' This is an application under Order I, rule 10(2), C. P. C. By one Ghulam Ahmad Khan seeking to be joined as a defendant in the suit.
2. The dispute in this suit relates to the inheritance of the estate of late Muhtarma Fatima Jinnah, the sister of the founder of Pakistan Quaide-Azam Mohammad Ali Jinnah. The plaintiff is the first cousin (uncle's son) of the deceased, whereas all the defendants except the fifth and sixth, defendants are the agnates of the deceased entitled to a share in the estate. The fifth defendant Mst. Shirin Bai is the only surviving sister of the deceased. The sixth defendant was joined subsequent to the filing of suit by order dated 20-3-1974.
3. The suit is for administration, account, payment of debts and liabilities and for partition of the estate of the deceased among the legal heirs.
4. Before this suit Mst. Shirin Bai had filed on 6-2-1968, an application under section 370 of the Succession Act, 1925 in this Court for grant of a succession certificate in respect of the debts and securities standing in the name of the deceased and succeeded in obtaining an order granting the certificate. It would be relevant to refer to the order in those proceedings which happens to have been reported as Shirin Bai v. Muhammad All and others (1).
5. The suit has reached an advanced stage the evidence of the plaintiff having concluded and the evidence of defendant Mst. Shirin Bai partly recorded. At this stage the applicant Ghulam Muhammad has chosen to
(1) PLD 1970 Kar. 450 ' intervene and has sought his joinder on the sole ground that he being a beneficiary under the alleged last will by the deceased, he had an interest in the estate of the deceased.
6. It may be stated that the grant of succession certificate to Mst, Shirin Bai was resisted, inter alia, on an allegation that the deceased had left a valid will. This fact was sought to be proved on the basis of two documents purporting to be drafts of the will and a document containing some notes in the handwriting of the deceased in respect of certain institutions and persons including the present applicant against whose name a sum of Rs, 5,000 was shown. After thorough examination and assessm ent of the evidence, Mr. Justice Abdul Kadir Sheikh, J. (presently my Lord the Chief Justice) came to a finding that the deceased made no Will and the documents relied upon did rot constitute a valid Will. It is further admitted by the applicant that he was examined as a witness in those proceedings.
7. This application has not been opposed on behalf of the plaintiff or any other defendants, except by the fifth defendant Mst. Shireen Bai, on whose behalf, the application was resisted vehemently.
8. Mr. Saeeduz Zaman, learned counsel appearing for the intervener contended that having regard to the nature of the suit, the applicant is a necessary party and must therefore be joined. He submitted that the deceased left a valid Will and the applicant claims to be a legatee as an amount of Rs, 5,000 has been shown in the Will as a legacy in favour of the applicant. Relying on Mehdi Hussain v. Shadoo Bibi and others (1) he contended that in a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of the Court which means that the Court will assume the function of administrator, it will realise the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it. Accordingly, he argued that the applicant has an interest in the suit and in fact having a share in the estate of the deceased on the basis of the will, his presence in the suit is absolutely essential. Thus, he contended that the applicant was a necessary party and no effective decree can be passed in his absence. In elucidating the nature of an administration suit learned counsel cited Yousuf Abbas and others v.
Ismat Mustafa and others (2), and Mahboob Alam v. Razia Begum and others (3). He next relied on Razia Begum v. Iqbal Begum and others (4) in which the High Court held that an heir even though he may have an infinitesimal share in the property is interested in the Estate of the deceased and cannot be held to be an unnecessary or improperly joined party in a suit.
9. Mr. Liaquat Merchant, learned counsel for the plaintiff stated that lie does not support the application but does not oppose the same either. Stating the position of the plaintiff he submitted that if the deceased really left a will, the plaintiff would like to give effect to the wishes of the deceased. He further lent support to the contention of the intervener's counsel and submitted that a party whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit has been termed as a proper party. In the submission of the learned counsel the expression questions involved in the suit" occurring in Order I, rule 10 (2), C. P. C. Are not confined to decision on questions which arise between the parties to the Suit
(1) PLD 1962 SC 291 (2) PLD 1968 Kar. 480
(3) PLD 1949 Lah. 263 (4) PLD 1957 Lah. 1040 ' but include the final adjudication of the questions as between not only parties to the suit, but also relating to the third parties interested in the dispute. He next submitted that the paramount consideration for impleading proper parties was the avoidance of the multiplicity of the proceedings. For these propositions learned counsel relied upon Abdul Wahab v. Karachi Municipal Corporation (1) and Jamilur Rehman v. Mohammad Asghar and others (2). Thus the learned counsel contended that the applicant was a proper party.
10. Mr. Aziz Munshi, counsel for defendants 1 to 4 also raised no objection to the application,
11. Mr. Ibadat Yar Khan, learned counsel for the fifth defendant, on the other hand contended that the application was collusive and was made to prolong and delay the decision or the suit. He laid great emphasis on the provisions of Order I, rule 10(2), C. P. C. And submitted that expression "all questions involved in the suit" does not contemplate the introduction of a new claim but relates to such questions as arise between the parties to the suit. Relying on National Bank of Pakistan v.
