Muhammad Ramzan VS Asia Jan etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

W.P. No. 2909 of 2024

Muhammad Ramzan Vs.

Asia Jan and 02 others

Petitioner by : Mr. Kashif Ahmad Khan, Advocate.

Respondents by : Mr. Muhammad Sadiq Khan, Advocate for respondent No.1.

Date of Hearing : 07-9-2026.

SHAHRUKH ARJUMAND, J.-

1.The petitioner has assailed judgment and decree dated 01-12-2023 (“Impugned Judgment and Decree”) passed by learned Additional District Judge-XI, (West), Islamabad (“Appellate Court”), whereby appeal filed by petitioner was partially allowed and learned trial Court was directed to modify the original decree to the extent that five tolas of gold ornaments, or their alternate market value at the time of recovery, were included in dower payable to respondent No.1; the claim regarding recovery of dowry articles was confined to those mentioned in Exh.P-2, excluding the article at Serial No.24; and the claim relating to recovery of valuables/livestock was dismissed.

2.Brief facts as narrated in memorandum of petition are that respondent No.1 [Asia Jan] contracted marriage with Muhammad Munir,

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son of the petitioner, on 30.09.2016. Unfortunately, Muhammad Munir died within four months of marriage on 19.01.2017. Thereafter, on 06.07.2019, respondent No.1 instituted a suit against petitioner for recovery of dower, dowry articles and valuable gifts. The learned Trial Court framed necessary issues and vide judgment and decree dated 24.07.2023, partly decreed suit in favour of respondent No.1, inter alia, for recovery of dower in shape of a house mentioned in Nikahnama, valuables/livestock comprising six buffaloes, three cows and two calves or their alternate value and dowry articles as per inventory Ex.P-3 or their alternate value. The petitioner assailed judgment and decree of learned Trial Court through an appeal, which was partially allowed by learned Appellate Court vide Impugned Judgment and Decree, whereby the decree was modified in the terms that five tolas of gold ornaments, or their alternate market value at the time of recovery, were included in dower payable to respondent No.1; the claim regarding recovery of dowry articles was confined to those mentioned in Exh.P-2, excluding the article at Serial No.24; and the claim relating to recovery of valuables/livestock was dismissed. The learned Appellate Court observed that, in absence of any estate left by deceased husband, petitioner, having been present at the time of marriage and Nikah, would be liable to pay the dower. The dower in shape of the house as well as the dowry articles has already been handed over to respondent No.1. The petitioner is, therefore, aggrieved only by judgment and decree of learned Appellate Court to the extent that liability of payment of five tolas gold ornaments, or their alternate market value, has been fastened upon him and the same is assailed through the instant petition.

3.Learned counsel for petitioner contended that impugned findings of learned Appellate Court, whereby liability for payment of five tolas of gold as dower has been fastened upon petitioner merely because he was present at time of Nikah, is contrary to law and authoritative pronouncements of

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superior Courts. He submitted that dower is an obligation of husband arising out of matrimonial relationship and cannot, in absence of any undertaking, guarantee or surety by the father, be imposed upon father-in- law for liabilities of his deceased son. Learned counsel further argued that deceased husband was a sui juris adult, approximately 40 years of age at the time of Nikah and his personal liabilities could not legally be extended to petitioner merely on account of his presence at marriage ceremony. He contended that petitioner neither stood surety for alleged liability nor was a signatory to Nikahnama. It was further submitted that respondent No.1 herself admitted during her evidence that gold ornaments constituting the alleged dower had already been paid to her by her deceased husband and were subsequently sold by her. Learned counsel also submitted that learned Appellate Court failed to appreciate that approximately 11⁄2 marlas of land had already been mutated in favour of respondent No.1 through inheritance Mutation No.1340. According to learned counsel, impugned observation that mere presence of petitioner at time of marriage rendered him liable to pay the dower is wholly unsupported by law and facts. He, therefore, prayed that Impugned Judgment and Decree be set aside to the extent of liability imposed upon petitioner for payment of five tolas of gold or its alternate market value.

4.Learned counsel for respondent No.1, while opposing contention raised by learned counsel for the petitioner, submitted that the Impugned Judgment and Decree has been passed by learned Appellate Court after proper appreciation of evidence available on record and in accordance with the settled principles of law. He prayed for dismissal of this petition.

5.Arguments heard and record perused.

