This judgment will decide Regular Second Appeal No.6 of 1987.
2. Facts necessary for the disposal of this appeal are that Mst. Tasneem Kausar, respondent No.1 filed a suit for possession of haveli in issue on the ground that she was married with Muhammad Sarwar respondent No.2 on 17-9-1967 and at the time of marriage the haveli in issue was given to her in lieu of dower. Later respondent No.2 divorced respondent No. l through notice of Talaq, dated 22-5-1972. It was further claimed that respondent No. l filed a suit for recovery of dower on 1-6-1972 and during pendency of the suit respondent No.2 executed agreement dated 13-1-1973, delivered the possession of haveli and resultantly, the suit was disposed of on 30-1-1973. The grievance voiced in the plaint was that Wali Dad (petitioner herein) who was paternal---uncle (Phupha) of respondent No.2 (Muhammad Sarwar) executed a collusive deed of exchange by which the haveli was allegedly shown to have been given to appellant in exchange of other property and in pursuance of this conspiracy respondent No. l was turned out of house and possession was illegally taken over by the appellant. Respondent No.1 earlier filed a suit for declaration with consequential relief which was dismissed by the learned Civil Judge on an objection that the same was not maintainable in the existing form due to absence of prayer for delivery of possession. In appeal the suit was allowed to be withdrawn with permission to file fresh one and consequently the present suit out of which this appeal has arisen was filed. In this backdrop, respondent No. l claimed possession of haveli.
3. The suit was resisted by the appellant, who inter alia, maintained that he was a bona fide transferee for value without notice and had incurred certain amount towards additional construction. He also denied the claim of respondent No. l and alleged that she had no cause of action or locus standi to file the suit.
4. After issues and evidence the suit was finally dismissed by the learned Civil judge by his judgment, dated 26-5-1986. Despite the fact that findings on Issues Nos. l, 4 and 5 were returned in favour of respondent No. l and it was held that property was gifted out in favour of respondent No. l by respondent No.2 in lieu of dower and also that gift did not require any registered instrument, the suit was dismissed by the learned Civil Judge, in view of findings recorded against Issues Nos.3 and 5-B which pertained to the claim of bona fide transfer on the basis of deed of exchange.
5. Respondent No. l filed an appeal to assail judgment of the learned Civil Judge which appeal was accepted on 18-1-1987 and in consequence the suit was decreed. The learned Additional District Judge, reversed the findin1v on the plea of bona fide transfer and by upholding the findings on other issues, decreed the suit, which resulted in filing of present appeal.
6. Learned counsel for the appellant vehemently argued that respondent No. l had previously filed a suit for recovery of Rs.17,000 and, therefore, she would be deemed to have forgone her claim for specific performance under section 21, of the Specific Relief Act and in consequence she could not be allowed relief of possession. He added that respondent No. l having felt contented with money would be estopped to raise claim and suit would be barred by rule of estoppel. It was also submitted that exchange deed in favour of the appellant was valid and in any case the respondent No.2 had sold the property given to him in exchange to third party on 14-5-1977 but both -the vendees were not impleaded in the suit. Learned counsel contended that compromise between respondents Nos. l and 2 was entered into on 13-1-1973 after the property had been exchanged which could not adversely effect rights of appellant. Learned counsel further submitted that claim made in three suits was discrepant which aspect of the matter was not attended to by the Courts below. Lastly, learned counsel submitted that transfer of house in this case would be deemed to be Hiba-bil-Iwaz and a sale which could be effected only through registered document and not otherwise. Reliance was placed on Ali Hassan v. Mst. Rashidan and another AIR 1931 All. 237 and Haji Ghulam Hussain v. Mst. Amir Khatun PLD 1976 BJ 37 to argue that there being no registered instrument of transfer no transfer of title could be deemed to have taken place in favour of respondent No. 1.
7. On the opposite side, learned counsel for respondent No. l argued that concurrent findings of fact were recorded by the Courts below as to validity of gift and transfer of title in favour of respondent No. l which could not be assailed in second appeal particularly when no misreading or non- reading of evidence could be pointed out. Learned counsel submitted that it was a case of extreme hardship as respondent No. 1, though held to be owner by all the Courts, yet, she was not given relief in the earlier suit on a technical objection while in the present suit, she was non-suited by the trial Court on a wholly inadmissible ground. Learned counsel submitted that the Appellate Court rightly reversed the findings of the learned trial Court against Issues Nos.3 and 5-B which are not open to any exception. It was added that the alleged exchange deed was claimed to have been executed during pendency of suit and in any case it was collusive as the appellant was real uncle (Phupha) of respondent No.2 who had participated the marriage and was fully aware of transfer of haveli in favour of respondent No. 1. Learned counsel further added that there was no question of estoppel or waiver as tenor of allegation in the previous suit revealed that respondent' No. l was claiming title though the relief was not claimed specifically in view of lack of proper legal assistance. Learned counsel submitted that in any case Court was competent to grant relief according to the averments in the plaint, notwithstanding the fact that the same was not specifically claimed for and in this view of the rule it could not be said that respondent No. l had ever waived or relinquished her claim of title. It was further submitted that respondent No.2 having delivered the possession of house and acknowledged the same, the earlier suit had borne fruit and was accordingly disposed of while the necessity of present suit arose because of the illegal trespass made by appellant in connivance with respondent No.2. Learned counsel lastly submitted that the appellant never denied the factum of transfer of haveli in lieu of dower at the time of marriage and instead claim of appellant was firstly that this was not the property and secondly that some other property was exchanged in favour of respondent No. l and in this view of the matter the total stand of the appellant was misconceived which was rightly repelled by the Courts below.
