(a) Muslim Family Laws Ordinance (VIII of 1961)‑
‑‑‑S. 5‑‑Nikahnama‑‑Entries relating to alienation of property‑‑Evidentiary value of‑‑Such Nikahnama, entries wherein mentioned alienation of property in lieu of dower, did not make it an instrument or document of transfer of property but it was to be taken merely as a record of it‑‑Columns contained in Nikahnama clearly indicated that they referred to arrangement that had already been subscribed to, by the parties‑‑Such record is prepared only to verify those events which had already happened‑‑Contemporaneous preparation of a record of events before the controversy had arisen, would be good evidence for proving the state of facts in controversy‑‑Document of Nikahnama coupled with the evidence of the person who solemnized such Nikah and witnessed all the recitals contained therein, would be sufficient in the ordinary course, to prove factum of alienation of property in lieu of dower, unless there was strong rebuttal of it.
Jesa Ram and others v. Ghulaman and another A I R 1936 Lah.816: Muhammad Din and another v. Mst. Sardar Bibi and others A I R 1927 Lah. 666 and Arif Hussain and Azra Parveen v. The State P L D 1982 F S C 42 ref.
(b) Transfer of Property Act (IV of 1882)‑‑
‑‑‑S. 41‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal was granted to examine whether Nikahnama was admissible as an instrument of transfer of property and even if it was so admissible, whether appellant was not entitled to protection under S.41 of Transfer of Property Act being its bona fide purchaser for valuable consideration from an ostensible owner.
(c) Civil Procedure Code (V of 1908)‑‑
‑‑‑O.VIII, R.2‑‑Failure to raise plea at lower forum‑‑Effect‑‑Appellant's plea that Nikahnama produced before Trial Court and admitted in evidence, was not correct copy of contents of Nikahnama, had been raised for the first time before Supreme Court‑‑Failure of appellant to raise such plea at an earlier stage and his submission to its being brought on record without objection, would not entitle him to attack genuineness of that document.
(d) Muslim Family Laws Ordinance (VIII of 19141)‑‑
‑‑‑S. 5‑‑Transfer of Property Act (IV of 1882), S.41‑‑Bona fide purchaser for valuable consideration from an ostensible owner‑‑Entitlement to protection under S.41, Transfer of Property Act, when not to be available‑‑Alienation of a part of disputed land in favour of contesting respondent in lieu of dower having taken place earlier fromthe same Khata by the same owner, sale transaction in appellant's favour was subjected to a claim for a declaration that she was owner to the extent of land having been alienated in her favour in lieu of dower, and being a co‑sharer had a superior right of pre‑emption over the rest of land‑‑In denyingto appellant protection under S.41, Transfer of Property Act, Courts below had rightly taken note of the fact that two transactions were very recent having taken place within a period of two years and that failure of appellant to take note of entries of Nikahnama which being a public document copy thereof was available to him to ascertain factum of alienation in favour of contesting respondent, would disentitle him to claim protection under S.41, Transfer of Property Act, 1882 because being a transferee he was bound to make enquiry as to extent of entitlement of transferor to transfer same to him.
Muhammad Shah Badshah, Advocate Supreme Court and Shakir Ullah Jan, Advocate‑on‑Record for Appellant.
S. Safdar Hussain, Advocate‑on‑Record for Respondent No.1.
Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondent No.1
Date of hearing: 29thNovember, 1988.
FORBES FORBES CAMPBELL & CO. LTD., KARACHI VS HABIBUR REHMAN1989SCMR651Present: Shafiur Rahman, Usman Ali Shah and Naimuddin, JJFAZAL‑UR‑REHMAN‑‑AppellantversusMst. SOSAN JAN and others‑‑RespondentsCivil Appeal No.15‑P of 1979, decided on 29/11/1988.(From the Judgment of Peshawar High Court, Circuit Bench, Abbottabad, dated 22‑5‑1979 passed in Civil Revision No.197 of 1975).
JUDGEMENT
SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the 1` ,‑defendant‑vendee in a pre‑emption suit to examine whether the Nikahnama was admissible as an instrument of transfer of property and even if it was so A admissible, whether the appellant was not entitled to protection under section 41 of the Transfer of Property Act being its bona fide purchaser for valuable consideration from an ostensible owner.
