' An Agricultural land situated in Khata No,31 Rectangle No,515/11, Khasra No,23/8, Rectangle.
No,515/12, Khasra No,13/4, Rectangle No,535/4, Khasra No,11-A/4 measuring 20 Kanals Mauza Lal Sonhara, Tehsil Hasilpur, District Bahawalpur, was sold by Muhammad Ramzan Shah son of Jewan Shah in favour of Muhammad Nawaz, Muhammad Arif and Mst. Ghulam Sakina defendants/respondents for a consideration of Rs,5,000 through Mutation of Sale No,628 attested on 29-6-1979. The plaintiff Mst. Manzoor Elahi/the petitioner herein, through her general attorney, Sardar Shah son of Haji Karam Shah preempted the sale claiming to be her superior right of pre- emption being owners in the estate qua the defendants-vendees. The suit was contested by the defendants who filed their written statement raising some preliminary objections. From the factual controversy appearing on the pleadings of the parties, the Trial Court led to frame following issues:--
(1) Whether the suit is barred by time? OPD
(2) Whether the suit is not correctly valued for the purposes of court-fee, if so, its effect and correct valuation? OPD
(3) Whether the defendants were in possession of the suit-land as tenant at the time of sale in dispute? OPD
(4) Whether suit is not maintainable in view of preliminary objection No, 6? OPD
(5) Whether defendants are entitled to transfer charges of Rs,3,000? OPD
(6) Whether plaintiff has better right of pre-emption as against the -defendants? OPP
(7) Whether ostensible sale price of Rs,6,350 was fixed in good faith or was actually paid? OPD (8)' Otherwise what was the market value of the suit-land at the time of sale in dispute? OPP
(9) Whether plaintiff waived her right of pre-emption if any? OPD
(10) Whether the suit is benami and has been filed for the benefit of Sardar Shah, if so, its effect?
OPD
(11) Relief.
' After recording, appreciating the evidence of the parties, the Court vide its judgment and decree, dated 8-9-1985 decreed the suit of the plaintiff-petitioner subject to payment of Rs,6,250 less the amount of Zare-Panjum, if any.
2. Feeling aggrieved, the defendants-respondents preferred an appeal which came up for hearing before District Judge, Bahawalpur, who through his judgment and decree dated 9-10-1986 accepted the appeal and set aside findings of the Trial Court observing that the plaintiff/petitioner has failed to establish her superior right of preemption.
3. I have heard to arguments of the learned counsel for the petitioner and perused the record.
4. The case of the defendants-respondents is that the plaintiff became owners in the estate on the basis of a Mutation No,451 attested on 18-3-1963, the copy of which is placed on record as Exh.P.6.
The defendants had taken the stand that the said mutation is mutation of sale and property in dispute had been transferred through the sale in lieu of Rs,3,000 dower amount fixed by Mahmood Shah husband of the plaintiff/petitioner.
5. Learned counsel for the petitioner stressed that the property transferred in favour of the plaintiff- petitioner by her husband in lieu of dower is gift and not a sale, thus, not compulsory registerable.
He further contended that Mahomedan can transfer his property through an oral gift.
6. Article 285 of the Mahomedan Law has defined the dower as under:-- "Mahar 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. Under Mahomedan Law dower is an obligation imposed upon the husband as a mark of respect to the wife. The consideration 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."
7. Dower money is a debt payable to a wife and she is within her legal rights to press for its payment. Mahar or Dower is that financial gain which the wife is entitled to receive from her husband by virtue of the marriage contract itself whether named- or not in the contract of marriage, in which case proper dower (Mahir Mithl) becomes due.
8. In case Mst. Bakht-e-Rawida v. Ghulam Habib and 2 others (PLD 1992 Karachi 46), the Honourable Mr. Justice Wajihuddin Ahmed, Judge of the Karachi High Court observed that the dower is essentially the right of the wife and not of her parents.
9. Dower money is a debt payable to a wife and she is within her legal right to even press for its payment, as observed in case of Muhammad Mumtaz v. Mst. Parveen Akhtar and another (1985 CLC 415).
10. It is established that the dower money is a debt or obligation on the husband and the wife is entitled to claim for the same. In the instant case, the property in the estate has been obtained by Mst. Manzoor Elahi plaintiff-petitioner from Mehmood Shah for a consideration of Rs,3, 000 the amount of dower. The Mutation No,451 of Exh.P.6 was got entered by husband of the plaintiff Mehmood Shah with the revenue Patwari and an entry in Column No,15 of the mutation had been made on the statement of Mehmood Shah who stated that he had contracted his marriage with Mst. Manzoor Elahi and dower was fixed as Rs,3,000 who could not pay to his wife and he for the said amount has transferred the property in Khata No,3. The mutation Exh.P.6 was a sale mutation as is evident from the order of the Revenue Officer, dated 18-3-1963.
11. In case of Haji Ghulam Hussain v. Mst. Amir Khatun (PLD 1976 Baghdad-ul-Jadeed 37) the Honourable Judge of this Court has observed as under:-- "It is not every gift in lieu of dower which would amount to a sale. A gift is a transfer of property, made immediately and without an exchange by one person to another and accepted by or on behalf of the latter. It is an intention of the donor which counts and such an intention to part with the property must be express, genuine and bona fide. It is not that reasons that the delivery of possession is an essential ingredient of a valid 'gift. In the case of a Muhammadan husband a gift made by him to his wife in lieu of dower may be with an exchange and may be without it also. If the husband has fixed a particular amount of dower and in exchange thereof he alienates any property by way of gift, he shall be deemed to have transferred it, for value in discharge of debt and such gift or hiba would be a Hiba-bilAwaz and the transaction would amount to a sale. Such a hiba, in this part of the country where provisions of section 54, Transfer of Property Act are applicable, its consideration is more than Rs,100 requires a writing and registration. But a direct gift of an immovable property in lieu of dower particularly at the time of Nikah created by a husband in favour of his wife without incurring a liability by specifying a dower debt in terms of money does not take the character of a Hiba-bilAwaz. It is simple hiba without any exchange, not amounting to a sale as defined in section 54."
12. In the instant case neither direct gift of property has been made by husband of the plaintiff nor the property is given in dower by the husband to the wife. The amount of Rs,3,000 was fixed as dower and the .Husband for that consideration has delivered the property through Exh.P.6 in favour of his wife, therefore, it was a transaction of sale and not of gift. It is, thus, clear that the plaintiff became owner of the property in the estate through oral mutation of sale and section 54 of the Transfer of Property Act had been made applicable to the area of Ex-State of Bahawalpur and thus, the transfer of property by husband of the plaintiff through the oral sale Exh.P.6 was made in conflict with the provisions of section 54 of the Transfer of Property Act and the Honourable Supreme Court in case of Muhammad Bakhsh v. Zia Ullah and others (1983 SCMR 988), has observed that the oral sale does not confer any right or interest on plaintiff/pre-emptor such as could be made basis for claiming either ownership or co-sharership.
13. The Appellate Court has validly observed that the plaintiff became owner in the estate through oral sale in conflict with section 54 of Transfer of Property Act, thus, has no locus standi to file a suit for pre-emption.
14. The learned counsel for the petitioner has not been able to meet with the above discussed arguments and failed to point out any illegality in the judgment and decree passed by Lower Appellate Court.
' For the foregoing reasons, the revision petition having no force is dismissed and the judgment and decree of the Lower Appellate Court is affirmed.