8. The points raised by the learned counsel for the parties have been duly taken care of in the light of evidence on record.
9. The claim of respondent No. l was that haveli in issue was given to her in lieu of dower at the time of marriage which fact was also acknowledged and confirmed by respondent No.2 (Muhammad Sarwar) in the Nikahnama Exh.P.2. It was also her claim that respondent No.2 executed agreement Exh.D.1, acknowledged delivery of haveli, during pendency of previous suit and that subsequently the appellant who is paternal-uncle (Phupha) of respondent No.2 trespassed the haveli in conspiracy with respondent No.2 which necessitated the filing of present suit. To support this plea, the respondent No. l produced oral as well as documentary evidence. Though the suit was dismissed by the learned Civil Judge yet the findings on issues Nos. l, 4 and 5 pertaining to locus standi to file the suit, cause of action and existence of valid title were recorded in favour of respondent No. 1. The learned Civil Judge expressly concluded that the gift was validly made, the document did not require registration and that respondent No. 1 was owner of haveli in lieu of dower. She was non-suited only on account of findings recorded against Issue No.5-B which pertained to the plea of bona fide exchange. It is also observed that previously respondent No. l filed a suit for declaration and permanent injunction which was decided by the learned Civil Judge on 30-9-1974. Exh.P.6 is copy of the judgment passed in Suit No.211-A/74. In this judgment, too, the findings in regard to transfer of haveli in lieu of dower were recorded in affirmative and it was held that haveli was rightfully transferred in lieu of dower. Notwithstanding the fact that on merits respondent No. l was held to be owner of property yet she was non-suited on a technical objection as to the maintainability of suit in the existing form. The objection was that relief of possession was not claimed and suit was hit by pioviso of section 42 of Specific Relief Act. This found favour with the learned Civil Judge who dismissed the suit. As the matter of fact, the view taken regarding non- maintainability of suit was against law. It is a settled rule that if some relief has not been claimed in the plaint, the suit cannot be dismissed on A this ground and the proper course is to direct the plaintiff/petitioner to amend the plaint and pay the requisite court-fee. Reliance can be made on Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762. In view of the rule laid in the precedent case, the suit could not have been dismissed on the ground of being not maintainable in its present form. Be that as it may, respondent No.1 went in appeal where she was allowed to withdraw the suit with permission to file fresh one subject to payment of cost of Rs.150. This was vide order, dated 29-3-1975 of the learned Additional District Judge, Rawalpindi which was produced in evidence as Exh.D.6. Respondent No.1 claimed to have deposited the amount of cost in the bank and filed the present suit out of which this appeal has arisen.
10. In this backdrop of litigation, the learned Civil Judge again recorded findings in affirmative as to transfer of haveli in favour of respondent No. l in lieu of dower and it was held that the objection as to non-registration was devoid of merit. Despite that she was not allowed relief by the trial Court as it was assumed that exchange in favour of appellant was bona fide. In appeal the judgment was reversed and suit was decreed.
11. As regard the arguments that respondent No. l had not previously asked for property and applied for recovery of money, she should be deemed to have waived her right and be considered to be estopped to file present suit, the objection is devoid of merit. The perusal of previous plaint would show that respondent No.1 in fact claimed title of the property and asked for the same. Copy of plaint is Exh.D.3. In this plaint, she specifically stated that haveli was given to her in lieu of dower at the time of marriage. It is also a settled rule that a party can be given relief to which the party is found entitled, no matter the same has not been specifically claimed. Reference can be made of Samar Gul v. Central Government and others PLD 1986 SC 35.
12. The suit was not tried on merits but was ultimately disposed of vide Exh.D.4 on 30-1-1973, as in the meanwhile respondent No.2 had executed agreement Exh.D.1. In agreement, dated 13-1-1973 Exh.D.1, respondent No.2 clearly acknowledged that possession of haveli had been delivered to respondent No.1 which was earlier transferred to her in lieu of dower. In consequence thereof, the suit of respondent No. l had borne fruit. It cannot, therefore, be said that respondent No. l had relinquished her claim of property or was estopped to claim any title qua haveli. Rather circumstances demonstrate that she had always been agitating her title to the property and that possession of property was given to her vide Exh.D.I in recognition of her rights. The objections of estoppel and waiver are, therefore, not well-founded.