Muhammad Zaman defendant‑respondent No.2 was admittedly the owner of 16 kanals 12 marlas of land in Mansehra. On the occasion of the Nikah of contesting pre‑emptor respondent No.1 Mst. Sosan Jan with his son, he alienated five kanals out of it in lieu of her dower which was fixed at Rs.1,000. This happened on 22‑9‑1969. On 28‑9‑1971 he sold this land measuring 16 kanals 12 marlas m favour of the appellant. This sale was subjected to a clam by Mst. Sosan Jan for a declaration that she was owner to the extent of 5 kanals out of it and being the co‑sharer had a superior right of pre‑emption over the rival pre emptors and the vendee. The suit was contested and as many as 12 issues were framed, but the two important issues on which contest has taken place upto this Court are Issues No.6 and 7 which are reproduced hereunder:‑‑
"6.Whether the rights of defendant No.1 Fazalur Rehman are protected under section 41 of the T.P. Act, as he is bona fide purchaser for valuable consideration?
7.Whether the Nikahnama regarding the five kanals of land transferred in lieu of dower is not admissible in evidence if so, what is its effect?"
On the question of admissibility of the Nikahnama the trial Court held as under:‑
"There is no evidence on the file to show that the Nikahnama is not admissible in evidence. This issue also fails for want of proof and is decided against the defendants."
The District Judge as the first appellate authority affirmed this finding as hereunder:‑
"Ex.P.W.2/1 is the Nikahnama on which she based her claim in regard to dower and transfer of 5 kanals of land in lieu thereof. A perusal of it shows that her Nikah was read with Muhammad Suleman on 22‑9‑1969. but he was not present and on his behalf his father Muhammad Zaman had consented to the marriage. Rs.1,000 were fixed as dower and in lieu thereof he gave 5 kanals out of 16 kanals 12 marlas of. land bearing khasra No.4635."
The High Court too affirmed this finding by holding as follows:‑‑
"Herein past agreement as to gift is clearly reflected by Nikahnama. Consequently no registration was necessary.".
As regards the protection under section 41 of the Transfer of Property Act, the same was denied to the appellant by all the three courts which dealt with the matter. The High Court denied the protection on the following reasoning:‑
"It can be summarily disposed of. Inquiry has to be made by a person diligently to find out title to the property. Mere visit to Registration Office or questioning of Patwari willnot attract provisions of section 41 The vendee in good faith has to prove that all possible avenues were explored to confirm title of the vendor.If he had done so in the present case he would have known that son of the plaintiff was married recent and that certain Nikahnama would have been scribed. He should have made an effort to find out what was given in dower. Want of thorough inquiry into this aspect clearly denies, hinj help of section 41 of the Transfer of Property Act,"
Mr. Muhammad Shah Badshah, Advocate, tile learned counsel for the appellant contended before us that the Nikahnama itself did not contain any such entry with regard to the transfer of land as was shown in the copy produced by the respondent. Even if it did according to the learned counsel for the appellant.as the transfer of the property had taken place fry that instrument itself its registration was compulsory and in the absence of it the document could not be admitted in evidence nor could the title to the property claimed or derived there under. Similarly, it was contended that the appellant was entitled to protection because, neither the Registration Office nor the Revenue record reflected the transaction in question. He relied an the decisions in Jesa Ram and others v. Ghulaman and another (A I R 1936 Lah. 816) and Muhammad Din and another v. Mt. Sardar Bibi and others (R I R 1927 Lah. 666)
Mr. S. Sardar Hussain, Advocate, the learned counsel for the respondent defended the concurrent finding of all the three Courts and submitted that all the questions raised by the appellant stand answered.
The question of law and indeed of general public importance is whether a Nikahnama prepared under section 5 of the Muslim Family Laws Ordinance. 1961 (hereinafter referred to as the Ordinance) is compulsorily register able where it mentions the alienation of property in lien ofdower. As pointed out, the Courts have taken the view that the entries in the Nikahnama do not make it an instrument of transfer of property but that it is record of solemnization of marriage which has to be prepared and kept in a particular manner and on a prescribed form. This view appears to be correct because the very opening words of section 5 of the Ordinance distinguish the fact of solemnization of marriage and its registration in proper form andby appropriate authority. Section 5 of the Ordinance reads as hereunder:‑
"5.Registration of marriages.‑‑(1) Every marriage solemnized under Muslim Law shall he registered in accordance with the provisions of this Ordinance.
(2)For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one Ward.
(3)Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance be reported to him by the person who has solemnized such marriage.
(4)Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees, or with both.
(5)The form of Nikahnama, the registers to be maintained by Nikah Registrars,the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of Nikahnama shall be supplied to the parties, and the fees to be charged thereof, shall be such as may be prescribed.
