Shamsher Abbas Vs Mst Sajida Bibi and others

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

W.P No. 91-D/2024 with C.M No. 81-D/2024

Shamsher Abbas Vs Mst. Sajida Bibi and others

W.P No. 158-D/2025

Mst. Sajida Bibi Vs Shamsher Abbas

For petitioner Malik Ahsan Bilal Langrah, Advocate [In W.P No. 91-D/2024] For respondents Muhammad Sajid Shahzad, Advocate [In W.P No. 91-D/2024]

Date of hearing 03.10.2025

JUDGMENT

Inam Ullah Khan, J.-

1.This judgement addresses the aforementioned two writ petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 concerning a common legal and factual issue. The petitions have laid challenge to the findings of the learned appellate Court, rendered in proceedings emanating from the suits instituted by respondent No.1 (Mst. Sajida Bibi), whereby through judgement dated 26.01.2023, the appeal filed by the respondent No. 1/wife was partially allowed and accepted.

2.Brief resume of the case are that the

respondent/plaintiff filed a family suit against the petitioner for recovery of dower Rs.500/-, gold ornaments, maintenance allowance for herself as well as minor, dowry articles as per list annexed with the plaint and possession of suit house etc, details whereof are given in the headnote of the plaint. After being summoned, the petitioner appeared and contested the suit by filing written statement. Learned trial court, after recording evidence of the parties, partially decreed the suit in favour of the respondents.

3.Being not content with the said judgment, the respondents preferred appeal before learned Additional District Judge, Paharpur D.I.Khan and after hearing learned counsel for the parties, the learned appellate Court, partly allowed the appeal of Mst. Sajid Bibi having made certain modification therein vide judgement and decree dated 26.01.2023 which is now being challenged in the present writ petition.

4.Learned counsel for respondent No. 1/plaintiff submitted that the contents of the Kabinnama unequivocally demonstrate that the petitioner had undertaken to transfer a share in the house as well as 5-tolas of gold ornaments, besides other entitlements, to the respondent as part of the marriage contract. It was argued that this stipulation is clear, specific, and unambiguous, reflecting the petitioner”s express intention to convey ownership in favour of the respondent. Learned counsel contended that since the said undertaking forms an integral part of the Kabinnama, it constitutes a binding contractual obligation arising directly from the marriage contract and is, therefore, enforceable under law. He

further submitted that the clause contained in the Kabinnama regarding transfer of the house and five tolas of gold ornaments in favour of the respondent created a valid and enforceable right in her favour, and upon execution of the said deed, she became the lawful owner of the property and ornaments mentioned therein. It was urged that, in the eyes of law, the respondent thus acquired ownership over the said property, which consequently became her personal property and belonging within the contemplation of Section 5 and Part-I of the Schedule to the West Pakistan Family Courts Act, 1964.

5.Conversely, learned counsel for the

petitioner/defendant contended that under Section 5 of the West Pakistan Family Courts Act, 1964, read with Part-I of the Schedule, the jurisdiction of the Family Court is confined strictly to matters relating to dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, and recovery of dowry articles or personal belongings of the wife. The property in question, being a house owned by the petitioner, does not fall within the category of “dowry articles” or “personal property” of the wife, as it was neither given to her by her parents nor transferred through any registered instrument in accordance with law. Learned counsel further submitted that even if such a condition was incorporated in the Kabinnama, it merely reflects an intention or promise and does not, in itself, create any legal title or ownership in favour of the respondent unless executed through a valid deed of transfer or gift as required by the Transfer of Property Act and Registration Act. Therefore, the relief claimed in respect of the

house was beyond the competence of the Family Court and could only be sought through a civil suit before a competent Civil Court.

6.Arguments heard and record perused.

7.In light of the pleadings and arguments advanced at the bar, the following points for determination arise in the present petitions:

8.The foremost issue requiring adjudication by this Court is whether the claim pertaining to 31⁄2 tolas of gold ornaments

and possession of the house falls within the ambit of “personal property or belongings” of the wife, or whether it constitutes an actionable civil claim cognizable by the Civil Court. Before addressing this proposition, it is necessary to examine as to whether execution of Kabin-nama No. 6898 dated 01.05.2019 executed between the parties has been proved or otherwise. In order to prove the kabin-nama, the respondent/plaintiff examined Muhammad Yousaf, deed writer, as PW-6, who deposed that he had scribed the Kabin-nama and duly entered it in his official register. He further stated that after its preparation, both parties had signed and affixed their thumb impressions thereon. A copy of the relevant register entry was produced and exhibited as Ex.PW-6/1. In addition, Shah Jehan and Zamir Hussain, the marginal witnesses of the Kabin- nama, appeared as PW-1 and PW-2 respectively, and categorically verified and endorsed the contents of the deed, fully supporting the stance of the respondent/plaintiff. Thus, the execution of the Kabin- nama is conclusively proved on record. The contents of the said Kabin-nama explicitly reveal that the petitioner undertook to transfer a share in the house and 05 tola of gold ornaments, among other items, to respondent No. 1 as part of the marriage contract.

This stipulation is clear, specific, and unambiguous, reflecting the husband”s unequivocal intention to convey ownership.

