Saturday, 19 May 2012

Importance of column of Haq Mehar on Nikah Nama

PLJ 2010 Peshawar 139 (DB)

Present: Syed Sajjad Hassan Shah and Liaqat Ali Shah, JJ.

Mst. ISHRAT BANO--Petitioner

versus

NOOR HUSSAIN and 2 others--Respondents

W.P. No. 922 of 2009, decided on 9.6.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Column of Nikah Nama relating to dower amount--Entitlement of gold ornaments or its prevailing market value--Suit for recovery of dower, maintenance allowance, dowry articles and also sought decree for dissolution of marriage--Appellate Court modified the judgment--Dower amount was fixed Rs. 50,000/- as entered in Nikah Nama--Challenge to--Columns relating to dower amount clearly specify that eight tola gold ornaments were agreed to be given at the time of reciting Nikah--Entries had not been challenged at any time before or after institution of suit--Strong presumption of truth is attached to the entries made in Nikah Nama--Payment of dower amount not proved, besides, eight tola gold ornaments had also not been given--Writ petition was accepted to extent that in addition to Rs. 50,000/- as dower amount, the petitioner is held entitled to eight tola gold ornaments or its prevailing market value.           [Pp. 141 & 142] A & D

Nikah Nama--

----Columns of Nikah Nama are sold explanatory--No ambiguity in entries--Rule of interpretation--Document is to be read as a whole and must be given effect to the intention of its maker and the contents to be interpreted in accordance with intent and purpose as being conveyed by entries made in document--No word can be added, engrafted, subtracted and omitted while interpreting the document--When document itself is unambiguous, putting upon its language a speculative opinion or using surrounding circumstances in order to portray the instrument as different in nature is not permissible in law--All the words to be read in context of rest of contents of document and give them their simple or ordinary meanings.   [Pp. 141 & 142] B

1987 CLC 288 & 272, rel.

Nikah nama--

----Interpretation of columns of Nikah Nama--Term and conditions recorded in Column Nos. 13 to 16 of Nikah Nama--Not challenged any of entries--Applicability of Column No. 16 of Nikah Nama--Validity--Columns of Nikah Nama had not properly conceived the true purpose and intent of the maker of document--The words and meanings had been misconstrued and misinterpreted by Appellate Court--Grossly erred in law--Judgment passed by Appellate Court was hereby modified to extent that besides the payment of Rs. 50,000/- as dower amount was entitled for eight tota of gold ornaments/market value to be paid--Petitioner was not entitled for recovery as entries of Column No. 16 of Nikah Nama quite independent in nature relating to payment of dower amount in shape of immovable property and entries of Column No. 16 would not be applicable to the facts of instant case.  [P. 142] C

Mr. M. Hafeez-ul-Ashad Shangla, Advocate for Petitioner.

Mr. Sahibzada Asadullah, Advocate for Respondents.

Date of hearing: 21.5.2010.

Judgment

Syed Sajjad Hassan Shah, J.--Present petitioner questioned the judgment and decree passed by learned Additional District Judge-1, Nowshera dated 19.3.2009, whereby the judgment and decree passed by learned Civil Judge/Judge Family Court dated 6.12.2008, was modified and dower amount was fixed as Rs.50,000/-.

Brief facts of the instant case are that:--

The petitioner has filed the suit for the recovery of dower, maintenance allowance, dowry articles and also sought the decree for dissolution of marriage. The learned Judge Family Court decreed the suit of the plaintiff/petitioner, as prayed for. On appeal filed by the defendant/respondent the learned appellate Court modified the judgment and decree, the dower amount was fixed Rs.50,000/- as entered in the Nikah Nama.

Learned counsel appearing on behalf of the petitioner argued that learned appellate Court while interpreting Nikah Nama misconceived and misinterpreted the entries made in Column Nos. 13, 14 and 16. The plaintiff/petitioner is entitled for the grant of decree as prayed for in her plaint and the learned trial Court has lawfully passed the decree in favour of plaintiff/petitioner, the judgment and decree passed by the appellate Court may be set-aside as without lawful authority and without jurisdiction.

As against this learned counsel for the respondent argued that the entries in columns ibid are not admitting any other interpretation except that only Rs.50,000/- as the dower amount was fixed and entered in the Column No. 13 of Nikah Nama, the entries made in remaining Columns Nos. 14 and 16 are independent in nature not relating to the fixation of dower, therefore, he prayed that the judgment and decree passed by learned appellate Court may be maintained.