(6)Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under subsection (5) or obtain a copy of any entry therein."
This distinction between the solemnization of the marriage and its being recorded and got registered has been recognized in the case of Arif Hussain and Azra Parveen v. The State (P L D 1982,F.S.C.42). In the context of section 5 of ordinance is clear that solemnization and maintaining a record of it are two different acts. Solemnization of the marriage precedes the completion of the formalities with regard to the preparation of record of it and getting it registered. Even the columns contained in the Nikahnama clearly indicate that they refer to arrangement that has already teen subscribed to by the parties. The record is prepared only to verify the events which have already happened. In such a situation it cannot be taken to be an instrument or document of transfer of property but it has to be taken merely as a record of it.
The other contention was that as independent of the Nikahnama none of the witnesses has appeared to depose about the alienation, it should be taken as not proved. The contemporaneous preparation of a record of events before the controversy has arisen is good evidence for proving the state of facts in controversy. From that point of view, the Nikahnama would be a valuable piece of evidence. Besides, the person who solemnized the marriage appeared as a witness of marriage and of all the recitals contained in the Nikahnama. This evidence would be sufficient in the ordinary course, unless there be strong rebuttal of it, to prove the transaction.
The suggestion of the learned counsel for the appellant "that the Nikahnama produced before the trial Court and admitted in evidence is not correct copy of the contents of the Nikahnama has been advanced before us for the first time and never earlier in writing or orally when the witness was being examined. In view of not having raised any such question at any earlier stage and to have submitted to it being brought on record without objection, the learned counsel cannot now attack its genuineness.
In denying to the appellant protection under section 41 of the Transfer of Property Act, the Courts have taken note of the fact that the two transactions were very recent, taken place within a matter of two years. In such a background and the normal prevailing practice that on the occasion of marriage some land is transferred in favour of the bride, the enquiry cannot be said to be complete without examination of Nikahnama. Not only was the Nikahnama required to be registeredbut a copy of Nikkahnama could be maintained even by the appellant as it was a public document. In the circumstances, the view taken by the High Court that the enquiry cannotbe considered as sufficient on the part of the appellant where he failed to verify from Nikah Registrar's office appears to be correct. This fact that there was another document to be looked into and also that the transaction was a recent one, distinguishes the two cases of the Lahore High Court referred to by the learned counsel for the appellant for claiming protection.
We find that there is no merit in any of the grounds taken up by the learned counsel. The appeal is dismissed with no order as to costs.
AA./F‑89/SAppeal dismissed.
(a) Muslim Family Laws Ordinance (VIII of 1961)‑
‑‑‑S. 5‑‑Nikahnama‑‑Entries relating to alienation of property‑‑Evidentiary value of‑‑Such Nikahnama, entries wherein mentioned alienation of property in lieu of dower, did not make it an instrument or document of transfer of property but it was to be taken merely as a record of it‑‑Columns contained in Nikahnama clearly indicated that they referred to arrangement that had already been subscribed to, by the parties‑‑Such record is prepared only to verify those events which had already happened‑‑Contemporaneous preparation of a record of events before the controversy had arisen, would be good evidence for proving the state of facts in controversy‑‑Document of Nikahnama coupled with the evidence of the person who solemnized such Nikah and witnessed all the recitals contained therein, would be sufficient in the ordinary course, to prove factum of alienation of property in lieu of dower, unless there was strong rebuttal of it.
Jesa Ram and others v. Ghulaman and another A I R 1936 Lah.816: Muhammad Din and another v. Mst. Sardar Bibi and others A I R 1927 Lah. 666 and Arif Hussain and Azra Parveen v. The State P L D 1982 F S C 42 ref.
(b) Transfer of Property Act (IV of 1882)‑‑
‑‑‑S. 41‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal was granted to examine whether Nikahnama was admissible as an instrument of transfer of property and even if it was so admissible, whether appellant was not entitled to protection under S.41 of Transfer of Property Act being its bona fide purchaser for valuable consideration from an ostensible owner.
(c) Civil Procedure Code (V of 1908)‑‑
‑‑‑O.VIII, R.2‑‑Failure to raise plea at lower forum‑‑Effect‑‑Appellant's plea that Nikahnama produced before Trial Court and admitted in evidence, was not correct copy of contents of Nikahnama, had been raised for the first time before Supreme Court‑‑Failure of appellant to raise such plea at an earlier stage and his submission to its being brought on record without objection, would not entitle him to attack genuineness of that document.
