PLJ
2010
Present:
Muhammad Safdar Khan Sikandri,
J.
Mst. IQBAL BIBI--Petitioner
versus
Mst. MARYAM BIBI and 5
others--Respondents
C.R.
No. 7 of 2009, (PAN), decided on 25.5.2010.
Principle
of Khulla--
----Interpretation
in light of dictates of Holy Quran and Sunnah--Extent and effect--When married parties disagree
and were apprehensive that they could not observe the bonds prescribed by
divine law, woman could release herself from merital
tie by giving up some property in consideration of Khulla
by husband, meaning thereby that the husband would be at liberty to leave some
of prerogative with wife at the time of declaring of Khulla. [P. 165] A
Civil
Procedure Code, 1908 (V of 1908)--
----Ss.
115 & 151--Civil revision--Application for impleadment
as party--Could not be deprived of valuable property before recording evidence
and verdict of competent Court and requested for her impleadment
in lis--Validity--Deed through which half of the
share of suit house was given to the petitioner has not been rescinded on the
day on which khulla was obtained--Unregistered deed
remained in her possession--Without touching the merits--Held: Petitioner was
still the owner to the extent of share
on behalf of her late husband and it will yet to be determined by trial Court
as to whether she was entitled to the half of her share in legacy--Petitioner
be impleaded as party in lis
pending between the other legal heirs as defendants with the exception have
shown the willingness in writing for her impleadment--Further
held: If an adverse order is passed against her, she will be deprived of her
valuable property and it will give rise to multiplicity of litigation in the
long run--Petitioner would be allowed to be impleaded
as a party in the suit--Revision was allowed. [P.
166] B, C & D
PLD
2003 Pesh. 146, 2004 CLC (Lah.)
1932 & PLD 2003 Pesh. 169,
rel.
Mr.
Abdullah Khan Gandapur, Advocate for Petitioner.
Mr.
Jamal Abdul Nasir Awan,
Advocate for Respondents.
Date
of hearing: 25.5.2010.
Order
This
civil revision petition is directed against the order dated 05.6.2008 passed by
Additional District Judge-I, D.I.Khan whereby the
appeal filed by the petitioner against the order dated 07.2.2007 passed by
Civil Judge-IV, D.I.Khan, dismissing the application
of petitioner for impleadment as party, was
dismissed.
2. The facts giving rise to the instant revision
petition are that Mst. Maryam
Bibi brought a suit in the trial Court for possession
through partition of a house fully described in the heading of the plaint.
During the pendency of that suit, Mst.
Iqbal Bibi petitioner
submitted an application for her impleadment as party
to the suit. The application was contested by Mst. Maryam Bibi (plaintiff) and after
hearing the arguments of counsel for the parties, the learned trial Court
dismissed the application of the petitioner vide order dated 07.2.2007.
3. Having felt aggrieved from the impugned order
dated 07.2.2007, the petitioner filed appeal which too was dismissed vide
judgment dated 05.6.2008 passed by Additional District Judge-I, D.I.Khan.
4. Learned counsel for the petitioner contended
that prima-facie petitioner is the owner to the extent of share in the disputed house which is
the legacy of late Khuda Bakhsh
and she is necessary party in the lis pending in the
Court between the parties. He further urged that the Courts below have arrived
at a wrong conclusion and have misapplied the relevant law on the subject and
the controversy regarding the factum of Khulla will never deprive the petitioner from her right as
she has not specifically abandoned her share in the suit house. He urged that
the Courts below have not correctly appreciated the legal position with regard
to the consequences of dissolution of marriage on the basis of Khulla and the proposition advanced by the Courts below is
erroneous while passing the impugned orders by ignoring the law laid down by
the superior Courts in consequence of Khulla. He
further urged that being the owner of share in the suit house, she has every
right and locus standi to be impleaded
as a necessary party in the suit of partition and she could not be deprived of
her valuable property before recording evidence and verdict of competent Court
and requested for her impleadment in the lis. Counsel for the petitioner relied on PLD 2003 Peshawar
146 and unreported judgment of this Court in W.P. No. 352/2004 decided on
29.3.2005.
5. On the contrary, learned counsel for
respondent-plaintiff Mst. Maryam
Bibi urged vehemently that during proceedings in
Family Court, Peshawar, Mst. Iqbal
Bibi petitioner his recorded her statement on
16.12.1996 whereby her case for dissolution of marriage was decided on the
basis of Khulla wherein she has categorically
surrendered the dower and maintenance allowance in lieu of getting a decree for
dissolution of marriage on the basis of Khulla and
she will not file any suit in future for dower and maintenance allowance
mentioned in the heading of the plaint, therefore, she is debarred to
claim share given to her by her late
husband namely Khuda Bakhsh
as she had claimed share in the heading
of the plaint and as such, her petition may be dismissed being not entitled for
impleadment as party. Learned counsel for the
respondent relied on 2004 CLC Lahore 1932 and PLD 2003
6. The submissions addressed at the bar were
viewed in the light of materials on record.
