RAB NAWAZ AHMED vs Mst. HASINA IQBAL and another
This petition for leave to appeal challenged a Peshawar High Court judgment which had restored a Family Court decree in favor of the respondent-wife for the recovery of Rs. 500,000 as dower. The core legal question was whether the petitioner-husband had satisfied his dower obligation through the alleged transfer of a one-half share in a house to the respondent. The Appellate Court had initially set aside the Family Court's decree, believing the property transfer satisfied the dower claim. However, the High Court, exercising writ jurisdiction, reversed this, finding no documentary evidence of the property transfer and noting the petitioner remained in occupation of the house. The Supreme Court upheld the High Court's decision, emphasizing that the petitioner failed to produce any registered deed or documentary proof of the alleged property transfer before the trial, appellate, or supreme courts. The Court held that in the absence of evidence establishing the transfer of property in lieu of dower, the monetary decree for dower remains enforceable. The petition was dismissed, and the executing court was directed to expedite recovery proceedings.
- Does the failure to produce documentary evidence of a property transfer in lieu of dower render a monetary dower decree enforceable?
- Can a High Court in writ jurisdiction restore a Family Court decree when the Appellate Court's finding lacks evidentiary support?
- Is a claim of dower satisfaction valid if the husband fails to prove the transfer of the agreed-upon property?
ORDER
1. ' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This petition calls in question the judgment of the Peshawar High Court dated 21-4-2010. Precisely stated the facts of the case are that the respondent, Mst. Hasina Iqbal, wife of the petitioner, Rab Nawaz Ahmed, brought a suit, inter alia, for recovery of Rs, 5,00,000 as an amount of dower. The learned Family Court, Mansehra, decreed the suit on 14-3-2008. In appeal, the learned District Judge opined that as one half of the share of the property has been alienated in favour of respondent, she is not entitled to recovery of Rs, 5,00,000.
2. However, the learned High Court, in exercise of writ jurisdiction set aside the finding of the Appellate Court and vide impugned judgment concluded that as no documentary proof of transfer of the property was brought on record and the house was still in occupation of the petitioner family therefore neither the dower has been paid nor the(sic.) court dated 14-3-2008 was restored. It is to be noted that the petitioner/defendant was unable to produce any documentary evidence to show the transfer of 1/2 share of the house in his favour by his father or any other document of his ownership of one part of the house. The learned counsel stated that the petitioner got transferred of 1/2 share in the house in the name of the respondent on 8-8-2005 before the date of Nikahnama dated 14-8-2005. Therefore, according to him claim of the respondent stands satisfied and under the circumstances the High Court could not issue writ in favour of the respondent.
2. We have heard the learned counsel and have gone through the judgment of the Judge Family Court dated 14-3-2008, perusal whereof makes it clear that the petitioner failed to establish that 1/2 share of the house which originally belonged to his father and which he had agreed to transfer in the name of the respondent in lieu of dower of Rs, 5,00,000 has been transferred, inasmuch as no document in support thereof was brought on record. Same was the position before the High Court.
3. It is to be noted that the petitioner also failed to produce copy of any such document before us in order to satisfy us-that the findings regarding trial Court maintained by the High Court. In its judgment dated 21-4-2010 needs to be interfered with. During the hearing the learned counsel, upon inquiring from one Asif Mehmood, present in Court, who claims to be the cousin of the petitioner, it was disclosed that the petitioner is now living in Italy, whereas his brother, who have share in the house, is residing in Ireland. He further stated that the original registered deed of ownership of the house is with the learned counsel previously engaged, who have not filed the same. We do not accept this(sic.).
4. 3.
5. Under the circumstances, we are of the opinion that no case is made out for grant of leave as such the petition is dismissed. The executing court dealing with the matter, the execution application, if filed for recovery of Rs, 5,00,000, is directed to expedite the proceedings and conclude the same within a period of 6 weeks and submit report to the .Registrar of this Court for our perusal.