SHARIFAN BEGUM Versus ABDUL AZIZ

In this second appeal the challenge is to the decree and judgment of the learned First Appellate Court whereby the decree granted by the learned trial Court in favour of the appellant (plaintiff) in a suit for declaration to the effect that she is entitled to enjoy the produce of a certain land for a period of 25 years in lieu of her dower with a perpetual injunction restraining the respondent (defendant) from interfering with the appellant's rights and further from disposing of the land till dower debt was satisfied, was modified. In the impugned judgment, the modification of the original decree complained of is to the effect that there would be no bar on the respondent's part to transfer the land subject to the lien of the appellant as regards the unpaid amount of dower. It has further been declared that the respondent can get back the possession of the land on the discharge of the balance dower.

2. The case of the appellant in the suit filed in 1965 was that she was married to the respondent in or about 1953 and in this wedlock she gave birth to a son. On 26-2-54, she further claimed, the respondent executed an agreement (Exh. P/ 1) in her favour whereunder she became entitled to recover her dower amounting to Rs. 20,000 by appropriating the produce of about 53 kanals of land belonging to the respondent for 25 years, She complained that despite the agreement the respondent wanted to sell the land and this amounted to interference with her right to receive the produce of the land for 25 years which were to expire in 1979. In the written statement dated 12-6-65 the respondent toot the position that the agreement (Exh. P/1) was a forgery and that the signatures were obtained on a paper by means of fraud and misrepresentation. He also asserted that the appellant did not perform marital obligations nor any son was born from this wedlock. With regard to the dower he claimed that an amount of Rs. 16,500 had already been paid in the form of produce and that the appellant was entitled only to the balance amount of Rs. 3,500. He admitted that he wanted to sell the land and for that purpose had entered into an agreement but at the same time he claimed that he bad the right to deal with his property in any manner he liked. The appellant filed a replication and on the pleadings of the parties, following issues were framed :-

"(1) Whether the suit is properly valued for the purposes of court-fee and jurisdiction ?

(2) Whether the agreement dated 26-2-54 executed by the defendant in favour of the plaintiff was a result of fraud ?

(3) If issue No. 2 is not proved, whether the plaintiff is entitled to the possession of the land for the period mentioned in the agreement ?

(4) What amount of the dower debt has been received by the plaintiff ?

(5) Whether the defendant is not entitled to dispose of the land under reference ?

(6) Relief."

3. Issue No. 1 was decided by the learned trial Judge in favour of the appellant while issue No. 2 was decided against the defendant. On issue No. 3 it was held that the appellant was entitled to retain the possession of the land for a period of 25 years "in order to pay up the dower debt due from the defendant". As the appellant was found entitled to retain the possession of the suit land, therefore, issue No. 4 was not decided. On issue No. 5 it was held that the respondent could "sell away the suit land subject to the charge already created by him namely the right of the plaintiff to receive the produce of the suit land for a period of 25 years from the date of this agreement". As a result of the above finding, the suit of the plaintiff was decreed with costs. During the first appeal, the only question raised before the learned Additional District Judge was that of interpretation of the agreement (Exh. P/1) in the impugned judgment. It has been held as follows :-

"During the arguments the learned counsel for Abdul Aziz Shah appellant has demanded that the decree under appeal be modified only to the extent that the appellant could dispose of the suit land subject to the lien on his wife as regards haq mehar and he could obtain release of the land as soon as the dower debt was discharged. This has been opposed by the learned counsel for the respondent. I have gone through the basic agreement Exh. P. 1 dated 26-2-54. 3n this agreement it is estimated that the yearly income from the land is 800. The haq mehar is mentioned as Rs. 20,000. A reading of the whole of that document leaves no doubt that the land has been given to the wife as security for payment of dower. It has been specifically mentioned in it that if she could not get share of the produce she could bring a personal action against the husband. Thus the land has been given to the wife only as security for the payment of dower debt. The demand made by the learned counsel for the appellant cannot be resisted as it directly flows from the parent agreement."

