1. S. A. RAHMAN, J.-This appeal by special leave has arisen in the following circumstances.
2. A suit was instituted by Mst. Tajwar Sultan and Mst. Channo, for a declaration that they were the sole heirs of their mother, Mst. Miranjan and that the defendants, who were the husband or the children of a pre-deceased sister of theirs, had no share and interest in the properties left by the said Mst. Miranjan. During the pendency of the suit, Mst. Channo died. Her co-plaintiff, Mst. Tajwar Sultan, put in an application, alleging that she herself and the husband of Mst. Channo were the only surviving legal representatives of the deceased and prayed that the husband may be brought on the record as a party. The trial Judge, in the presence of the parties' counsel, recorded an order on the 14th January 1956, making Jamadar Muhammad Yunus Khan, the husband of Mst. Channo, a party to the suit, and directed notice to issue to him for the 13th February 1956. Apparently, at that stage, no objection was raised, on behalf of the defendant, that the deceased had left other legal representatives.
3. It was on the 2nd June 1956, that the defendants moved an application in the trial Court, alleging that Mst. Ruqia and Mst. Maqbool Jan, two consanguine sisters of the plaintiff, were also legal representatives of Mst. Channo, and as they had not been brought on the record, within the time allowed by law, the suit had abated. It was prayed that under Order XXII, rule 5, Civil Procedure Code, investigation may be made in the matter and the proceedings in the case be held over for the time being. This application was contested on behalf of Mst. Tajwar Sultan who maintained that Mst. Channo had left only herself and Jamadar Muhammad Yunus Khan, as her legal representatives. It was denied that Mst. Ruqia and Mst. Maqbool Jan were consanguine sisters of the plaintiff.
4. The trial Judge held an enquiry into the matter. After dis--cussing the evidence adduced by the parties, he came to the conclusion that Mst. Maqbool Jan and Mst. Ruqia were the sisters of the deceased lust. Channo. He, however, entertained a doubt about their existence. It was observed that if they were is the land of the living, there was no reason why their cause should be pleaded by others. It was also held that during the pendency of the suit, Mst. Channo had transferred her entire share in the property in dispute, to Mst. Tajwar Sultan and, consequently, the heirs of Mst. Channo were left with no interest in the property. In the end, it was added that even if it be proved that Mst.
5. Maqbool Jan and Mst. Ruqia had any intermit in the property in suit and that they were alive, their non joinder would not be fatal to the suit. With these observations the defendants' application was dismissed by order, dated the 24th September 1956.
6. The defendants went up in revision to the High Court of West Pakistan, Peshawar Bench. A learned Single Judge of the High Court took the view that it was doubtful whether the con--sanguine sisters of the deceased plaintiff were alive, as they had not been produced in Court by the defendants.
7. The learned Judge, however, went on to say that even if it be assumed for the sake of argument that these two ladies were alive, the defendants would be confronted with another insurmountable obstacle in so far as Mst. Maqbool Jan and Mst. Ruqia being step-daughters of Mst. Miranjan would not be entitled to inherit any share in her property and it was the property left by Mst. Miranjan that was under adjudication in the suit. Thirdly, the learned Judge was of the opinion that, as during the pendency of the suit, Mst. Channo had transferred her entire right in the suit-property in favour of her sister, Mst. :ajwar Sultan, by two registered gift deeds, the latter alone was the legal representative of Mst. Channo, in respect of the suit-property. The revision petition was, therefore, dismissed with costs, by order dated the 19th March 1957.
8. On the 27th of June 1957, Mst. Maqbool Jan herself put in an application in the trial Court, praying that she may be impleaded as a legal representative of Mst. Channo, on the basis that she was her sister. That application too was contested by aIst. Tajwar Sultan and by order, dated the 26th of November 1957, the trial Judge held that the previous finding that this lady was dead and was not a necessary party to the suit, could not operate as res judicata, for the reason that Mst. Maqbool Jan was not a party to the earlier proceedings. He held, however, that she was not a necessary party, basing this finding on the observations of the learned Judge of the High Court in the order, dated the 19th March 1957. He remarked that Mst. Maqbool Jan being the step-daughter of Mst. Miranjan was not obviously entitled to inherit any share in the property of her mother and could not therefore be described as a legal representative of Mst. Channo. He also reiterated the objection that Mst. Channo had transferred her entire rights in the suit-property to Mst. Tajwar Sultan, by gift, during the pendency of the suit. 'The application of Mst. Maqbool Jan was, therefore, dismissed.
9. The order of the trial Judge was challenged by Mst. Maqbool Jan by submitting a revision petition to the High Court, but the same learned Judge, who had dealt with the matter earlier, dismissed the petition on the ground that it was not clear whether Mst. Maqbool Jan would inherit any share in the estate of Mst. Channo, as she bad transferred her interests in the property to Mst. Tajwar Sultan by gift. In any event, whatever the ultimate result of the suit, the learned Judge thought that it would not affect the right of Mst. Maqbool Jan, if any, in the property as the decree would not be binding on her, if she was not made a party. The learned Judge refused to accede to the contention that she was entitled to be impleaded in the suit, being a necessary party. He thought that there was no reason to inflict her on the plaintiff who had omitted to join her in the suit, at her own risk.
