' Through this revision petition judgment dated 29-2-1984 of the learned Additional District Judge, Gujrat whereby he set aside the judgment of the learned trial Court dated 24-7-1981 and accepted the appeal filed by the respondent, has been challenged.
2. The petitioner had filed a suit for permanent injunction against the respondent that she was owner in possession of House No,B-254 situated in Mohallah Bakar Qasaban, Gujrat. The ownership was claimed on the basis that the house was given to her in lieu of her dower money at the time of her marriage with the respondent. The respondent/defendant contested the suit by filing written statement. He denied the transfer of the disputed house to the petitioner/plaintiff and that the house belonged to this father and now after his death he was the owner of the same. The factum of marriage having taken place in the year, 1947 was not denied. However, it was his case that he had divorced the plaintiff/petitioner on 18-3-1975. He categorically denied having given the house in lieu of dower to her.
3. In view of the pleadings of the parties the learned Trial Court framed the issues and the parties produced their respective evidence. The learned Trial Court considered all the issues as inter- connected and disposed them of together and decreed the suit filed by the petitioner/plaintiff on the view that a Kabinnama dated 11-3-1947 Exh.P1 had been executed between the parties by virtue of which the house in dispute had been given to the petitioner/plaintiff in lieu of dower money of Rs,1,000. The judgment of the Trial Court was challenged in appeal by the respondent/defendant and the learned Additional District Judge, Gujrat vide his judgment dated 29-2-1984 accepted the appeal and set aside the judgment of the learne Trial Court. Hence, this petition for revision by the petitioner/plaintiff against the appellate judgment.
4. Learned counsel for the petitioner contends that a Kabinnama had been executed between the parties on 11-3-1947 by virtue of which the disputed house had been given to the plaintiff/petitioner in lieu of dower money i,e, Rs,1,000. It is further contended that the Trial Court believed the execution of said Kabinnama whereas the learned Appellate Court has reversed the finding of the Trial Court which view of the Appellate Court is the result of misreading and non-reading of evidence on record. It is contended that the evidence on record did establish the quantum of dower money as Rs,1,000 and also the transfer of the house in lieu of the same to the petitioner/plaintiff.
5. Learned counsel for the respondent/defendant contends to the contrary, that no transfer of the disputed house at all had been made by the respondent/defendant or his father. According to him Kabinnama is a forged and fabricated document which was neither relied upon by the petitioner/plaintiff at the time of filing of the suit nor is there any mention of this fact in the plaint.
He submits that the stance of the petitioner/plaintiff before the local commission appointed by the Court immediately after filing of the suit was that the transfer of the house was made orally. It is contended that there is no proof or entry in any of the public records as to the transfer of the house in the name of the petitioner/plaintiff and that to the contrary it has continued to remain in the name of respondent/defendant. He has supported the judgment of the learned Appellate Court.
6. The suit was filed by the petitioner/plaintiff on 18-11-1975 the plaint, of course, does not make mention of any Kabinnama. The record shows that a local commission was appointed at the instance of the petitioner/plaintiff who recorded the statement of the petitioner/plaintiff on 19-11- 1975 before whom sho stated that respondent had given this house in lieu of dower, orally. She, however, stated that there was a writing as to the dower which she was unable to find and was searching for the same. In support of her claim that the disputed house had been transferred to her in lieu of dower, she produced P.W.1 Fazal Elahi, P.W.3 Abdul Ghafoor. In his statement P.W.1 had stated that he participated in the marriage and respondent/defendant had given in writing a house in favour of petitioner/plaintiff, in lieu of dower. Kabinnama, Exh. P.1 dated 11-3-1947 was sought to be proved through the testimony of Abdul Ghafoor P.W.3, a marginal witness to the same alongwith Fazal Elahi P.W.1. Fazal Elahi P.W. Lwas again produced and re-examined when he stated that he had witnessed the execution of the said document and had put his thumb-impression on the same. The petitioner/plaintiff herself appeared as P.W.4 and claimed the house to have been given to her. She denied and contradicted the suggestion that Exh.P.1 has been fabricated afterwards. From the evidence led by respondent/defendant the statement of Fatima Bibi is of some importance, who is cousin of the respondent/defendant, whereas she has claimed herself to be Shareholder in the disputed house, she states that the petitioner continued to be possession of the house since her marriage.