On the basis of the above finding the decree of the learned trial Court was, as noted earlier, modified. Aggrieved by this modification, the appellant then filed this second appeal.

4. The only question raised during the arguments is that of interpreta?tion of the agreement (Exh. P./1). According to the learned counsel for the appellant it created a usufructuary mortgage. He also attempted to show that in effect it is a Zar-e-paishagi lease. Learned counsel for the respondent, however, relied on the bare reading of the agreement and contended that it was nothing more than a security to bind the respondent to pay the dower debt. The produce from the land was furnished as security for the payment of the dower debt. He in particular pointed out that the agreement did not postulate the delivery of the possession of the land and further that no mutation was to be sanctioned. With regard to the actual physical possession, learned counsel tried to explain that the position at the spot is fluid and further that it was not as a result, or on account of, any stipulation in the agreement.

5. I have gone through the evidence and have carefully perused the disputed document, namely, agreement (Exh. P/1). The oral evidence is not of much help in so far as the averments made in the agreement are concerned. The circumstances related in the agreement and the language used therein are of sufficient assistance to see as to what was the intention of the respondent when he executed this agreement. In the introductory part which can also be treated as the preamble of the agreement, it is mentioned that the respondent had married the appellant shortly before he executed the agreement. He mentioned that this was his second marriage. The earlier marriage was subsisting and his first wife was residing with him. In these circumstances, it was further stipulated by the respondent that in order to satisfy and reassure the appellant he (the respondent) without any extraneous pressure had agreed to pay Rs. 20,000 as dower. He then specifically accepted this liability but at the same time expressed that "for the time being (~)" it was difficult for him to make the payment and because the appellant wanted to recover the dower debt and the respondent also wanted to discharge the same, therefore, he further noted that be could think of no other alternative than to furnish the produce of his property as security to the appellant till the payment of the dower debt. In Urdu, the stipulation is as follows :-

Thereafter, the details were worked out one of which was that on accounting it was found that at that time the produce from the land was worth Rs. 800 per annum. The respondent also mentioned that he had not enough powers to deal with the land because it was evacuee property and was with him under an "" arrangement. He, however agreed that till the land remained under his allotment the appellant would be able to take the produce from it but only till the discharge of the dower debt (). In the same manner it was agreed that she would be entitled to take the produce of any other land which might be obtained by the respondent in lieu of the land in question. The remaining part of the agreement deals with the other details of the assurance given by the respondent to the appellant that she will not be maltreated. On the other hand, he expected from her to remain obedient and faithful. There is no dispute about the proposition that the entire agreement is to be read as a whole and an attempt should be made to give effect to each part thereof but if there is any confusion the same should be resolved through the intention contained in the operative part because it (the operative part) is the governing part. Assistance can also be obtained from the introductory part which sometimes is in the form of a preamble. The agreement has not been drafted by a lawyer. Its introductory and operative parts are included in the first half thereof. The remaining half has provided the mechanism and, as already noted, some ancillary details and assurances. From the introductory and operative parts no doubt remains in one's mind that the executants of this agreement intended that the produce of the land shall be a security for payment of the dower till this debt was completely discharged. As the debt dealt therein is in the nature of a dower, the payment of which was intended to start immediately, therefore the expression "" was further intended to be satisfied by permitting the appellant to appropriate the produce of the land at the rate of Rs. 800 per annum till the respondent was able to discharge the liability either through this appropriation of the produce or "till (direct) payment." In this connection, the expression ", used in the mechanism part is very significant. This shows that the expressions used in the introductory and operative parts, naively, "furnishing of security ()" and " " become very significant with, So course, obvious meanings.

6. After hearing the learned counsel and careful scrutiny of the agreement. I agree with the learned first appellate Court that the agreement in question was meant only to provide security for payment of the dower debt in the form of the produce of the land in question. As discussed above, there is sufficient expressive language used is the agreement. There A is no need for further discussion on the question as to what it implies. No justification has been made out for interference with the judgment and decree of the learned first appellate Court. This appeal, therefore, is dismissed. There shall be no order as to costs.

K. ? B. ? A. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????? Appeal dismissed.