Muzammal Husain (3), Mst. Bandu and another v. Sada Ram (4), learned counsel contended that the addition of a new party has to be ordered consistently with the scope and the character of the suit and it is not permissible to alter the scope of the dispute by bringing an entirely new claim alien to the subject-matter of the pending litigation. He further submitted that Mohtarma Fatima Jinnah passed away on 9-7-1967 and soon thereafter the question of an alleged Will left by her was raised in the proceedings for the grant of succession certificate. Which terminated in March 1970 The present suit was filed on 29-10-1970. Accordingly, the learned counsel urged that the applicant seeks to introduce a claim which is hopelessly barred by limitation and in any case suffers from colossal laches. Learned counsel further contended that the dispute in this case in essence is a dispute over inheritance to the Estate of the deceased limited to her heirs, and the applicant is not an admitted legatee. It was open to the applicant, counsel contends, to have recourse to appropriate proceedings for proving the will or to obtain letters of administration or to file any other action deemed proper. But to permit the applicant to join the present proceedings and to take up issues with the existing parties for proving the will as a legatee, would have the effect of opening a gate for endless prolongation of the proceedings. In this connection, learned counsel pointed out, that there were some twenty persons shown as legatees in the alleged will and except for the applicant none others have so far come forward to seek their joinder in this suit.
12. It is well settled that the Court has a discretion in the matter of joinder of parties who are not necessary parties to the suit. A necessary party is one in whose absence no effective decree can be passed. Whereas proper party is one whose presence before the Court is deemed necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In order to decide whethe a particular party is a necessary party to the suit it is essential to determine the character and the nature of the suit. Thus the first question to conside is what exactly is the scope of an administration suit.
13. The estate of a deceased Mohammadan is to be applied successively in payment of (i) his funeral expenses and death bed charges; (ii) expenses
(1) PLD 1956 Kar. 391 (2) PLD 1968 Lab. 1076
(3) PLD 1965 Kar. 633 (4) AIR 1960 3& K 67 ' to obtain probate, letters of administration or succession certificate; (iii) wages due for service rendered to the deceased within three months next preceding his death by any labourer, artisan, or domestic servant; (iv) other debts of the deceased according to their respective priorities (if any) ; and (v) legacies not exceeding 1/3rd of what remains after all the above payments have been made. The residue is to be distributed among the heirs of the deceased according to the law of the sect to which he belonged at the time of his death. In Mehboob Alam v. Razia Begum and others, late Justice Kayani at page 270 observed :- "It thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the Estate notwithstanding that it vests in the heirs at the time of the death of the propositus and as the distribution of the residue forms part of the administration of an Estate it clearly falls within the province of an administration suit."
14. Their Lordships of the Supreme Court while explaining the scope of an administration suit in Mehdi Hussain Shah v. Shadoo Bibi and others (1) made the following observation :- "In the absence of any specific provision in a procedural law the question as to the matters to be determined and the parties to be impleaded in a suit depends on the relief that has to be granted in that suit. With respect to an administration suit no such specific provisions exist though the competency of such a suit is recognized in Order XX of the Civil Procedure Code and in the form of plaints and decrees contained in appendices to that Code. In a suit for administration the relief to be granted is that the Estate of the deceased is to bo administered under the decree of Court. This means that the Court will assume the function of an administrator. It will realise the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it."
' Order XX, rule 13 provides as under :- "13. Decree in administration suit.-(1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and enquiries to be taken and made, and giving such other directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased person if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the admi nistration suit is pending with respect to the estates of persons adjudged or declared insolvent ; and all persons who in any such case would be entited to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code."
(1) PLD 1962 SC 291 A perusal of this Rule shows that the object for passing of a preliminary decree is to enable the Court to first decide the preliminary question whether to grant the relief for taking over the administration of the Estate of a deceased person and to order further enquiries and accounts for the purpose of determining the debts and legacies and other dues payable in order of priority out of the Estate ; and finally for the distribution of the residue among the heirs. That this is the relief to be granted appears also from Form No, 17 in Appendix 'D' Schedule (1) to the Civil Procedure Code wherein is stated the form of the preliminary decree which is to be granted in such a suit. This Form deals with such a suit by a creditor, legate and next of-kin separately so far as the first part of the decree is concerned. In the case of a suit by the legatee the first part of the decree has to order that an account be taken of the legacies given by the testator's will, whereas in the case of a suit by next-of-kin such order is to be made for an enquiry and account of what or what share if any the plaintiff is entitled to as next-of-kin of the interests. But in all type of such cases, after the first paragraph the Form prescribes, "decree will where necessary, order, in such a suit enquiry and accounts for legatees, heir-at-law and next-of-kin and creditors of the Estate".
15. It will thus be seen that the claims of creditors and legatees, specifically momentary legatees can very well be put in after the prelimina decree even though such creditors or legatees are not parties to the suit. This is consistent with the very object of an administration suit. As observe by their Lordships of the Supreme Court, the Court assumes the function o an administrator, inter alia, for discharge of the debts and legacies. There is no doubt that a creditor or a legatee himself can maintain such a suit but his interest being limited to receive a contribution to the extent of his debt or legacy or ratably, it cannot be said that even in a suit filed by next-of-kin all the creditors and legatees would be necessary parties. The very fact that their claims can be investigated and determined subsequent to the preliminary decree conclusively shows that they are not necessary parties to such a suit.
16. For the foregoing reasons this application fails and is dismissed as such.