7. The learned Trial Court in view of the evidence led by the parties and the Handwriting Expert, accepted the execution of 'Kabinnama' and also that the house had been given to the petitioner/plaintiff in lieu of dower money of Rs,1,000 and that since then she has continued to be owner in possession of the house. He, thus, decreed the suit treating the petitioner/plaintiff as owner in possession of the disputed house.
8. As against that the learned Appellate Court took the view that it was highly improbable and unbelievable that the mention of a document of such an importance i,e, Kabinnama should have been omitted in the plaint. He also took note of the statement of the petitioner/plaintiff made before the local commissioner that the house had been given to her orally and also noted some discrepancies in the statement of P.W.1 Fazal Elahi and P.W.3 Abdul Ghafoor and the witnesses. He treated the report of the Handwriting Expert and his testimony, as a "weakest type of evidence". He reached the conclusion that "Kabinnama Exh.P1 is a spurious document which has been cooked up at some time after the institution of the suit. Otherwise there is no explanation by the petitioner who omitted to make mention of this document in the plaint or relied on it in the list of reliance of the documents and even when she could not produce it before the Local Commissioner who went to the spot and recorded the statements of the parties and their witnesses. He, thus, without adverting to the defendant's evidence," set aside the findings of the lower Court.
9. I am not satisfied, the way both the Courts have dealt with this case as the same has not been considered in its true perspective. The Trial Court erred in law in treating Kabinnama as a document of title operating to transfer the disputed house in the name of the petitioner/plaintiff.
Admittedly, the respondent/defendant, was not the owner of the house. Therefore, no such document could be executed by him. It also overlooked the testimony of Fatima Bibi, D.W.4 who is cousin of the respondent/defendant and had stated that the house belonged to Nizam Din, her grandfather, which devolved upon Karim Bakhsh, her father and Fazal Karim, father of the respondent/defendant and also claimed to be a shareholder in the same being the daughter of Karim Bakhsh. There is no evidence to the contrary nor her statement was dislodged in any manner. The house was, thus, not exclusively owned by the father of the defendant/respondent when Kabinnama was executed. Exh.P1 is a Kabinnama.
10. "Kabin" {{URDU TEXT}}( e) means dower money which is agreed to be paid by the husband at the time of Nikah, and "Kabin nama" is a document in which the amountl, of dower is mentioned or , stated. (see page 969)({{URDU TEXT}} and also H.H. Wilson, Edition-1985, page 245 where "Kabin- nama" is described as a deed in which the dower is stated. The aforesaid definition of Kabinnama is also reproduced in Venkataramaiya's Law Lexicon with Legal Maxims at page 1234 of Vol.II, 1983 Edition. Exh.P1 was, thus, essentially a document stating the dower money which the was fixed at Rs,1,000. The recitals in the same that the house has been given to the petitioner/plaintiff are only in the nature of a security or guarantee for the payment of the dower money by the respondent/defendant and his father Fazal Karim. It is also supported from the later conduct of the parties that no attempt throughnut after the marriage in the year, 1947 till the year, 1975, when the same was dissolved was made to get the house transferred by the petitioner/plaintiff in her name.
No public record/document has been produced that the ownership was indeed transferred in her name. The learned Trial Court, thus, in treating the Kabin-nama Ex.P1 as a document of title transferring ownership in the name of the petitioner/plaintiff erred in law and the finding to that effect is in correct.