6.Perusal of record shows that learned trial court decreed the suit of respondent No. 01 vide Judgment and Decree dated 24.07.2023 on three (03) counts i.e. recovery of Dower in shape of a house mentioned in

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Nikahnama: recovery of valuables/livestock including six (06) Buffalos, three (03) Cows and two (02) calves or its alternate market value: and recovery of Dowry Articles as per Ex.P3 or its alternate market value. The said Judgment and Decree was assailed by present petitioner before learned Additional District Judge-XI, (West) Islamabad, whereby Judgment and Decree of learned trial court was modified to the extent that 05 Tola Gold Ornaments were also included in the Dower payable to respondent No.01 or its market value in alternative at the time of recovery: recovery of dowry articles per Exh.P2 except items mentioned at Serial No. 24 and claim of respondent No. 1 to the extent of recovery of valuables / livestock was dismissed.

7.Primary contention of present petitioner is that he is father in law of respondent No. 01 and is not liable to pay the dower to respondent No. 01 on behalf of his son to whom respondent No. 01 was married during his life time, however, petitioner did not dispute the fact brought on record by learned appellate court in respect of failure of husband of respondent No. 1 qua payment of Dower. Therefore, it is an admitted fact that dower in shape of 05 Tolas Gold Ornaments remains unpaid. Accordingly, only question to be determined by this court is as to whether present petitioner is liable to pay the same to respondent No. 01. In accordance with settled law in this regard, payment of dower is exclusive liability of husband to his wife and father in law or anybody else holds no liability towards payment of dower unless said liability was expressly undertaken. It is well settled that father or mother are not bound to pay dower on behalf of their son to their daughter in law unless they willingly accept to pay the same either expressly or impliedly. In the case of ‘Fawad Ishaq and others v Mst. Mehreen Mansoor and others’, 1 august Supreme Court of Pakistan held that:

Fawad Ishaq and others v Mst. Mehreen Mansoor and others, P L D 2020 Supreme Court 269.

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“The property of mother in law became subject matter of the lis on the ground that her husband being guarantor to transfer the property to his daughter in law. August court categorically held that not being a signatory to wakalatnama, mother in law was not bound to transfer the property to her daughter in law nor her husband was authorized to transfer the same in absence of any authority.”

8.It was further held in the case of ‘Mst. Shumaila Bibi v Zahir Khan and 3 others’ that:

“14. It is established rule that the husband could not give any property in dower to his wife that did not belong to him but belong to some one else, but if the father of bridegroom consented and agreed to do so. Admittedly there is no rule that the father has the liability to give the debts of his son, but in such like situation when a father consented to give his daughter in law the specific property or portion of the property as her share in lieu of dower, hence the father assumed the direct liability and stood surety, when his presence at the time of scribing of Nikah Nama during Nikah ceremony, is not denied and proved during course of trial as in the instant case.2” 9. Above mentioned principles make it evident that in absence of express or implied consent, property belonging to someone else cannot be given in dower including that of father or mother of groom. However, as already observed, failure of husband of respondent No. 01 to pay dower to the extent of 05 Tolas Gold Ornaments remains an admitted fact and after death of husband, said liability has to be discharged from estate left by said deceased. In the instant case, estate of deceased in shape of livestock was established on the basis of evidence produced before learned trial court. Though the petitioner contends that the same is his ownership and nothing was left by the deceased, but liability of husband of respondent No. 1 cannot be eliminated. Even otherwise, it cannot be presumed that deceased husband of respondent No. 01 expired without leaving any kind of property Mst. Shumaila Bibi v Zahir Khan and 3 others, P L D 2015 Peshawar 182.

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as his estate. Present petitioner in his statement before learned trial court contended that deceased husband of respondent No. 01 was working on daily wages and had no estate and the livestock allegedly owned by him was actually ownership of petitioner but nothing in support of said contention could be placed on record and having admitted the transfer of property measuring 1 1⁄2 Marla through Mutation No. 1340 on behalf of deceased husband of respondent No. 1, it cannot be presumed that deceased expired without leaving any estate in his name. Therefore, contention of present petitioner to the extent that he is not personally liable and deceased did not leave any estate for payment of outstanding dower to respondent No. 01 cannot be admitted in totality as despite having no personal liability for payment of dower to respondent No. 01, it still remains her right that the same be recovered from the estate of her deceased husband.

10.Dower (mehr) is the responsibility of husband and the same becomes payable whenever demanded by wife. It was held by august Supreme Court of Pakistan in the case of ‘Khalid Paervaiz v Samina and others’ that:

“Mehr has to be paid whenever demanded by the wife.

Section 10 of The Muslim Family Laws Ordinance, 1961 stipulates that:

'Where no details about the mode of payment of dower are specified in the nikahnama, or the marriage contract, the entire amount of the dower shall be prescribed to be payable on demand.

