MOHAMMAD MUSTAFA Vs. ABU BAKAR

JUDGEMENT

(1.) This is a defendant's appeal by special leave from a suit for partition in a Muslim family. The appellant was the first defendant in that suit. The first respondent brought the suit for partition claiming 14/88 share in the properties detailed in the plaint schedules. The parties to the suit are the heirs of one Sanaullah. The family genealogy is given in the plaint. The correctness of that genealogy is not disputed. It was alleged in the plaint that the properties detailed in the plaint schedules are the joint properties of the parties to the suit. The appellant contested the suit. He contended that his father Sanaullah had three pharmacies; sometime before his death he gifted to each one of his three sons one pharmacy. The pharmacy which was originally known as Darul Adviya was gifted to him, therefore he is the exclusive owner of that pharmacy. He further contended that some of the other items shown in the plaint schedules are his self-acquisitions and hence they are not partible. But it may be noted that the appellant did not take the alternative plea that in the event the court holding that the gift pleaded by him is not true, the other two pharmacies should be considered as joint properties. But he did take a bald plea that the suit was bad for partial partition. On the basis of the pleadings the trial court framed several issues. The only issue that is relevant for our present purpose is issue No. 1 namely:

(2.) No issue was struck in respect of the appellant's plea that the suit was bad for being one for partial partition.

(3.) The trial court came to the conclusion that the properties shown in List A-l, A-2 and B are joint properties and hence liable to be partitioned. It gave the plaintiff 14/88 share in the same. It held that the properties mentioned in C-1, C-2, D-1 and F are individual properties of the appellant.