7. Undoubtedly, the petitioner had brought a
suit against late Khuda Bakhsh
regarding dissolution of marriage, recovery of dower i.e. ten tolas gold ornaments, pacca house
measuring 05 marlas situated at Mohallah
Nizam Khan, DI.Khan and Rs. 1,000/- cash and recovery of Rs.36,000/- as maintenance
allowance for the past three years at the rate of Rs.1000/- per month till
final disposal of the case.
8. As contended by counsel for the petitioner,
the petitioner is owner to the extent of
share in the house referred to above on the basis of Kabin
Nama dated 10.7.1971 executed between Mst. Iqbal Bibi
and Khuda Bakhsh in
presence of two marginal witnesses. In view of clause (7) of the said
unregistered deed,
share of the house in question was given to the petitioner by her
late husband for the matrimonial obligations. As envisaged from the decision
passed by the Family Court, Peshawar on 16.12.1996, the petitioner got the
decree on the basis of Khulla against the defendant
and she in her statement, has categorically stated that in future she will not
file any suit for the recovery of dower and maintenance mentioned in the
heading of the plaint. Now the question arises that share of house was also claimed by her
in the suit instituted in the Family Court at Peshawar and she has undertaken
that she will not bring the suit in future and it is true that since the date
of decree in 1996, she has never brought a suit regarding any item claimed in
the earlier suit but now wants to plunge as party in the lis
pending between the other legal heirs of deceased Khuda
Bakhsh. As contended by counsel for the respondent,
the petitioner has waived her rights of share in the suit house at the time
she got the decree for dissolution of marriage on the basis of Khulla and she cannot claim it now. In this regard, 1 will
draw wisdom from an authority reported in PLD 1969 SC 97 wherein it is held
that,
"It
is necessary for the Court to ascertain in the case of Khulla
what benefits have been conferred on the wife by the husband as consideration
of the marriage and it is in the discretion of the Court to fix the amount of
compensation."
9. Now, in view of the above dictum, it is to be
seen that the wife will surrender all the benefits to the husband or she would
be entitled to retain some of the privileges given to her by her husband. In
the case of dissolution of marriage of the present petitioner, she has grounded
her plaint on the basis of couple of allegations but the factum
of dissolution of marriage cropped up during the trial which culminated into
the dissolution of marriage on the basis of Khulla,
thus, she will waive all the rights accrued to her in view of the above
authority but in juxtaposition to the same proposition, if the verdict
enshrined in the case of Fazle Subhan
Vs. Mst. Sabireen (PLD 2003
Peshawar 169) is viewed, the principle of Khulla was
interpreted in the light of the dictates of Holy Quran
and Sunnah to the extent and effect that when married
parties disagree and were apprehensive that they could not observe the bonds
prescribed by the divine law, woman could release herself from the merital tie by giving up some property in consideration of Khulla by the husband,
meaning thereby that the husband would be at liberty to leave some of
the prerogatives with the wife at the time of declaring the Khulla.
Apparently, the deed through which half of the share of the suit house was
given to the petitioner has not been rescinded on the day on which the Khulla was obtained by the petitioner from her husband and
till yet the unregistered deed remained in her possession. The order of the
Family Court has also not specifically mentioned that what are those privileges
which were bestowed upon the petitioner by her husband and how much were to be
taken back in the exchange of the Khulla, therefore,
without touching the other merits of the case, I have reached to this
conclusion that the petitioner is still the owner to the extent of share on behalf of her late husband and it
will yet to be determined by the trial Court as to whether she is entitled to
the half of her share in the legacy of Khuda Bakhsh or otherwise. I deem it appropriate that she be impleaded as party in the lis
pending between the other legal heirs of late Khuda Bakhsh as the defendants-respondents with the exception of
Respondent No. 1 have shown the willingness in writing for her impleadment. Moreso, in the
absence of her being party to the suit, if an adverse order is passed against
her, she will be deprived of her valuable property and it will give rise to
multiplicity of litigation in the long run, therefore, it is in the fitness of
things that she should be allowed to be impleaded as
a party in the subject suit and hence, the revision petition is accepted, the
judgments and orders of the Courts below are set-aside and the application of
the petitioner for her impleadment as party to the
suit is allowed and she should be entered as defendant by the trial Court by
making addition in the plaint.
(R.A.) Application
allowed.