In the case of Syed Muhammad v. Mst. Zeenat (PLD 2001 SC 128) the Supreme Court held that, mehr (dower) can be demanded during the subsistence of the marriage, and that the husband is under an obligation to pay it.3

11.Therefore, it is evident that unpaid dower remains the liability and debt on the husband even after his death and it can be recovered from his Khalid Paervaiz v Samina and others, 2024 S C M R 142.

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estate. It is also well settled law that estate of a deceased person can only be devolved and distributed amongst his/her legal heirs after payment of his debt and liabilities. The courts have also endorsed this principle. It was held in the case of ‘Khair Muhammad Khatian and 5 others v Liaquat Ali H. Kazi and 9 others’ that:

“11.From above, it prima facie appears that ultimate object of the 'administrative suit' is that of partition/distribution of shares among the legal heirs of what (the estate) a deceased has left at the time of his/her death but after payment of debts and liability.4”

12.Payment of debt is a fundamental liability in Islamic law and if same remains un-discharged and the person dies, the soul of debtor remains restless. Holy Prophet ( )صلى الله عليه وسلمin this regard stated that “Soul of a believer is tied to his debt until it is paid off.” (Tirmidhi). It is also reported that Holy Prophet ( )صلى الله عليه وسلمsaid another point:

“There are two types of debtors. There are those who (borrow money) and then die while having had intended to pay it back; I am responsible for such a people. Then there are those who (borrow money) and then die while having no intention of paying it back; such people are those whose good deeds will be taken from them on a day on which there will be neither dinar nor dirham.” (Tabarani; Majma’ al- Zawa’id, Haythami; Fayd al-Qadir, Munari).”

13.It is an established principle of Islamic law that after the death of a person, settlement of debt is given preference over the right of heirs. Given the fact that petitioner has denied existence of any estate in name of his deceased son, decree passed by learned appellate court cannot be set aside merely on the basis of his oral contention. Procedure regarding execution Khair Muhammad Khatian and 5 others v Liaquat Ali H. Kazi and 9 others’ 2017 C L C Note 177 [Sindh].

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of decree has been prescribed under Section 13 of Muslim Family Laws Ordinance, 1961 which states:

“13. Enforcement of decrees. (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.

(2)If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment or the delivery of property, as the case may be, in the aforesaid register.

(3)Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court not exceeding thirty days, the same shall, if the Court so directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.

(4)The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order, direct.

(5)A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.”

14.Therefore, upon controversy of existence of estate of deceased, executing court can make enquiries as to existence of his estate and even if no such estate is found, payment of dower remains a debt on deceased husband of respondent and same is required to be discharged in the hereinafter in accordance with above mentioned sayings of Holy Prophet ( )صلى الله عليه وسلمand decree passed as such cannot be set aside in the attending circumstances. Further, after the death of a judgment debtor, a decree may be executed against his/her legal representatives. The mode in this regard is provided in Section 50 CPC which says:

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“50. Legal representative. (1) Where a judgment- debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2)Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of ; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

15.Section 50 CPC empowers executing even to compel legal representatives to produce accounts for the purpose of satisfaction of decree. Superior courts have also adopted the approach that where it is uncertain as to whether the deceased left any estate, executing court can make enquiry to ascertain existence of any such estate. It was held in the case of ‘Mst. Zubaida Khanam etc. v Haji Muhammad Siddique’ that:

“Section 50, CPC governs execution against legal representatives and limits liability strictly to the extent of estate inherited. The appellants now assert that they have not inherited any estate from the deceased. However, no such plea was taken before the Trial Court, nor was any evidence led in that regard. Equally, this Court cannot determine questions of actual inheritance in the absence of pleadings and evidence forming part of the record. The impugned decree determines liability of the deceased drawer/defendant. Its executability against legal representatives is statutorily circumscribed by Section 50, CPC. The Executing Court is competent to determine, upon objection, whether and to what extent any estate has been inherited and is available for

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satisfaction of the decree. The decree, therefore, is executable only to the extent of any estate inherited by the appellants, and not beyond.5”

16.In view of above, it is evident that after passing decree by learned appellate court, the same cannot be set aside merely on the contention of petitioner that he is not liable to pay the dower due on his son and executing court can hold an enquiry in this regard. No other significant plea was taken by petitioner against the impugned decree. Hence, petitioner has failed to point out any illegality, irregularity or misreading/non-reading of evidence warranting interference with the Impugned Judgment and Decree dated 01.12.2023. Consequently, finding no merit in the instant petition, the same is hereby dismissed.

(SHAHRUKH ARJUMAND)

JUDGE

Approved for reporting.

Farid ur Rehman *

Mst. Zubaida Khanam etc. v Haji Muhammad Siddique, PLJ 2026 Lahore 534 (Multan).