13. As regards the objection that it was Hiba-bil-Iwaz and virtually a sale in favour of were which could not be made except through a registered document, the objection is without substance and devoid of merit. Learned counsel for the respondents relied on Ali Hassan v. Mst. Rashidan and another AIR 1931 All. 237 to support his contention that assignment of property by a Muhammadan to his were as her dower will virtually be a transfer/sale within the meaning of section 54 of Transfer of Property Act. This question has been discussed in detail in Mst. Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399. In this case, it was ruled that transfer of immovable property by husband to his were in lieu of dower compromises of two distinct transfers viz., gift of property by husband to were, and gift by way of her right to recover dower from her husband and such transaction is not required to be effectuated through registered instrument for it is neither the Sale under section 54 of Transfer of Property Act nor provisions of Chapter VII of the Act (relating to gifts) would be applicable by virtue of provisions of section 129 of the Transfer of Property Act. In Haji Ghulam Hussain v. Mst. Amir Khatun PLD 1976 BJ 37, it was ruled that a direct gift of immovable property in lieu of dower particularly on the day of Nikah created by husband in favour of his were without creating a Liability by specifying a dower debt does not take case of Hiba-bil-Iwaz and it will be a simple Hiba without an exchange not amounting to sale as defined in section 54 of Transfer of Property Act.
Similarly, in Amjad Hussain and another v. Mst. Shagufta and 2 others PLD 1996 Pesh. 64, it was ruled that transfer of immovable property by husband to were through Nikahnama which had not been registered under the Registration Act, 1908, did not require compulsory registration and were was entitled to claim immovable property on the basis of Nikahnama wherein the same was incorporated in lieu of dower. In Fazalur-Rehman's v. Mst. Sosan Jan and others 1989 SCMR 651, it was ruled that entries in Nikahnama relating to alienation of property in lieu of dower do not make it an instrument or document of transfer of property but it was to be taken merely as a record of it.
It was further ruled that columns contained in Nikahnama indicating arrangement to which the parties have already subscribed, such record is only prepared to verify those events which have already happened and the document of Nikahnama coupled with other evidence would be sufficient. In the ordinary course to prove the factum of alienation of property in lieu of dower.
Likewise in Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403, it was ruled that a gift by a Muslim would be complete even if there was no writing. It was further ruled that gifts made under Muslim Law are excluded from the operation of Transfer of Property Act.
14. From the rules given in the precedent cases, it is discernible that 'the transfer of property in lieu of dower at the time of marriage by the husband in favour of his were, is not a sale nor it requires any registered document for completion. Furthermore, if the property is given in lieu of dower on the same day when the Nikah has taken place without creating any liability of debt the transfer of property will not require any registration and the entries in Nikahnama showing transfer of property in lieu of dower will be sufficient evidence of the events and arrangements which have already been subscribed to by the parties. The perusal of Nikahnama Exh.P.2 will show that the Nikah took place on 17-9-1967 and at the same time as well as on the same day the haveli was given to respondent No. l in lieu of dower which fact was acknowledged in column No. 16 of the Nikahnama.
It was not a sale, therefore, did not require any registration. The respondent No. l was, thus, lawful owner of haveli and findings of two Courts below, in this regard are not open to any exception. The objection as to the absence of registration being devoid of merit is repelled.
15. In so far as the objection that respondent No.2 had alienated the property, received in exchange from third party who should have been impleaded as party the objection was never pressed at any stage of the proceedings. Even otherwise the alleged transferee from respondent No.2 of the property not subject-matter of the suit, would neither be necessary nor proper party in the present suit. In present suit, the issue involved was as to whether respondent No.2 was owner of property and whether the subsequent transfer thereof to the appellant was valid or not. For determination of these questions, the presence of any other person except appellant and respondents Nos. l and 2 were not necessary. The presence of a vendee from respondent No.2 of other property may be necessary in the suit against respondent No.2, if suit filed to recover possession of property given to him in exchange and not in the present suit. The objection is, therefore, without any substance.
16. As regards the plea of bona fide transfer, the same is not proved in accordance with law. It is in the evidence that the appellant is paternal-uncle (Phupha) of respondent No.2 who was present at the time of marriage of respondent No.2 with respondent No.1 and that property had been transferred in lieu of dower to respondent No. 1. The relationship of appellant and respondent No.2 has not been denied. So much so, the appellant did not appear in the witness-box to prove the bona fide transfer. The appellant could not prove that the alleged exchange was made with the implied or expressed consent of respondent No.'1. On the contrary, there were serious allegations to this effect that the appellant in conspiracy of respondent No.2 trespassed to the house and dispossessed the respondent No. l therefrom. The appellant did not appear in the witness-box to refute these allegations. The other basic ingredients of claimed bona fide transfer for value without notice are missing in this case. Even otherwise, it is not believable that in such a close relationship with respondent No.2, appellant would be unaware of title of respondent No. l in regard to property.
The appellant could not prove having made bona fide inquiries before p the alleged exchange and, on the contrary, the exchange was made during pendency of earlier suit filed by respondent No. l against respondent No.2 which reflects considerably adverse to the plea of bona fide transfer by way of exchange.
17. For the reasons above, the view taken by the learned Additional District Judge does not suffer from any error of law. No ground is made out for interference in the impugned judgment, resultantly, this appeal being without substance is dismissed.