9.The Court observes that since the undertaking formed an integral part of the Kabin-nama, it constitutes a binding contractual obligation arising out of the marriage contract and is, therefore, enforceable under law. The stipulation contained therein regarding transfer of the house and gold ornaments in favour of the respondent/wife is a clear and binding term of the marriage

settlement. The undertaking by the petitioner consequently created a valid and enforceable right in favour of the respondent, by virtue of which she acquired ownership of the said house and 05 tolas of gold ornaments. Hence, upon execution of the Kabin-nama, the respondent/wife became the lawful owner of the aforementioned property, which would, therefore, fall within the ambit of her personal property as contemplated under law.

The Kabin-nama executed between the parties was not an independent civil contract that could be interpreted as an “actionable claim” within the contemplation of the provisions of the Transfer of Property Act, 1882. As defined under Section 3 of the said Act, an “actionable claim” refers to a claim to any debt other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional, or contingent.

In the present case, the claim of the wife for transfer of the house and 05 tolas of gold ornaments per terms of the marriage deed does not fall within the ambit of an actionable claim under the Transfer of Property Act. Rather, it squarely falls within the domain of the Family Courts Act, 1964, as the promise constituted a consideration of marriage and formed part of the Kabin-nama executed between the spouses.

In view of the above unimpeached evidence, this Court is of the considered opinion that the respondent/plaintiff has successfully proved the due execution of the Kabin-nama, thereby fully

substantiating the claims stipulated therein. Consequently, she is held entitled to the recovery of the remaining 31⁄2 tolas of gold ornaments and possession of the suit house. The finding recorded by the learned Appellate Court regarding the alleged lack of jurisdiction of the Family Court is, therefore, devoid of legal force and stands set aside.

10.Without delving deeper into the factual matrix and merits of the case, it is admittedly and undeniably established that respondent No. 1 is the legally wedded wife of the petitioner/defendant. Both the Courts below have, therefore, rightly decreed her claim for past and future maintenance. As regards the claim of respondent No.1 for maintenance allowance of the minor child, the record clearly reflects that, under the settled law, a father is legally bound to maintain and provide for his minor children. This obligation is absolute and continues irrespective of any discord, separation, or estrangement between the parents. The object of awarding maintenance is to ensure that the minor is sustained by his father in a dignified manner, enjoying reasonable comfort and a standard of living proportionate to the father”s financial means, while ensuring that such burden is not unjustly shifted upon the mother.

In this view of the matter, the maintenance allowance fixed for the minor at the rate of Rs. 5000/- per month, with an annual increase of 5%, has been rightly determined by the learned Appellate Court after due consideration of the petitioner”s financial capacity and the prevailing circumstances.

No illegality, irregularity, or misreading or non-reading of

evidence has been found in the said determination that could warrant interference by this Court while exercising its constitutional jurisdiction.

11.As to the rest of the issues and matters ancillary thereto, the examination of record coupled with the testimonies of the witnesses, the learned Additional District Judge-Paharpur, D.I.Khan, has rendered the impugned judgment after due consideration of the scope and essence of the evidence and in strict conformity with law. It was emphasized by the apex Court that the scope of judicial review under Article 199 of the Constitution in such cases was limited to instances of misreading or non-reading of evidence or when the finding was based on no evidence, leading to miscarriage of justice and that the High Court should not disturb findings of fact through a reappraisal of evidence in its constitutional jurisdiction or use this jurisdiction as a substitute for a revision or appeal and that an interference with the lower courts' findings of fact was beyond the scope of the High Court's jurisdiction under Article 199 of the Constitution.

12.Now adverting to the points for determination mentioned in paragraph No. 7 of this judgment, it appears that the learned appellate Court failed to correctly appreciate the true import of the Kabin-nama and the legal consequences flowing therefrom. The claim of the respondent-wife regarding transfer of a share in the house and five tolas of gold ornaments, being a part of the marriage contract, squarely falls within the domain of the Family Courts Act, 1964, as these stipulations were in the nature of consideration of marriage. The interpretation adopted by the

learned appellate Court is not in consonance with the settled principles of law enunciated by the superior Courts. The findings recorded therein disclose misapplication of law and a jurisdictional defect to the extent that the respondent”s claims were treated as actionable, thereby justifying interference by this Court in the exercise of its constitutional jurisdiction. The pleadings, documentary evidence, and depositions of witnesses were not appreciated in their proper legal perspective, which has resulted in a miscarriage of justice. Nonetheless, as to rest of the judgment, the learned appellate Court correctly applied the provisions of the West Pakistan Family Courts Act, 1964, in relation to the other claims of the respondents, its findings stand affirmed.

13.Resultantly, for the reasons recorded hereinabove, the W.P No. 91-D/2024, having no force is dismissed, whereas. W.P No.158-D/2025 is accepted and allowed. Consequently, the impugned judgment and decree dated 26.01.2023, passed by the learned Additional District Judge, Paharpur, District D.I.Khan, is hereby modified to the extent that the learned appellate Court mis- appreciated the legal effect of the Kabin-nama and erroneously treated the respondent”s claim relating to the house and five tolas of gold ornaments as non-actionable by the Family Court. It is held that the stipulations contained in the Kabin-nama regarding transfer of a share in the house and five tolas of gold ornaments constituted valid and enforceable terms of the marriage contract, forming part of the consideration of marriage, and therefore fell within the lawful jurisdiction of the Family Court under Section 5 of the West Pakistan Family Courts Act, 1964.

Except to the above extent, the remaining findings of the

learned appellate Court regarding the decree for dower, dowry articles and maintenance allowance etc in favour of the respondent/plaintiff is upheld and maintained.

Announced

JUDGE

(S.B) Hon’ble Mr. Justice Inam Ullah Khan