Law: Family Courts Act, 1964

Section: 5

Law: Transfer of Property Act, 1882

Section: 41

(a) Family Courts Act (XXXV of 1964)--- ----S. 5, Sched.---Transfer of Property Act (IV of 1882), S. 41---Dower (mehr), recovery of---Property mentioned in Cl.16 of Nikahnama as dower for wife---Suit for recovery of said property was filed by respondent-lady against her mother-in-law and father-in-law without impleading her husband---Subject property was owned by the mother-in-law---Held, that mother-in-law was not a signatory to the Nikahnama nor had executed any other document agreeing to transfer the subject property---Mother-in-law had not permitted her husband, expressly or impliedly, to transfer the property in terms of S.41 of the Transfer of Property Act, 1882 made no attempt to ascertain that the father-in-law had the power to transfer the property---Suit filed by respondent was dismissed with the observation that she could still claim from her husband any part of her dower which remained unpaid. Mother-in-law was not a signatory to the Nikahnama nor had executed any other document agreeing to transfer the subject property, either before or after a house was constructed on it, to her daughter-in-law/respondent. Mother-in-law also did not grant a power of attorney or otherwise authorize her husband to make any commitment on her behalf with regard to the property, let alone to transfer it. PLD 2010 Lah. 119 distinguished. Argument that mother-in-law had permitted her husband, expressly or impliedly, to transfer the property in terms of section 41 of the Transfer of Property Act, 1882 was not borne out by the record. To attract section 41 it had to be established that, the mother-in-law had expressly or impliedly held out that her husband was the "ostensible owner" of the property and had authorized him to transfer the property to the respondent. The other requirements of section 41 were that the proposed transferee had taken "reasonable care to ascertain that the transferor had power to make the transfer" and had "acted in good faith". Mother-in-law neither held out that her husband was the ostensible owner of the property nor that she had authorized him to transfer it. Respondent also led no evidence to show that she had attempted to ascertain that the…

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