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2021LHC6761
2021LHC6761
JUDGMENT SHEET
IN THE LAHORE HIGHT COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
W.P No.5899 of 2020
JUDGMENT
Date of Hearing. 21.09.2021.
Petitioners by: Mr. Muhammad Naeem Bhatti, Advocate.
Respondent by: Rao Muhammad Ashraf Idrees and Dr.
Malik M. Hafeez, Advocates.
Assistance Rendered by: Muhammad Javed Khan and Miss Mehwish
Mahmood, Research Officers.
respondent No.3 vide its judgment and decree dated 19.11.2019, in the
following terms:-
“The plaintiff towards dower is entitled to receive Rs.500/- and
04-K from the property of original defendant (Rahim Bux
deceased) in Mouza Awal Khan, Tehsil Khairpur Tamewali or
in alternative its market value prevailing on the date of death of
plaintiff’s husband Muhammad Shahzad Khan (05.12.2015),
mode and value to be determined by the learned executing court
during execution, from the defendants (legal heirs of original
defendant) as per their proportionate share in the inheritance of
original defendant. No order as to costs.”
Being dissatisfied with the aforesaid judgment and decree, the petitioners
preferred an appeal, which was dismissed by learned Addl. District Judge,
Hasilpur, vide its judgment and decree dated 27.08.2020. Hence, this writ
petition.
3. Arguments heard and record perused.
4. The main thrust of argument of learned counsel for the petitioners is
that as husband of respondent No.3 died on 05.12.2012, she filed the suit on
02.05.2017 i.e. after lapse of more than 04 years and 05 months which ought
to have been brought within a period of three years after the death of her
husband, therefore, suit of respondent No.3 was badly time barred. They
produced photocopy of Death Certificate of the deceased Muhammad
Shehzad Khan (Mark-A) to substantiate their claim. On the other hand,
learned counsel for respondent No.3 contended that since her husband died
about 1 ½ years prior to the institution of the suit, hence the suit is well
within time and to fortify her claim, she also produced Death Certificate
(Exh.P-2). Exh.P-2 is certified copy while Mark-A is photocopy of Death
Certificate of the deceased husband. Exh.P-2 being a public document
enjoys presumption of truth qua its entries. Muhammad Imran, Secretary
Union council Inayati, Teshil Khairpur Tamewali (DW-1) brought the
original death record register and according to him, Exh.D-1 is correct copy
as per record, the particulars of Exh:P-2 and Exh.D-1 are the same and entry
is available at Serial No.18 of the register. As per Death Certificate (Exh.P-
2), Muhammad Shehzad Khan, husband of respondent No.3 and brother of
the petitioners died on 05.12.2015. Neither the petitioners produced
certified copy of Death Certificate Mark-A nor they got summoned the
original record of said document, as such, said document has no evidentiary
W.P No.5899 of 2020 3
value and is inadmissible, thus discarded. Hence, in view of the above, the
suit of respondent No.3 is well within time.
5. The next argument of learned counsel for the petitioners is that the
suit for recovery of dower against father of the husband (father-in-law) being
incompetent, is not maintainable, However, suffice it is to say that the suit
for recovery of dower can validly be filed against father-in-law. Under
Islamic law, nikah is a civil contract which binds the parties. Such contract
can be made/solemnized through agent/wakeel. According to legal and
Arabic dictionary the word wakil/vakil mean & define as under:
The law of Lexicon with Legal Maxims and Words and
phrases reprint Edition 1996 at page 1329: -
(Page 1104)
The term “Wakalat” has further been explained at page 648 of the said Book
in the following words: --
JUDGE
*Siddique*