ABDUL QADEER CHAUDHRY, J.---This judgment would dispose of Civil Petition No.32-P/1988 and Civil Appeal No.1-P/1988 as they are directed against the judgment of the Peshawar High Court dated 15-12-1987.
2. The facts, in brief, are that at the time of marriage of Mst. Shamala with Waheed Gul, Habibullah father of Wahecd Gul gave in dower one house and two shops through a deed executed on 21-10- 1936 and registered on 26-2-1937. According to this agreement, the executant and his heirs would have no concern with the property in question but she would be entitled to enjoy the usufruct of the disputed property till her life but she will not be entitled to mortgage it, and that the demised property after her death, would revert to Habibullah and his legal heirs. Mst. Shamala transferred the property to defendants Nos. 24 to 29. Haji Ajab Gul and others brought a suit for declaration to the effect that the plaintiffs and defendants Nos.1 to 19 are the heirs of Habibullah. They are owners of the suit property and the sale by Mst. Shamala in favour of defendants Nos. 24 to 29 was illegal and ineffective against their rights. The pleadings of the parties are reflected in the twelve issues framed by the trial Court. The parties produced evidence at the trial. The trial Judge after assessing the evidence decreed the suit in favour of the plaintiffs holding that the deed Ex.3/5 was not a dower deed but was an "Areeat". Mst. Shamala was allowed to enjoy the usufruct of the property till her life. However, the prayer of the plaintiffs for possession of the property was not allowed. Both the parties felt aggrieved by the judgment of the trial Court. They filed two appeals in the High Court (one by defendants Nos. 24 to 29 and the other by Haji Ajab Gul and others). The High Court by a consolidated judgment disposed of both the appeals. It reversed the judgment of the trial Court and dismissed the suit of the plaintiffs. It was held that the deed was pure and simple a dower deed and no condition could be attached to it. The High Court relied upon the two decisions reported in Said Akbar v. Mst. Kakai (PLD 1975 SC 377) and Khuda Bakhsh v. Khudeja Bibi (PLD 1968 Lah. 10011.
3. We have heard the learned counsel for the parties.
4. The learned counsel for the appellants submitted that the property was given by Habibullah to Mst. Shamala for a limited duration of her life. She had to enjoy the usufruct of the property. The deed was an "Areeat" and could not be considered to be a dower deed. He has referred to "Mohammedan Law" by Syed Ameer Ali (Vol. II) wherein it has been observed as follows:---- "Similarly, if a man were to fix for dower a manf---at (profit), that also will be lawful; for example, residence in a house, or the right of riding on an animal, the right of cultivation, & c., but that the period thereof shouldbe ascertained".
5. He has also relied upon Samir Shaikh v. Ali Jan Bewa (PLD 1956 Dacca 143); Nagoor Animal v.
M.K.M. Meeran (AIR 1954 Madras 770); Nawazish Ali Khan v. Ali Raza Khan (AIR (35) 1948 Privy Council 134) and Inayat Begum v. Maryam Bibi (PLD 1953 Pesh. 1).
6. The learned counsel for the respondents, on the other hand, submitted that the property was permanently transferred to Mst. Shamala in consideration of her dower.
7. Baillie in his "Digest of Muhammadan Law" (p.91 Chapter VII, Volume 1) has stated as hereunder:-- "Dower is defined to be `the property which is incumbent on a husband, either by reason of its being named in the contract of marriage, or by virtue of the contract itself, as opposed to the usufruct of the wife's person; and it is known by several names, as muhr, sudak, nuhlah, and akr. `The dower which is due by the contract itself is termed the muhr-i---misul, which means literally dower of the like, or the woman's equals, and has been well rendered by Mr. Hamilton as `the proper dower' is not the exchange or consideration given by the man to the woman for entering into the contract; but an effect of the contract, imposed by the law on the husband as a token of respect for its respect, the woman. For marriage in its original signification means conjunction, and requires only the union of the parties. Hence it is valid though no dower were mentioned, and even though it were expressly stipulated that there should be no dower. Dower being, as already mentioned, opposed to the usufruct of the woman's person, the right to it either is not completed without the other. Hence on the one hand, dower is said to be confirmed and made binding on the husband by consummation, or by its substitute, a valid retirement, or by death, which by terminating the marriage, puts an end to all the contingencies to which it is exposed; and on the other hand the woman becomes entitled to it as soon as she has surrendered her person."
8. Mulla in his "Principles of Mahomedan Law" in sections 285-86 has discussed this proposition as hereunder:-- "285. Dower defined.---Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
Consideration.--The word consideration is not used in the sense in which the word is used in the Contract Act. Under Mahomedan Law dower is an obligation imposed upon the husband as mark of respect to the wife (Baillee Vol. 1, p.91; Abdul Kadir v. Salima (1886) 8 All. 149;. Mt. Fatima Bibi v. Lal Din (37) A.L. 145, 171 I.C. 421). Mahmood, J., in Abdul Kadir v. Salima (1886) 8 All. 149, supra, said that it had been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Mahomedan jurists are accustomed to refer by way of analogy. If dower were the bride price a post-nuptial agreement to pay dower would be void for want of consideration, but such an agreement is valid and enforceable (Mt.Fatima Bibi v. Lal Din, supra; Jahuran Bibi v. Suleman Khan (1934) 58 Cal. L.J. 251,149 I.C. 1150, (34) A.C. 210).
286. Specified dower.--(1) The husband may settle any amount he likes ,by way of dower upon his wife, though it may be beyond his means, and though nothing may be left to his heirs after payment of the amount. But he cannot in any case settle less than ten dirhams. (2) Where a claim is made under a contract of dower, the Court should, unless it is otherwise provided by any legislative enactment, award the entire sutra provided in the contract."
9. In the case of Nawazish Ali Khan, it has been observed as follows:----- "In dealing with a gift under Muslim Law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction, the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.
10. In Dacca's case, it has been held as follows:----- "Under the Muhammadan Law a gift which is subject to a condition and which derogates from the completeness of the grant, the condition becomes void and the gift takes effect as if no condition has been attached to it. But it is equally correct on principle and authority that if the gift is not of an absolute interest with a condition of defeasance, but of a limited interest only, it will be valid."
11. In the case of Inayat Begum, it has been held as hereunder:-- "There is no substantive or positive rule of the Hanafi School of Muslim Law preventing the creation of a life interest in property."
12. The question of law, that is whether dower can be fixed in the form of life interest in property admits of no doubt, so far as Hanafi School of thought is concerned. The specific question in this case is whether it could be so fixed and was so fixed. The very document fixing the dower unmistakably shows that the demand of the prospective wife was for the transfer of the House and the shops in lieu of dower. It was not lifetime interest in them or Areeat that she was asking for. The donor was ostensibly complying with her demand. In complying with it he could not stop short of it, deviate from it or modify it without her express consent. There is nothing to show her express consent in it. In its absence, she takes the property as per her demand as a condition of marriage without the conditions attaching to it for, in complying with the demand he could not stop short of it without her consent.
13. The view taken by the High Court is unexceptionable. The property was given by the appellants as dower to Mst. Shamala in full compliance with her demand. She became exclusive owner of the property. The condition attached does not affect Mst. Shamala's right. The dower became the property of Mst. Shamala free from any encumbrance.
14. The appeal and the petition have no merit. The same are dismissed leaving the parties to bear their own costs.