deed dated 30-5-1932, Mst. Roshan Ara (respondent No.2) became full owner of 85 kanals and 61 marlas and her transfer of 25 kanals by way of sale in favour of the appellant was .Legally a' valid transaction and could not be questioned. He argued that by the above deed in question late Ghulam Khan had transferred the corpus of the land in favour of Mst. Roshan Ara (respondent No.2) and as legally no condition could be attached to transaction by which corpus of the property is transferred, the. Condition that Mst. Roshan Ara would enjoy the usufruct of the property during her lifetime was- a nullity in the eye of law.
12. Learned counsel for the respondents on the ether hand argued that late Ghulam Khan had given the land to 'Mst. Roshan Ara to enjoy its usufruct during her lifetime and no corpus of the land was transferred to her so that she would assert title to the land. He also relied on the gift deed dated 30-5-1932 to show .That Mst. Roshan Ara could not claim ownership of the land and her transfer of 25 kanals was, therefore, not a lawful Act on her part.
13. The deed dated 30-5-1932 by which land measuring 85 kanals and 61 marlas was conveyed by Ghulam Khan to Mst. Roshan Ara is in Vernacular. It lays, down contradictory conditions. The fact is not denied that the deed was executed by husband in favour of his wife. The deed can, therefore, conveniently be termed a dower deed. It is a settled law that whatever is given to the wife by husband as dower, the same would become the exclusive' property of the wife. The deed is clear that at the time of its execution the spouses had no child born to them. There is also no evidence on record to show that. Previously some other property, was given by Ghulam Khan to A Mst.
14. Roshan Ara in order to hold that the same was a dower and the property given in the present case for second time cannot be held to. Have been given in lieu of dower. This being the position, it is clear to me that as Ghulam Khan had intended to transfer the property in the present case in favour of his wife in lieu of dower, the condition laid down in the deed that she would enjoy the usufruct of the property during her .Lifetime would .Be void and of no effect. A somewhat similar document of conveyance was placed before a learned Division Bench .Ok this Court in the case of Sar Anjam Khan, v. Afzal Khan reported in PLD 1972 Peshawar 37: In that case also, the husband had given property to his wife for life. The learned Judges of the Division Bench held that the limited estate or interest in the immovable property was contrary to the conception of Muslim Law. What predominated the mind of the learned Judges in the cited case was that the property was transferred to the lady in the form of dower and no condition could be attached to such transfer. In this connection- reference may be made to citation (f) at page 39 of the report.
15. "Muhammadan Law--Dower--Conception--What can form subject --matter of dower-- Conveyance of landed property to wife as her dower-Kabon Nama reciting" I give the lady from my ownership 1,400 kanals of Ghah Nehri land .... So long as she lives in lieu of dower--Held, corpus of property, in circumstances, passed to wife and conditions that she would not alienate but enjoy property till her life or- remarriage, void and of no effect.".
16. In. The case of Said Akbar and others, v. Mst. Kakai (PLD 1975 Supreme Court 377) also same facts as in the present case were involved. In that case also, the donor had executed a gift deed in favour of his sister with the condition that she would not sell or mortgage the property during. Her lifetime and that on her death the property would devolve upon her husband and her children. The Hon'ble Judges of the Supreme Court held that in the circumstances, the gift was one of the corpus and not merely that of usufruct and that the condition contained in the Tarnleek Nama about the transfer and mortgage during the` lifetime of the donee 'being in defeasance of her rights under gift was void and gift was effective as if no conditions were attached.
17. A look at the above two cited authorities, will make it clear that the case in hand cannot be distinguished from the same. The dictum of law laid down in the cited authorities squares up fully with the facts of the present case. Even according to the, evidence on record, practically the 'deed was a. Dower deed by which ownership right was conferred by Ghulam Khan on Mst. Roshan Ara when notice is taken of the entries in the revenue record accordingly to which, after the execution of the deed in her favour by her husband, Mst. Roshan Ara became full owner of the suit land and enjoyed it as such. In 1932 mutation was attested in favour of Mst. Roshan Ara about the transfer of the suit land in her favour as owner. Ghulam Khan was then alive and he and she lived a cordial life as husband. And wife. Ghulam Khan did not raise a little thumb against the attestation of mutation whereby Mst. Rostian Ara became exclusive owner of the suit land, It, is, therefore, clear that he had acquiesced in the ownership of Mst. Roshan Ara regarding the suit land. The learned counsel for the respondent was unable to meet this aspect of the case. He conceded. That there can be no question about the fact that in the 'circumstances late Ghulam Khan was unaware of the ownership entries with respect to the suit land in the revenue record in favour of Mst. Roshan Ara and the entries were made at his back beyond his knowledge. This circumstance also reflects that Ghulam Khan did not oppose to the transfer of the corpus of the suit land in favour of Mst. Roshan Ara and thus the condition laid down in the deed dated 30-5-1932 (Ex. P.X.) that she would enjoy the usufruct of the suit property till her lifetime was rendered redundant.
18. In the facts and circumstances discussed as it is clear that the deed of 1932 (Ex.P.X.) was, by necessary intendment, a dower deed and as thereafter in the revenue record the ownership of the suit land was transferred in favour of Mst. Roshan Ara within the knowledge of Ghulam Khan, she thus became full owner of the suit land and her title to the, same cannot be questioned.
19. On the view of the matter that I take, I hold that in the facts and circumstances of the case, Mst.
20. Roshan Ara became owner of 85 kanals and 61 marlas and her sale of 25 kanals in favour of the appellant was valid transaction and in law no challenge can possibly be made to the same. This appeal is,- therefore, allowed and while setting the judgment of the learned Additional District Judge, I restore that of the learned trial Judge with no order as to costs.