(d) Muslim Family Laws Ordinance (VIII of 19141)‑‑
‑‑‑S. 5‑‑Transfer of Property Act (IV of 1882), S.41‑‑Bona fide purchaser for valuable consideration from an ostensible owner‑‑Entitlement to protection under S.41, Transfer of Property Act, when not to be available‑‑Alienation of a part of disputed land in favour of contesting respondent in lieu of dower having taken place earlier fromthe same Khata by the same owner, sale transaction in appellant's favour was subjected to a claim for a declaration that she was owner to the extent of land having been alienated in her favour in lieu of dower, and being a co‑sharer had a superior right of pre‑emption over the rest of land‑‑In denyingto appellant protection under S.41, Transfer of Property Act, Courts below had rightly taken note of the fact that two transactions were very recent having taken place within a period of two years and that failure of appellant to take note of entries of Nikahnama which being a public document copy thereof was available to him to ascertain factum of alienation in favour of contesting respondent, would disentitle him to claim protection under S.41, Transfer of Property Act, 1882 because being a transferee he was bound to make enquiry as to extent of entitlement of transferor to transfer same to him.
Muhammad Shah Badshah, Advocate Supreme Court and Shakir Ullah Jan, Advocate‑on‑Record for Appellant.
S. Safdar Hussain, Advocate‑on‑Record for Respondent No.1.
Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondent No.1
Date of hearing: 29thNovember, 1988.
JUDGEMENT
SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the 1` ,‑defendant‑vendee in a pre‑emption suit to examine whether the Nikahnama was admissible as an instrument of transfer of property and even if it was so A admissible, whether the appellant was not entitled to protection under section 41 of the Transfer of Property Act being its bona fide purchaser for valuable consideration from an ostensible owner.
Muhammad Zaman defendant‑respondent No.2 was admittedly the owner of 16 kanals 12 marlas of land in Mansehra. On the occasion of the Nikah of contesting pre‑emptor respondent No.1 Mst. Sosan Jan with his son, he alienated five kanals out of it in lieu of her dower which was fixed at Rs.1,000. This happened on 22‑9‑1969. On 28‑9‑1971 he sold this land measuring 16 kanals 12 marlas m favour of the appellant. This sale was subjected to a clam by Mst. Sosan Jan for a declaration that she was owner to the extent of 5 kanals out of it and being the co‑sharer had a superior right of pre‑emption over the rival pre emptors and the vendee. The suit was contested and as many as 12 issues were framed, but the two important issues on which contest has taken place upto this Court are Issues No.6 and 7 which are reproduced hereunder:‑‑
"6.Whether the rights of defendant No.1 Fazalur Rehman are protected under section 41 of the T.P. Act, as he is bona fide purchaser for valuable consideration?
7.Whether the Nikahnama regarding the five kanals of land transferred in lieu of dower is not admissible in evidence if so, what is its effect?"
On the question of admissibility of the Nikahnama the trial Court held as under:‑
"There is no evidence on the file to show that the Nikahnama is not admissible in evidence. This issue also fails for want of proof and is decided against the defendants."
The District Judge as the first appellate authority affirmed this finding as hereunder:‑
"Ex.P.W.2/1 is the Nikahnama on which she based her claim in regard to dower and transfer of 5 kanals of land in lieu thereof. A perusal of it shows that her Nikah was read with Muhammad Suleman on 22‑9‑1969. but he was not present and on his behalf his father Muhammad Zaman had consented to the marriage. Rs.1,000 were fixed as dower and in lieu thereof he gave 5 kanals out of 16 kanals 12 marlas of. land bearing khasra No.4635."
The High Court too affirmed this finding by holding as follows:‑‑
"Herein past agreement as to gift is clearly reflected by Nikahnama. Consequently no registration was necessary.".
