MST. HUSSAN PARI Versus SULTAN MUHAMMAD KHAN
1. GHULAM SAFDAR SHAH. C. J.--- This petition calls in question the order of Mr. I. U. Khan, Member, F. L. C. dated 31-1-74 by which he dismissed the revision application of petitioner (as also another revision application filed by her husband which is the subject-matter of separate writ petition) against the order of Chief Land Commissioner, N.rW. F. P. dated 30-11-72 passed by him in review jurisdiction.
2. The short point involved in this case is whether the learned Member, F. L. C. was justified to disregard the dower-deed dated 22-3-30 produced before him by petitioner and to hold that the gift of land to petitioner through that document by her husband in lieu of her dower would be invalid?
3. It is common ground between the parties that the dower deed dated 22-3-30 was produced by petitioner for the first time before learned Member, F. L. C. who, if he had so intended, could have disregarded it on the short ground that perhaps no additional evidence could be produced before him in revision application. The order passed by him would, however, show that he did not do any such thing; in fact he appears to have accepted the said document as an additional evidence but discarded it for the following reasons:---
4. "In the first instance when the gift made in favour of Mst. Hussan Pari, she was not the wife of the donor. In the second, the agreement is only a declaration that a gift would be made. There is nothing to prove that this agreement was actually implemented. Neither any entries were made in the revenue record nor any other steps were taken to have the agreement actually implemented. It was only after a lapse of about forty years that a civil Court decree was obtained. In this suit the Land Commission was not made a party. Such a consent decree is not acceptable to the Land Commission authorities and is considered to be a device for evading the provisions of M. L. R. 115.
5. In these circumstances, I see no justification for any interference with the concurrent findings of the learned Land Commissioner and the learned Chief Land Commissioner. Both the revisions fail and are dismissed hereby. The stay orders issued should be vacated."
6. The reasoning of learned Member, F. L. C. appears to be divided in two categories:
(1) Legal effect of the dower deed produced before him, and
(2) his consideration of it in the light of clauses (i) to (iv) of Explanation III to sub-paragraph (1) of paragraph 7 of M. L. R. 115 (hereinafter called the M. L. R.)
7. As to the reasons contained in the first category, the learned Member, F. L. C. seems to have not gone through the operative part of the document, as by going through it in Court with the assistance of learned counsel for petitioner and the learned Advocate-General, it transpired that the disputed land was transferred through it to petitioner by her husband on the very date when the document was executed. And the learned Advocate-General rightly concedes that this is what the document says in terms entirely un equivocal. Not only this but the document goes on to mention that hence forth petitioner would be the sole owner of the disputed property and in case she is faced with some difficulty in regard to her dominion over it, the other property of her husband would remain as security in her favour. It would thus be seen that the reasons of learned Member, F. L. C., contained in the first category, are opposed to the clear terms of the dower deed, and to that extent the impugned order passed by him would appear to constitute a paten error on the face of the record. The learned Advocate-General also rightly conceded before us that there is no principle of Muhammadan Law by A which a prospective gift by way of dower cannot be made by a husband in" favour of his wife. And in this respect, he seems to be supported by the following observations contained in paragraphs 285 and 287, Chapter XV of Muhammadan Law by Mulla which respectively read as under:
8. "285. Dower defined.-Mahr 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.
9. "287. Dower maybe fixed after marriage.---The amount of dower may be fixed either before or at the time of marriage or after marriage; and can be increased after marriage."
10. It would, therefore, be obvious that the learned Member, F. L. C. was in error in regard to the principles of Muhammadan Law on the point of time as to when a husband could validly pay to his wife the agreed dower. And to this extent again, his impugned order would be without jurisdiction.
11. As regards the reasons of learned Member, F. L. C. falling in second category, it would be proper to reproduce Explanation III to subpara graph (1) of paragraph 7 of the Regulation which reads as under:--
12. "Explanation III.-In determining whether a transaction referred to in clause (b) of sub-paragraph (1) was bona fide or otherwise, the Commis sion shall, among other matters, take into consideration the following factors-
(i) whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any interest or encumbrance has been created;
(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created; .
(iii) who has been paying the land revenue and other charges in respect of such land;
(iv) who has been receiving the rent for or batai share from such land.
13. Raja Muhammad Muzaffar, the learned counsel for petitioner argued that in the first place, he does not accept the operation of this provision against the interest of his client, as it would cover only those transactions to which reference has been made in clause (b) of sub-paragraph (1) of paragraph 7 of the Regulation. It would suffice to say, without reproducing the said sub paragraph, however, that in-there all transfers, except those about the bona fides of which the Land Commission is satisfied are said to be void, if created at any time during the first day of March 1967 to the nineteenth day of December 1971. The learned counsel urged that the transactions of dower in the present case had been entered into in 1930 and thus Explanation III to subparagraph (1) of paragraph 7 of the Regulation would have no applica tion to the facts of this case.
14. There seems to be force in this contention. But for the purpose of present petition, we would desist from saying anything in regard to its merit, as the petition can be disposed of on a short ground. It will have been noticed that under Explanation III (ibid), the Land Commission is required to take into consideration not only what has been mentioned in clauses (1) to (IV) thereof but also "other matters". And the dower deed produced before the learned Member, F. L. C. would be one such matter and would thus need consideration. It is true that the learned Member, F. L. C. has taken the said document into consideration, but even so he has misread its provisions and also misconstrued its legal effect. We are, therefore, clear in our mind that this would constitute a patent error on the face of record and the im pugned order on that account will have to be quashed notwithstanding the fact that the reasons given by the learned Member, F. L. C. falling in the second category would be relevant in regard to the genuineness or otherwise of dower deed of petitioner, as we cannot conceive as to how far his mind was affected by the said reasons or those falling in the first category. In other words, the two sets of reasons of learned Member, F. L. C. are so interwined as to furnish us with no guidelines as to which set had influenced him more in reaching the impugned decision. And thus it would be for the learned Member to reconsider the effect of said document in the light of what has been said by us in this discussion.
15. This petition, therefore, succeeds. And in the result, we would, exercising power under paragraph (a)(ii) of clause (1) of Article 199 of the Constitution, declare that the impugned order of learned Member, F. L. C. is without law ful authority and of no legal effect. Therefore, the case would go back to C the learned Member for reconsidering the effect of dower deed dated 22-3-193 produced before him by petitioner. But in view of the peculiar circumstances of this case, parties would bear their own costs.
16. S. A. H. Petition allowed. Case remanded.