10. Special leave to appeal was granted in this case to consider whether a Court can refuse to implead a necessary party to the suit, on the ground that the surviving plaintiff or plaintiffs, dis-- puted such a party's right to any interest in the property in suit and was unwilling to bring on record such a party and whether the decree passed in a suit, in which only some of the deceased plaintiff's heirs and legal representatives were brought on the record, will bind all the heirs and legal representatives of such plaintiff.
11. We have heard Mr. Ghias Muhammad in support of the appeal and Mr. Mahmud A.I for the respondent. It appears that while Mst. Maqbool Jan's revision petition was pending in the High Court, she herself died and she was replaced by her daughter, Mst. Jamshed and her husband, Haji Muhammad Khan, as her legal representatives.
12. It appears to be fairly clear that the High Court as well as the trial Judge in this case misconceived the position, in respect of the alleged gifts made by Mst. Channo in favour of Mst. Tajwar Sultan. It was recited in the application made by Mst. Tajwar Sultan herself, for impleading the legal representatives of the deceased in the case on 14-1-56, that Mst. Channo Bibi had only transferred a part of the suit-property to her, by two gift deeds. This is also consistent with her prayer that the husband of Mst. Channo Bibi be brought on the record as one of her legal representatives, the other representative being herself. If the whole of the share of Mst. Channo Bibi, in the suit-property had been transferred by gift, even her husband should not have been impleaded as a party.
13. The second ground that prevailed with the Courts below, in turning down the application of Mst.
14. Maqbool Jan, was that under Muhammadan Law she would not be an heir of Mst. Miranjan. The question, however, was not whether she was the heir of Mst. Miranjan but whether she was entitled to any share in the property left by Mst. Channo Bibi. If it was correct, as the learned trial Judge seems to have found, that Mst. Maqbool Jan and Mst. Ruqia were consanguine sisters of Mst.
15. Channo Bibi, they would be her heirs under the Muslim Law. A reference in this connection may be made to the table of sharers, at p. 56-A of Mulla's Muhammadan Law. The learned trial Judge as well as the learned Single Judge of the High Court, misdirected themselves in assuming that even if the relationship set up by Mst. Maqbool Jan was established, she could not be interested in the property in suit.
16. The third consideration, mentioned in the High Court judg--ment that if Mst. Maqbool Jan was not made a party to the suit, it would not affect her rights and that she could bring a separate suit to establish those rights, loses sight of the fact that one of the plaintiffs in the suit had died and had to be replaced by her legal representatives. Mst. Maqbool Jan claimed to be one of such legal representatives and she was, therefore, a necessary party to the suit, if the relationship set up by her was correct. Mr. Ghias Muhammad relied on rule 10 of Order I of the Code of Civil Procedure, which provides that if the trial Court thinks that it is necessary for the determination of the real matter in dispute so to do, it may order any other person to be substituted for a plaintiff, or add as a plaintiff, upon such terms as the Court thinks just. This rule is obviously aimed at avoidance of multiplicity of proceedings. " It has to be read with rule 5 of Order XXII of the Code, which reads as follows :- "Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Courts"
17. Mst. Maqbool Jan bad laid a claim that she was the legal representative of Mst. Channo Bibi. It was incumbent on the trial Court to decide that question, despite the contest raised by Mst. Tajwar Sultan. If the interests of Mst. Tajwar Sultan and Mst. Maqbool Jan conflicted, she could be made a defendant in the suit. Rule 3 of this Order is also relevant. Sub-rule (1) of this rule provides that where one of two or more plaintiffs dies, and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit. It is thus quite clear that the application of Mst. Maqbool Jan was in order and should have been adjudicated upon on the merits of her contentions.
18. Mr. Mahmud A.I tried to take his stand on the fact that earlier, when the question was raised as to who were the legal representatives of Mst. Channo Bibi, the parties, namely, Mst. Tajwar Sultan and the defendants, both rested content with the position that the surviving plaintiff and the husband of Mst. Channo Bibi, were the legal representatives of the latter. This obviously has no effect on the claim raised by Mst. Maqbool Jan herself. There was actually no enquiry held by the Court on that occasion as to whether there was any other surviving legal representative of Mst. Channo Bibi or not. What happened was that two persons were named as the legal representative and they were not objected to. It seems to have occurred to the defendants later that the two consanguine sisters of Mst. Channo Bibi, who were alive, were also among her legal representatives.
19. Mr. Mahmud A.I then tried to maintain that, in any event, Mst. Maqbool Jan's application had been made a year and six months after the death of Mst. Channo Bibi and was, therefore, time-barred.
20. This objection, if it has any merit, should be raised in the trial Court. It has not so far been taken by any party in the Courts below. Mst. Maqbool Jan or her legal representatives who are on the record, may have a defence to make to that contention. That defence cannot be investigated by this Court.
21. The upshot of the above discussion is that the order passed by the High Court was erroneous and must be set aside. The appeal is allowed and the impugned order of the High Court quashed. We direct that the trial Court may now decide the question whether Mst. Maqbool Jan or her legal representatives now on record, are entitled to be impleaded as legal representa--tives of the deceased, Mst. Channo Bibi, under Order XXII, rule 5 of the Code of Civil Procedure. Of course the respondents would be at liberty to raise any objections that may be open to them, to the grant of the prayer of Mst. Maqbool Jan's legal representatives. Costs in this Court will be costs in the cause.