Learned counsel appearing on behalf of the parties, heard and record carefully perused.

Perusal of the entries made in the above referred columns of Nikah Nama Ex.PW-1/1 reveal that there is no ambiguity in all the three columns about any of the matters relating to dower amount. Column No. 13 is about the fixation of dower amount, thus Rs.50,000/- entered as dower amount, fixed at the time of Nikah. Column No. 14 is about the mode of payment of dower amount, thus recorded therein as "payable on demand" and "eight tola gold". Column No. 15 is about the detail of payment of dower amount at the time of marriage but the same is left blank, meaning thereby that nothing has been paid at the time of Nikah/marriage. Similarly, Column No. 16 is about the detail of immovable property, if any transferred made in lieu of dower or its any part? with a detail of its particular and value agreed upon in between the parties.

The detail referred to above regarding the columns relating to dower amount clearly specify that eight tola gold ornaments were agreed to be given by defendant/respondent to the plaintiff/petitioner at the time of reciting Nikah. These entries have not been challenged at any time before or after institution of suit, under the law Nikah Nama is treated at par with the registered deed, therefore, strong presumption of truth is attached to the entries made in Nikah Nama. The above mentioned gold ornaments are to be given in addition to dower amount of Rs.50,000/-. The payment of dower amount not proved, besides, eight tola gold ornaments has also not been given. The reference made of five marlas plot in Column No. 16 towards the payment of dower amount mentioned in Column No. 13. It does not create any independent right in favour of plaintiff/petitioner in addition to the dower amount recorded in the said column. Notwithstanding, no boundaries or any detail of the plot mentioned in the Nikah Nama.

Plain language of all the above referred three columns of nikah nama are self explanatory, we find no ambiguity in the said entries. Well settled rule of interpretation is, that the document is to be read as a whole and must be given effect to the intention of its maker and the contents to be interpreted in accordance with intent and purpose as being conveyed by the entries made in the document. No word can be added, engrafted, subtracted and omitted while interpreting the document. When the document itself is unambiguous, putting upon its language a speculative opinion or using surrounding circumstances in order  to  portray the instrument as different in nature is not permissible in law, however, it can be employed in order to throw light on meanings thereof, all the words to be read in context of rest of the contents of the document and give them their simple or ordinary meanings. Reliance placed on judgment titled "Bank of Oman Ltd. Versus East Asia Trading Company Ltd". Reported in 1987 CLC 288 reproduced as under:--

"Consensus ad idem, doctrine of--For construing a document, contracting parties would be deemed to be consensus ad idem with regard to essential terms of contract--Court while construing a document would be required to analyze it objectively so as to find implied intention, of fact of contracting parties, if circumstances of case, so required".

In another judgment titled "Pakistan State Oil Company Ltd. Versus Burmah Oil Public Limited Company". Reported in 1987 CLC 272 following observations are made:--

"Court has duty to spell out real meaning of expression, used in contracts and to discover and discern real intention of parties behind those expressions".

The parties are conscious of the matter in issue, therefore, they have agreed upon to the terms and conditions recorded in Column Nos. 13 to 16 of the Nikah Nama. They have not challenged any of the entries mentioned above, even in the present proceeding.

Learned appellate Court while interpreting the aforementioned columns of Nikah Nama has not properly conceived the true purpose and intent of the maker of the document. The words and meanings have been misconstrued and misinterpreted by the learned appellate Court, therefore, grossly erred in law, thus, the judgment passed by learned appellate Court is hereby modified to the extent that besides the payment of Rs.50,000/- as dower amount the plaintiff/petitioner is entitled for eight tola of gold ornaments/market value to be paid by Noor Hussain, defendant/respondent to the plaintiff/petitioner, but she is not entitled for the recovery of plot as mentioned in relief "Alif" of the plaint, as the entries of Column No. 16 of Nikah Nama quite independent in nature relating to the payment of dower amount in the shape of immovable property and the entries of Column No. 16 would not be applicable to the facts of the instant case.

In view of the above reasoning, this writ petition is accepted to the extent that in addition to Rs.50,000/- as dower amount, the petitioner is held entitled to eight tola gold ornaments or its prevailing market value.

(R.A.)  Petition accepted.


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