This Constitutional petition calls in question the judgment and decree, dated 16th of January, 1985, passed by the learned Additional District Judge, Kasur, setting aside the judgment and decree of the Judge Family Court, Kasur, dated 30th of November, 1981.
2. Briefly stated the facts giving rise to this petition are that on 18th of September, 1977, a suit for recovery of Rs.25,000 and 200 Kanals of land as dower was filed by the petitioner against the respondents. According to the case set up by the petitioner in the plaint, she was married to Mirza Moazzam Baig, son of Mirza Inayat Ullah Baig on 25th of July, 1952 against consideration of dower which was fixed at Rs.25,000 and agricultural land measuring 200 Kanals. Mirza Moazzam Baig died on 12th of February, 1975 without paying the dower and as such the estate of Mirza Moazzam Baig was charged with the payment of the dower amount. The suit was contested by respondents Nos.l to 3 who are sons of Mirza Moazzam Baig from his previous wife and by Mst. Zubaida Begum, another wife of the deceased, whose status was disputed by the petitioner. Out of the pleadings of the parties, the learned trial Court framed the following three issues:---
(1) What was the dower agreed between the plaintiff and Moazzam Baig deceased? OPP
(2) Whether any amount of dower is still outstanding towards the assets of the deceased ? OPP
(3) Relief.
After recording the evidence of the parties the suit was decreed by the learned trial Court on 30th of November, 1981. This decision was challenged by respondents Nos.l to 3 and 11 by filing an appeal which partly succeeded before the learned Additional District Judge, Kasur. Both the Courts concurrently held that the dower of Rs.25,000 and 200 Kanals of land was in fact fixed by Mirza Moazzam Baig at the time of his marriage and he had not paid the amount or transferred the land during his lifetime. Both the Courts had relied upon the Kabeennama (Annex. 'A') which was produced before the trial Court as EXh.P.W.l/1. The learned Additional District Judge, however, held that since the document, Kabeennama, EXh.P.W.l/1 purported to transfer agricultural land measuring 200 Kanals of the value of more than Rs.100, it required compulsory registration under section 17 of the Registration Act, in the absence whereof, no right had been created in favour of the petitioner in respect of this land. He, therefore, accepted the appeal and dismissed the suit of the petitioner to that extent.
3. I have heard the learned counsel for the petitioner. No one has appeared to contest this petition on behalf of the respondents, although it is now 12-00 noon.
4. As already indicated, the only ground on which the petitioner was non-suited regarding 200 Kanals of land was that Kabeennama (Annexure 'A') required compulsory registration. The learned counsel for the petitioner, however, contends that the Kabeennama merely recites the factum of dower having been fixed at Rs.25,000 and 200 Kanals of land but does not by itself create, extinguish, declare or assign any title to or in any immovable property. This contention of the learned counsel is well-founded. Section 17 of the Registration Act applies only to those instruments which by themselves create, extinguish or declare any right to or in any immovable property. It is the immediate intent of the document and not its ultimate consequence which determines whether or not a document requires compulsory registration. Fixation of dower creates an obligation on the part of the husband to pay the amount or the property mentioned therein. This does not by itself transfer any immovable property nor the document EXh.P.W.l/1 purports to do so especially when 200 Kanals of land have not been specified nor identified in EXh.P.W.l/1. It is obvious from the reading of the document EXh.P.W.l/1 that it evidences the factum of dower having been fined at Rs.25,000 cash and 200 Kanals of land. As a result of such a document, the petitioner would be entitled to recover the dower fixed therein from her husband or after his death from the estate left by the deceased.
5. Even otherwise the view of the learned Additional District Judge that since the immovable property was being transferred in lieu of dower, the document requires compulsory registration, is not sustainable. In Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399 it was held that the transfer of immovable property by a Muslim husband to his wife in lieu of dower, the recital of which is made in the Nikahnama, does not amount to a sale but is a gift and such instrument does not require registration. This judgment, though in different context, was cited with approval by the Supreme Court in Maulvi Abdullah etc. v. Abdul Aziz etc. 1987 SCMR 1403. The decision of the learned Additional District Judge on this score also is not sustainable.
In view of what has been stated above, this writ petition is accepted, the judgment and decree of the learned Additional District Judge, Kasur is declared to have been passed without lawful authority and of no legal effect, with the result that the judgment and -decree of the Judge Family Court, Kasur shall stand restored. No order as to costs.