As regards the protection under section 41 of the Transfer of Property Act, the same was denied to the appellant by all the three courts which dealt with the matter. The High Court denied the protection on the following reasoning:‑
"It can be summarily disposed of. Inquiry has to be made by a person diligently to find out title to the property. Mere visit to Registration Office or questioning of Patwari willnot attract provisions of section 41 The vendee in good faith has to prove that all possible avenues were explored to confirm title of the vendor.If he had done so in the present case he would have known that son of the plaintiff was married recent and that certain Nikahnama would have been scribed. He should have made an effort to find out what was given in dower. Want of thorough inquiry into this aspect clearly denies, hinj help of section 41 of the Transfer of Property Act,"
Mr. Muhammad Shah Badshah, Advocate, tile learned counsel for the appellant contended before us that the Nikahnama itself did not contain any such entry with regard to the transfer of land as was shown in the copy produced by the respondent. Even if it did according to the learned counsel for the appellant.as the transfer of the property had taken place fry that instrument itself its registration was compulsory and in the absence of it the document could not be admitted in evidence nor could the title to the property claimed or derived there under. Similarly, it was contended that the appellant was entitled to protection because, neither the Registration Office nor the Revenue record reflected the transaction in question. He relied an the decisions in Jesa Ram and others v. Ghulaman and another (A I R 1936 Lah. 816) and Muhammad Din and another v. Mt. Sardar Bibi and others (R I R 1927 Lah. 666)
Mr. S. Sardar Hussain, Advocate, the learned counsel for the respondent defended the concurrent finding of all the three Courts and submitted that all the questions raised by the appellant stand answered.
The question of law and indeed of general public importance is whether a Nikahnama prepared under section 5 of the Muslim Family Laws Ordinance. 1961 (hereinafter referred to as the Ordinance) is compulsorily register able where it mentions the alienation of property in lien ofdower. As pointed out, the Courts have taken the view that the entries in the Nikahnama do not make it an instrument of transfer of property but that it is record of solemnization of marriage which has to be prepared and kept in a particular manner and on a prescribed form. This view appears to be correct because the very opening words of section 5 of the Ordinance distinguish the fact of solemnization of marriage and its registration in proper form andby appropriate authority. Section 5 of the Ordinance reads as hereunder:‑
"5.Registration of marriages.‑‑(1) Every marriage solemnized under Muslim Law shall he registered in accordance with the provisions of this Ordinance.
(2)For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one Ward.
(3)Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance be reported to him by the person who has solemnized such marriage.
(4)Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees, or with both.
(5)The form of Nikahnama, the registers to be maintained by Nikah Registrars,the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of Nikahnama shall be supplied to the parties, and the fees to be charged thereof, shall be such as may be prescribed.
(6)Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under subsection (5) or obtain a copy of any entry therein."
This distinction between the solemnization of the marriage and its being recorded and got registered has been recognized in the case of Arif Hussain and Azra Parveen v. The State (P L D 1982,F.S.C.42). In the context of section 5 of ordinance is clear that solemnization and maintaining a record of it are two different acts. Solemnization of the marriage precedes the completion of the formalities with regard to the preparation of record of it and getting it registered. Even the columns contained in the Nikahnama clearly indicate that they refer to arrangement that has already teen subscribed to by the parties. The record is prepared only to verify the events which have already happened. In such a situation it cannot be taken to be an instrument or document of transfer of property but it has to be taken merely as a record of it.
The other contention was that as independent of the Nikahnama none of the witnesses has appeared to depose about the alienation, it should be taken as not proved. The contemporaneous preparation of a record of events before the controversy has arisen is good evidence for proving the state of facts in controversy. From that point of view, the Nikahnama would be a valuable piece of evidence. Besides, the person who solemnized the marriage appeared as a witness of marriage and of all the recitals contained in the Nikahnama. This evidence would be sufficient in the ordinary course, unless there be strong rebuttal of it, to prove the transaction.
The suggestion of the learned counsel for the appellant "that the Nikahnama produced before the trial Court and admitted in evidence is not correct copy of the contents of the Nikahnama has been advanced before us for the first time and never earlier in writing or orally when the witness was being examined. In view of not having raised any such question at any earlier stage and to have submitted to it being brought on record without objection, the learned counsel cannot now attack its genuineness.
In denying to the appellant protection under section 41 of the Transfer of Property Act, the Courts have taken note of the fact that the two transactions were very recent, taken place within a matter of two years. In such a background and the normal prevailing practice that on the occasion of marriage some land is transferred in favour of the bride, the enquiry cannot be said to be complete without examination of Nikahnama. Not only was the Nikahnama required to be registeredbut a copy of Nikkahnama could be maintained even by the appellant as it was a public document. In the circumstances, the view taken by the High Court that the enquiry cannotbe considered as sufficient on the part of the appellant where he failed to verify from Nikah Registrar's office appears to be correct. This fact that there was another document to be looked into and also that the transaction was a recent one, distinguishes the two cases of the Lahore High Court referred to by the learned counsel for the appellant for claiming protection.
We find that there is no merit in any of the grounds taken up by the learned counsel. The appeal is dismissed with no order as to costs.
AA./F‑89/SAppeal dismissed.
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