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Civil Petition for Special Leave to Appeal No. 100 of 19 7.2, decided on 4th July 1972.

(On appeal from the judgment and order of the Lahore High Court dated the 29th September 1971, in R. S. A. No. 46 of 1971).

Muhammadan Law

‑Gift‑Mushaa‑Gift of a share of undivided property‑.Quite valid under Muslim Law.

Sonaullah Fakir v. Alain Fakir and others 1968 S C M R 311(2) and Sheikh Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others 16 1 A 205 ref.

M. Aslam Chattha, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 4th July 1972.

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.

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.

Leave refused.

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