2017-12-17

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Latest Judgments regarding Immovable property as Dower or Gift

2016 SCMR 2170 SUPREME-COURT
Marriage—d dower,increase in—Scope—dower could be fixed before marriage and at the time of marriage or thereafter—Furthermore, dower once settled could always be increased subsequently by the husband or by an agreement between the parties—Property mentioned in nikahnama as dower could not be subjected to attachment or sale in execution.

 2017 SCMR 608 SUPREME-COURT
S. 53-A—Registration Act (XVI of 1908), S. 50(1)—Immoveable property—Rival claimants—‘Unregistered sale/dower deed’ and ‘registered gift deed’ in respect of same property—Circumstances in which unregistered sale deed could be given preference over registered deed—Although a registered deed reflecting transfer of certain rights qua a property had sanctity attached to it regarding its genuineness, and strong evidence was required to cast aspersions on its correctness but it could not be given preference over an un-registered deed vide which physical possession of the property had also been given—Section 50(1) of the Registration Act, 1908 also provided that a registered document regarding transfer of certain rights in an immovable property would have effect against every un-registered document relating to the same property and conferring the same rights in the property as shown in the registered document but the law had also provided certain exceptions—Where a person in favour of whom an un-registered deed qua transfer of certain rights in property had been executed, also had possession of the property, he could legally protect his rights in the property and even a registered deed subsequent in time would not affect his/her rights—First proviso to S. 50 of the Registration Act, 1908 provided that such rights in the property could be protected under S. 53-A of the Transfer of Property Act, 1882—Claimant/wife in whose favour property was transferred vide unregistered sale in lieu of dower was also given possession of the same—Report of the Forensic Science Laboratory also confirmed the signatures of her husband/transferor on the said deed—Irrespective of the fact that the rival claimants/petitioners had a registered gift deed in their favour, the same was subsequent in time to the unregistered deed and petitioners had no possession of the property, thus, they could not get any advantage of the same—Besides, the petitioners had claimed the gift in their favour vide the registered deed but the basic ingredients of gift i.e. offer, acceptance and delivery of possession had not been proved by them—Petition for leave to appeal was dismissed accordingly.

2016 SCMR 2170 SUPREME-COURT
Marriage—dower , increase in—Scope—dower could be fixed before marriage and at the time of marriage or thereafter—Furthermore, dower once settled could always be increased subsequently by the husband or by an agreement between the parties—Property mentioned in nikahnama as dower could not be subjected to attachment or sale in execution.

2016 SCMR 2170 SUPREME-COURT
O. XXXVII—Summary suit—Execution proceedings—Attachment of immoveable property—Immoveable property of judgment-debtor attached in execution of the decree in favour of plaintiff—Objection by wife of judgment-debtor that such immoveable property formed part of her dower mentioned in the Nikahnama and hence could not be attached in execution proceedings—Validity—Immoveable property subjected to the execution proceedings was mentioned in the Nikahnama of judgment-debtor as dower —Decree could not be executed against such immoveable property—Petition for leave to appeal was dismissed accordingly.

2016 PLD 613 SUPREME-COURT
S. 5, Sched.—Family Court, jurisdiction of—Undertaking given in the “Nikah Nama” that certain property/land shall be transferred in the name of the wife and she would be exclusive owner of the same—Such an undertaking could be construed as a part of dower or a gift to wife in consideration of marriage therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land.

 2017 MLD 1101 LAHORE-HIGH-COURT-LAHORE
S. 5, Sched—Suit for recovery of dower —Entries made in column No. 16 of Nikahnama—Scope—Contention of wife was that husband promised to mutate agricultural land mentioned in column No. 16 of Nikahnama—Suit was decreed by the Family Court but same was dismissed by the Appellate Court holding that Family Court had no jurisdiction to decide the controversy involved in the present case—Validity—Family Court had jurisdiction to entertain and decide the matter arising out of Nikahnama—Family Court rightly assumed the jurisdiction and decided the lis strictly in accordance with law—Appellate Court had committed jurisdictional defect while accepting the appeal—Wife had proved her case through reliable and credible evidence and she was entitled for the decree prayed in the plaint—Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored—Constitutional petition was accepted in circumstances.

 2017 MLD 580 LAHORE-HIGH-COURT-LAHORE
R. 6—Family Courts Act (XXXV of 1964), S. 5, Sched.—Suit for recovery of maintenance allowance, dower and dowry articles—Territorial jurisdiction—Determination of—Expression ‘ordinarily resides’—Scope—Expression ‘ordinarily resides’ did not necessarily mean that residence should be long in point of time—Residence for a few days was enough—Court had to examine the place where the wife had chosen to stay regardless of whether she was a permanent resident of the place, whether she had property over there or the length of time she had resided there—Both the courts below had rightly decided the issue of territorial jurisdiction in favour of wife—No illegality or mis-reading and non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below—Constitutional petition was dismissed in circumstances.

 2017 CLCN 16 LAHORE-HIGH-COURT-LAHORE
S. 10—dower —Scope—Entire amount of dower should be presumed to be payable on demand if mode of payment was not specified in Nikah Nama or the marriage contract.

 2016 YLR 765 LAHORE-HIGH-COURT-LAHORE
S.5, Sched.—-Constitution of Pakistan, Art. 199—Constitutional petition—Pronouncement of Talaq—Mode and proof—Immovable property gifted to wife and entered in Nikkah Nama—Jurisdiction of Family Court—Wife filed suit for maintenance and dower amount—Family Court decreed the suits allowing maintenance to both wife and minor with annual increase, along with recovery of property gifted by husband—Appellate court dismissed the appeals of parties except disallowing annual increase in maintenance of minor and enhancing maintenance of the wife—Contentions raised by husband were that wife, having been divorced, was not entitled to any maintenance, and that the property gifted to wife could only be claimed through civil suit—Validity—Suit for recovery of dower as well as personal property and belongings of wife came within domain of Family Court under Schedule Part I of Family Courts Act, 1964—Property gifted to wife had come within definition of “personal property and belongings of wife”—Husband and his father had admitted to have the property gifted to wife and entered the description of khasra numbers in Nikkah Nama, which was sufficient to negate their contention that Family Court was not competent to decree the suit—Husband had alleged to have divorced the wife in presence of witnesses in Jirga meeting, but he failed to mention date of divorce and holding of said Jirga, but the wife had admitted that matter of divorce had been put before Mufti Sahib who had given Fatwa that divorce had taken place, which was sufficient to establish Talaq between parties—Talaq could be announced orally and could be in written form, but when husband had taken specific stance then it was his duty to prove the same—Date of sending of notice to Chairman of union council could not be proved—Date of pronouncement of Talaq could be taken when written statement had been filed—Wife was entitled to maintenance till completion of Iddat period—No illegality, irregularity, misreading and non-reading of evidence could be pointed out—Constitutional petition was dismissed in circumstances.