NOMAN RASHEED Versus Mst. NIGHAT MIANDAD
SHAKEEL AHMAD, J.--- Leave to appeal is sought against the judgment dated 20.10.2025 ( the impugned judgment ) , passed by the Peshawar High Court, Abbottabad Bench ( the High Court ) , whereby the Civil Revision Petition instituted by the petitioners against the judgment and decree dated 14.06.2023 of the Additional District Judge, Havelian, dismissing their application filed under Section 12(2), C.P.C., was dismissed.
2. Briefly, the respondent No.1 filed a family suit against the respondents Nos. 2 and 4 (her ex-husband and ex-mother-in-law, respectively) for recovery of dower, etc. Following a full-fledged trial, the trial Court, through judgment dated 14.09.2019, partially decreed the suit, consisting of a decree for recovery of possession of the suit house. Aggrieved thereby, the respondent No.2 filed an appeal, which was dismissed vide judgment dated 21.12.2021. Whereafter, the respondent No.1 and minors filed an execution petition, during its pendency the petitioners field an application under Section 12(2), C.P.C., before the Appeal Court, alleging therein that the judgment and decree have been obtained by practicing fraud and misrepresentation, as the husband and his mother had no authority to give the entire house to his wife as dower. However, the said application was dismissed through judgment dated 14.06.2023, followed by dismissal of their revision petition before the High Court, through the impugned judgment. Hence, this petition.
3. Heard and record gone through.
4. The controversy brought before us raises the following questions: i. Whether the application filed under Section 12(2), C.P.C. before the Appeal Court was maintainable in view of the doctrine of merger. ii. Whether the remedy remains available to the legal heirs who were not party to the earlier suit instituted by the wife/ respondent No. 1.
5. It is reflected from the record that at the time of Nikah , the husband gave a house (specifications whereof were not given) as dower ( haq Mehr ) to his wife vide Nikahnama Ex.PW2/1. The declaration was supported by an affidavit executed by the husband and his mother. However, the suit house originally owned by the father of the husband. The father had died much earlier, before recitation of Nikah / marriage. Therefore, the suit house claimed by the wife as her dower had already devolved upon all legal heirs, including the husband and his mother. Consequently, the husband and his mother could only dispose of their own inherited share, not the entire house.
6. Under the Mohammadan Law, dower may consist of any property, but the husband must have the title to transfer the property. Where the property belongs jointly to several heirs, the husband or any other person cannot legally give the entire property as dower. A person cannot transfer more than his own share in joint property. Any transfer beyond his share is illegal and ineffective against co-owners. A co-owner cannot dispose of the entire joint property so as to prejudice the rights of other co-sharers. Thus, even if the dower declaration exists, it can only operate to the extent of the husband s or his mother s share in inheritance only.
7. Section 12(2), C.P.C. provides a remedy to the aggrieved person to impugn the judgment or decree obtained by fraud, misrepresentation, or want of jurisdiction. This provision is an extraordinary remedy. It is intended to nullify judgments obtained by fraud or misrepresentation. However, the application is required to be filed before the Court which passed the final judgment, decree or order. In this respect, reference may be made to the case of Sahabzadi Maharunisa 1 . Once a superior Court decides the matter, the earlier judgment loses independent existence on the touchstone of the doctrine of merger. In the given circumstances, the judgment and decree of the trial Court were maintained by the Appeal Court, which was impugned by other legal heirs through an application under Section 12(2), C.P.C., which was dismissed, whereafter the Constitution Petition instituted against the judgment of the Appeal Court before the High Court was also dismissed. In this case, the crucial point is timing. It is an admitted fact that during pendency of the Constitution Petition, the judgment and decree of the Appeal Court had not yet merged into the judgment of the High Court, as it had not yet decided the matter. Therefore; we are of the view that the judgment and decree of the Appeal Court still existed independently till its logical conclusion in the High Court. However, once the High Court finally decided the matter, maintaining the judgment and decrees of the lower fora , the doctrine of merger became operative. Consequently, the judgments and decrees of the lower fora merged into the judgment of the High Court. Thus, after the decision of the High Court, the application filed under Section 12(2), C.P.C. against the judgment and decree of the Appeal Court became incompetent. Thus, we are of the view that after the merger, a challenge must be made to the final judgment and decree of the superior Court.
8. The legal heirs, who were not made parties to the earlier suit, have the right to impugn the final judgment dated 18.09.2025 passed by the High Court in Constitution Petition No. 647-A of 2025 through an application under Section 12(2), C.P.C.
9. From the discussion made hereinabove, it is held that:
1. A co-sharer cannot transfer the property beyond his inherited share.
2. Dower declaration relating to joint property is valid only to the extent of the husband s share and the signatory of Nikahnama having a share in the property to the extent of his or their share.
3. An application under Section 12(2), C.P.C. must be filed before the Court which passed the final judgment, decree, or order.
10. Before parting with this judgment, it is emphasized that the Nikah Registrars/ Nikah Khwans must verify the title of the husband and any other person who consented to it by taking his signature/ thumb impression, over the dower property before incorporating it in the Nikahnama to avoid unnecessary litigation. The concerned authority shall also take steps to add a separate column in the Nikahnama regarding the husband's title or the title of any other person over the property to be given in dower.
11. In view of the foregoing discussion, this petition fails; therefore, the same is dismissed, and leave declined. The petitioners shall be at liberty to seek their relief in the light of the observations made hereinabove. No order as to costs.
The Registrar of this Court is directed to send a copy of this judgment to the Chief Secretaries of all the provinces for onward transmission to the quarter(s) concerned for strict compliance.
UN/N-6/SC Petition dismissed.
1 Sahabzadi Maharunisa and another v. Ghulam Sughran and another (PLD 2016 SC 358).