1. ' NADEEM AZHAR SIDDIQI, J.--- By this application the plaintiff has prayed for impleading the legal heirs of deceased defendant No,1 who expired at Karachi on 17-6-2008. In the affidavit in support of the application it has been stated that despite the death of the deceased defendant No,1 the right to sue survives against his legal heirs.
2. ' Learned counsel for the defendant No,1 has filed objection stating therein that the relief claimed in the suit specially relief Nos. "B" to "E" relates to the personal actions connected with the deceased defendant No,1 personally and the personal right of action died with him and the right of plaintiffs to sue the legal heirs of the deceased do not survive.
3. ' Learned counsel for the plaintiff submits that the suit was filed claiming right in the immovable properties left by the father of plaintiff and the defendants and the properties acquired by the defendant No,1 from the fund generated from the disposal of inherited properties. He then submits that the prayers "A" and "B" relate to the right in the property and since the deceased was claiming the properties in his own right which right has been inherited by his legal heirs the right to sue survived against them. Learned counsel has relied upon the case of Muhammad Iqbal and 2 others v. Ghulam Ali Shah PLD 1975 Lah.
4. 1205.
5. ' Learned counsel for the defendants submits that the application is not maintainable, as the plaintiffs have no right in the properties left by the deceased. He then submits that some of the proposed defendants are minors and without an application under Order XXXII, C.P.C. They cannot be impleaded as party to the proceedings. He also submits that the sale-deed of the house situated in D.H.A. Karachi is in the name of the deceased defendant No,1 and the plaintiff cannot claim any right in the same. He then submits that due to death of the defendant No,1 the suit stands abated and the prayer clauses "B" to "E" become redundant. Learned counsel has relied upon the following reported cases:---
(1) Wali and others v. Manak Ali and others PLD 1965 SC 651,
(2) Agricultural Development Bank v. Sanaullah Khan PLD 1988 SC 67 and (3) Ali Muhammad Mirza v. Mst. Sardaran PLD 2004 SC 185.
6. ' The suit has been filed claiming rights in the immovable property on the plea that the defendant No,1 is Benami. The term right to sue refers to the right to seek same relief which the party seeking at the time of death of other party and the legal heirs merely continues the proceedings and it is the original party right and disabilities that have to be considered. The rule is that all rights of action existing in favour of, or against a party survive, but personal actions connected with individuality of the deceased do not survive.
7. ' In the case reported as Wali v. Manak Ali PLD 1965 SC 651 the Honourable Supreme Court has laid down the following criteria to determine as to when the abatement would occur in totality and when in partiality:---
(i) that the suit or appeal would be imperfectly constituted in the absence of the deceased party;
(ii) that a decision on the merits may result - in consistent decrees, and
(iii) that an effective decree cannot be passed against the living party.
8. ' In the reported case of Ali Muhammad Mirza v. Mst. Sardaran PLD 2004 SC 185 the Honourable Supreme Court has held as under: "So long as a right is referable to the individuality of a person, it does not survive at the death of that person. The general rule is that all causes of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his legal representatives.
9. This principle is found enacted in the Succession Act as well, with the only exception that rights intimately connected with the individuality of the deceased will not survive, based on the famous maxim action personal is monitor cum personal--a personal right of action dies with the person. A right to sue, other than intimately connected with the individuality of the deceased, will always survive to or against his legal representatives."
10. ' From the pleadings and the prayer clause it is clear that the rights in the property have been claimed and the same cannot be said to be personal right of action, therefore, the suit cannot be abated.
11. 'As far as the contention of the learned counsel for defendant that some proposed defendants are minors an appropriate application can be filed and on this ground the application for impleading legal heirs of deceased defendant cannot be rejected.
12. ' In view of the above, the listed application is allowed as prayed. Amended titled be filed within fifteen days and notice may be served upon the newly added defendants.
13. ' The application is disposed of in the above terms.