11. The Appellate Court, however, had a totally different approach and did not accept the execution of Exh.P1 Kabinnama. In reaching such a conclusion it was influenced by the fact that no such assertion was made in the plaint nor such a document was relied upon, and that before the Local Commissioner she stated that the house was orally transferred to her. The learned Appellate Court, however, while referring to the statement of the petitioner/plaintiff made by her before the Local Commissioner omitted to consider a part of her statement when she stated that there was a document written as to a dower which she was not finding now and that she was searching for the same. This statement was made by her the next day of the filing of the suit i,e, 19-11-1975. It did not take long time to produce the Kabinnama, as application to this effect was made by her on 17-2- 1976 which has been omitted from consideration by the Additional District Judge. He further failed to appreciate that no objection was raised by the respondent/defendant when Kabinnama Exh.P1 was brought on record and was duly received in evidence by the trial Court. The original of Exh.P1 was on record which is on a stamp paper, purchased by Fazal son of Nizam on 9-3-1947 and was written on 11-3-1947. The learned Appellate Court, however, was influenced by certain discrepancies in the statements of Fazal Elahi, P.W.1 and Akbdul Ghafoor, P.W.3 the marginal witnesses of the said document. It also discarded the report and statement of the Handwriting Expert who appeared as a Court-witness on the general statement that such-like evidence is of a "weakest type". There was no cogent basis for holding it to be a spurious document.
12. I have myself seen and perused the original of Exh.P1 and find that the authenticity of the same as to its execution and genuineness is beyond doubt. It is signed by respondent Muhammad Hussain whose specimen signatures were also got compared and examined through Handwriting Expert and are reported tallying with each other. The two marginal witnesses Fazal Elahi and Abdul Ghafoor have been produced, who have owned their thumbimpression/signatures on the said document. The minor discrepancies as to the name of scribe and place of writing was not of much importance to describe the same as a spurious document as has been treated by the learned Appellate Court.
' This document is also thumb-marked by Fazal Karim. Father of respondent/defendant as {{URUD TEXT}} do not agree with the approach and view of the learned Appellate Court that Exh.P1 was a spurious document.
13. After coming to the above conclusion that both the Courts had a variant approach to the matter which was not correct in the facts and circumstances of the case and in view of the evidence on record and the legal position obtaining in the matter, instead of remanding the case after almost 23 years of the filing of the suit, I have thought it proper and in the interest of justice to decide it myself. Since I have found the document Exh.P1 having been executed between the parties, the import and effect of the same is the determining factor in the matter. As has been discussed above it is a Kabinnama which is meant for settling the dower money between the parties. The dower amount of Rs,1,000 was fixed in this document which was guaranteed and secured by the father of the respondent/defendant, who stood as a surety {{URUD TEXT}} ( (:)-.(..:0) and it was not meant as a document of transfer of the disputed house in the name of the petitioner/plaintiff that is why no transfer of ownership indeed took place in the name of the petitioner/plaintiff during all this period since 1947. The petitioner/plaintiff has only the right to the amount of dower agreed and mentioned therein.
14. Under the Muhammadan Law the dower is considered to be a debt and a woman immediately on dissolution of marriage becomes entitled to the payment of the same: Likewise, is the position of a widow who is entitled to retain her possession over the property of the deceased husband until her dower claim is satisfied (Refer section 296 at page 316 of Mulla's Mohammedan Law, Pakistan Edition, 1-1983 and AIR 1925 PC 63 (Mt. Maina Bibi and others v. Chaudhri Vakil Ahmad and others).
15. Except the statement of respondent/defendant himself that he had paid dower amount (Rs,32) there is nothing on record as to the payment of dower money that was settled and agreed between the parties in the Kabinnama. Even no such suggestion was made to the petitioner/plaintiff. It is, therefore, evident that the dower amount has remained unpaid to the petitioner/plaintiff. It is also established on record that the petitioner/plaintiff has continued to remain in possession of the disputed house, she is entitled to retain her possession till the payment of the dower money as fixed in the Kabinnama. Therefore, the view of the learned Trial Court that the petitioner/plaintiff is owner of the disputed house and of the learned Appellate Court that Kabinnama was a spurious document is found to be untenable on facts and law.
' In view of the above, the suit of the petitioner/plaintiff that she is owner of the disputed house is misconceived and is dismissed, however, she is entitled to retain possession of the same until her dower amount is paid by the respondent/defendant. Decree to be amended accordingly.
16. This revision petition is disposed of in the above terms. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.