SAHIB DAD vs MUHAMMAD AJAIB AND Another
This petition for leave to appeal challenged the validity of a gift of undivided property, specifically raising the doctrine of mushaa under Muslim Law. The petitioner argued that the gift of an undivided share in property was invalid. The Supreme Court of Pakistan addressed the core legal question of whether the doctrine of mushaa renders a gift of an undivided share in property invalid under Muslim Law. The Court dismissed the petition, holding that the contention regarding the invalidity of the gift of mushaa lacked merit. Relying on established precedent, the Court affirmed that a gift of a share of undivided property is valid under Muslim Law. The Court reiterated the principle that the doctrine relating to the invalidity of a gift of mushaa is unadapted to a progressive state of society and must be confined within the strictest rules. Consequently, the Court found no force in the petitioner's argument and upheld the validity of the gift, thereby dismissing the petition.
- Is a gift of a share of undivided property valid under Muslim Law?
- Does the doctrine of mushaa render a gift of undivided property invalid in a progressive state of society?
ORDER
1. WAHEEDUDDIN AHMAD, J.-Office note shows that the petition is barred by 56 days. The delay is condoned as the petitioner was asked to move the High Court for certificate under clause 10 of the Letters Patent. This order was made after the power of the high Court to grant certificate has been taken away.
2. On merits there is no force in the petition. The contention of the petitioner is that the gift of mushaa is not valid. This con--tention has no longer any force. In the case of Sonaullah Fakir v. Alain Fakir and others (1968SCMR311), this question was considered by a Bench-of this Court. It was held that gift of 1/3rd share of undivided property by Osman Fakir in favour of Soleman was hit by the doctrine of mushaa is also devoid of force. It is now a well-settled rule that gift of a share of undivided property is under Muslim Law quite valid. Reliance was placed on the decision of the Judicial Committee in Sheikh Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others ((2)161 A205), in which their Lordships observed that the doctrine relating to the invalidity of gift of mushaa is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules. In this view of the matter, the petition is dismissed.