1986 PLP 118 (CLC)

(b) Muhammadan Law‑‑ ‑‑‑Gift‑‑Requirements‑‑Fact that gift was not in writing or that possession was not transferred under gift, held, was of no consequence, writing being not necessary in gift by a Musfiim and delivery of possession in gift of Musha was not necessary as all parties of undivided share were presumed to be in constructive possession. Present : Hassan Akbar, Sami Ahmad Syed and Abdul Sattar Lakhani. Civil Miscellaneous Application No. 4074 of 1984. This application under Order I , rule 10, C . P . C . has been made by Aftab son of Rajab Ali an intervenor for being joined as a party in a suit for partition on the ground that he was gifted a share of the property by deceased Wajid Ali, defendant No.l. The intervenor is represented by Mr. Abdul Sattar Lakhani. The application has been contested by the plaintiff who was represented by Mr. Hassan Akbar as well as certain defendants who were represented by Mr. Sami Ahmad Syed respectively. I have heard all the three Advocates at length and have gone through the R&P of the case. The contention of intervenor's Advocate Mr. Abdul Sattar Lakhani, in brief was that he being the donee of one of the heirs namely Wajid Ali, was entitled to be joined as a necessary party in this suit which was for partition. He has relied upon a number of rulings, the material ones are I L R 14 All. 553, A I R 1940 All. 399 and P L D 1967 Kar.

439. The ratio decidendi of all these rulings is that in a suit for partition all the heirs and other persons claiming a right or interest in the property of the deceased were necessarily and properly to be joined as party. The Advocates of the other side, though argued to the contrary, had to concede that this proposition of law was sound. They however, tried to distinguish the present case, by arguing that it was the duty of the intervenor to show that he had prima facie evidence of his title or right in the property, which he has not shown. They have alleged that claim of the intervenor is frivolous and mala fide. It was pointed out by them that the intervenor had not alleged about the gift in the earlier administration suit between the parties. The above argument is not legally sound. In P L D 1974 Kar. the application for impleading the daughter of the deceased was opposed on the ground that she was not the daughter of the deceased. Mr. Justice Qadeeruddin, J. (as he then was) left over the consideration A of objection for the trial and ordered that she be impleaded as the party. Hence it is not correct to argue the intervenor has to prima facie establish his title before becoming a party. Apart from that it would appear from the record that intervenor was made party in the earlier administration suit and that he had raised the claim of being donee of the deceased in that suit. The intervenor's claim, therefore, does not seem to be frivolous. The mere fact that the gift is not in writing or that it is claimed by the other side that the possession is not given is of no consequence because writing is not compulsory in a gift by a Muslim. Similarly in case of a gift of Mushaa, that is undivided share delivery of possession is not necessary as all the parties are presumed to be in constructive possession. I, therefore, allow the application of the intervenor and direct that he be joined as a defendant. Let amended plaint be filed on or before the next date of hearing (to be given in office). A . A . Application allowed.