Law: Partition Act, 1893

Section: 9

Law: Family Courts Act, 1964

Section: 5,Sched

Partition Act (IV of 1983)--- ----S.9---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Suit for partition---Suit for partition of house of deceased father of the plaintiff---Divorced wife of deceased filed application for impleading her as party in the suit---Said application had concurrently been dismissed by the Trial Court and Appellate Court---Validity--Claim of the divorced wife of deceased was that she was the owner to the extent of 1/2 share in the suit house which was the legacy of her late husband; and that she was necessary party in the lis pending in the court between the parties---Lady who had obtained Khula' from her husband had claimed that fact of Khula' would never deprive her from her right as she had not specifically abandoned her share in the suit house---Contention of counsel for the plaintiff was that the lady had waived her rights of 1/2 share in the suit house at the time she got the decree for dissolution of marriage on the basis of Khula' and that she could not claim the same---Principle of Khula' was interpreted in the light of the dictates of Holy Qur'an and Sunnah to the extent and effect that when married parties disagreed and were apprehensive that they could not observe the bonds prescribed by Divine Law, woman could release herself from the marital tie by giving up some property in consideration of Khula' by the husband---In the present case, deed through which half of the share of the suit house was given to the lady, had not been rescinded on the day on which the Khula' was obtained by her from her husband---Order of the Family Court had also not specifically mentioned as to what were those privileges which were bestowed upon the lady by her husband and as to how much were to be taken back in the exchange of the Khula'---Petitioner, in circumstances was still the owner to the extent of 1/2 share on behalf of her late husband; and it would yet to be determined by the Trial Court as to whether she was entitled to the half of her share in the legacy of her late husband or otherwise---Lady should be impleaded as party in the lis pending between other legal heirs of the deceased---Judgments and orders of the courts…

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