Law:

Section:

(a) Civil Procedure Code (V of 1908)-- O. VI, r. 6-Muhammadan Law-Gift-Pleadings-No specific issue framed as to non-delivery of possession by donor yet High Court finding delivery having not been made by donor-Finding. held, extraneous to record and thus not firmly founded. -[Gift-Pleadings Muhammadan Law]. (b) West Punjab Muslim Personal Law (Shariat Application Act (IX of 1948) .-- [As amended by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951), S. 2]-Contention that in view of observations in P L D 1956 Lah. 934 notwithstanding amendment in Act including "gift" in matters to be governed by Shariat, parties still governed by custom and as such doctrine of maraz-ul-maut not applicable to case-Held : Not correct-Observations in P L D 1956 Lah. 934 cannot be construed as amounting to ouster of Islamic provisions relating to gift and rendering nugatory provisions inserted by Amending Act of 1951-Petitioner himself set up gift of ancestral property as basis of his claim which notwithstanding amendment of 1951 was found subject to customary restrictions.-[Gift]. In support of his argument for the non-applicability of the Muslim Personal Law, petitioner's counsel relied on the following observation from the of Mr. Justice S. A. Rahman the then Chief Justice of the West Pakistan High Court in P L D 1956 Lah. 934: "It is clear at the same time that the position of the limited female owner mentioned in section 3 of the 1948 Act, which has been left unamended, would remain as before and her powers to deal with the property in her possession, would continue to be regulated by customary rules. This indicates that even by the 1951 amendment, the Legislature has not effectually put an end to all customary estates that exist. But if I am right in holding that even the male owner inheriting under custom is not really a full owner but, in a sense, a limited owner, it would be quite logical to say that even by way of gift of ancestral property, the male-holder can transfer no more than what he possesses. From the very nature of the case, a gratuitous transfer by way of gift of ancestral property, is not one supported by legal necessity, and where…

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