' C. M. 1752/C-75 was submitted on 26-4-1975 in the appeal by the respondents through their counsel that since Muhammad Din, one of the appellants, died in 1967, whose mutation of inheritance was also effected in favour of his heirs on 19-8-1967 and whose legal heirs were not brought on record within the statutory period of ninety days, and the interest of the appellants as well as cause of action in the suit being joint the appeal had abated against the respondents. The learned counsel for Fazal Din appellant sought adjournment of the case in order to enable himself to file reply to the application under the instructions of his client. However, reply to the application was not filed and the matter was otherwise argued by him. The main contention raised by him was that since the share of Fazal Din the property in question was distinct and divisible, therefore, appeal would not abate in tow and would continue, so far as surviving appellant is concerned.
2. The record shows that both the appellants filed a suit for declaration that the property in question belonged to them being its owners and the respondents had nothing to do with that. They based their claim on a will dated 17-1-1946 (Exh. P. 4), executed by Nabi Bakhsh, deceased, owner of the property; whereby their mother Mst. Jewan was made the owner of the property during her lifetime, but was not otherwise entitled to sell the same and after her death the plaintiffs- appellants were to inherit the property in equal shares. According to the appellants, Nabi Bakhsh, deceased, thereafter gifted away whole property in their favour orally in 1954 and also handed over the possession thereof to them. In support of that contention they relied' upon an application dated 9-12-1954 (Exh. P. 1) addressed to Tehsildar Jaranwala, acknowledging the factum of gift having been made in favour of the appellants by him and requesting that necessary mutation in this behalf may be effected in their favour in the relevant revenue record. Their suit was dismissed by the learned trial Court and the judgment and decree passed in this behalf was affirmed in first appeal by the learned lower appellate Court on 3-12-1962. So far as the execution of will was concerned, it was found that thumb-impression alleged to have been affixed by Nabi Bakhsh thereon was blurred. It has also been observed by the learned lower appellate Court that finding with regard to will having not been executed was not questioned by the appellants in their first appeal. The matter with regard to oral gift was, however, argued. Its scribe (P. W. 1) Faiz Ali was unable to identify the executant while Abdul 9honi P. Wo 3 knew nothing abont the rows of gift. Tim only material evidence which was brought on record by the appellants was that they had been in possession of the suit land for a long time. The suit land was, however, found to be in joint possession.
3. As mentioned above, one of the appellants, Muhammad Din, died in 1967 and his legal heirs were never brought on record within the stipulated period. The question which needs consideration is as to whether the appeal has abated qua the deceased appellant or in toto. It is evident, as discussed above, that the plaintiffs-appellants based their claim on a joint transaction by way of gift in their favour, which was not found to have been effected in their favour by both the Courts below. It is a single transaction which is alleged to have been made in their favour being the joint beneficiaries.
It is possible to hold in the present proceedings that gift by the said transaction was made in favour of the surviving appellant while contrary to that it has already been found that it was not made in favour of the deceased appellant. If it is found to have been effected, in the present proceedings, in favour of the surviving appellant, there will be two inconsistent decrees-one holding that there was no gift in favour of the deceased appellant and the other holding that there was gift in favour of the surviving appellant.
4. It has been held in Wall etc. v. Manak Alt etc. (1) that where it becomes impcssible to proceed further on account of death of a party, then suit or appeal, as the case may be, would stand totally abated. In that case dispute was with regard to specific performance of an agreement to sell the property. By that agreement Murad, who was pro forma respondent in the appeal before the Supreme Court, agreed to sell one square of land to Manak and Lal, the contesting respondents.
The sale deed was to be registered according to the agreement, on 28.84953 while the possession of the land sold was already with Manak and Lal as tenants. On 29-8-53 Manak and Lal filed suit, out of which the appeal decided by the Supreme Court arose. They alleged that Murad evaded performance of his contract in spite of notice and had sold one-half of the land to Wali and others.
The case was taken up by the High Court in appeal filed by the plaintiffs against the judgment and decree passed against them by the lower appellate Court. Their appeal was accepted and the gift suit was decreed. In February 1957, the case was certified by the High Court as fit for appeal to the Supreme Court and appeal was in consequence thereof filed in the Supreme Court. However, Lal respondent in the appeal before the Supreme Court died in 1958 and his legal representatives were not brought on record. It was observed that so far as Lal was concerned appeal against him had abated, but total abatement of the appeal was, however, contested by the appellants before the Supreme Court. It was argued that though there was only one contract between the vendees and the vendor and the share of the vandees was not specified the agreement for sale should be interpreted as consisting of two agreements-one in favour of each vendee. This contention was repelled on the ground that even though the share of the vendees was spedified, as long as contract was one it could not be split up under section 17 of the Specific Relief Act, as according to that provision there could be no partial specific performance of the contract. It was further held that the case before the Supreme Court was of the kind where the law contemplated only one decision of a dispute.
5. ' A discussed above, there was only one joint transaction in favour of (1) PLD 1965 SC 651 the appellants by way of alleged gift in the present case. In view of the principle laid down by the Supreme Court in the case cited above, it has to be found whether there was gift or not, It is not possible, in the circumstances of the case, to find that gift was effected in favour of one of the beneficiaries, namely the surviving appellant, or the deceased. The factum of gift being a single transaction has to be determined as such. The law does not contemplate its determination otherwise! That it was made in favour of one person and not in favour of the other. Similar view has been taken in Allah Dad v. Nawab. It was held that where the interests of the defendants in the suit or those of the plaintiffs are joint and indivisible then necessarily, if the appeal is accepted, two inconsistent decrees in the same case with respect to the same subject-matter are likely to come into existence. It was held that for this reason the appeal in such cases much abate as a whole.
6. The learned counsel for the appellant has tried to argue with reference to Allah Rakha v. Nawab and others (2) that in a case where the shares of a party are ascertainable appeal or suit, as the case may be, would not stand abated. In that case there were two gift deeds in relation to different properties in favour of two different persons. Their shares which existed in the property were already distinct and ascertained. The facts of that case are quite different from the facts of the present case.
7. In view of the above discussion it is held that the appeal against the respondents stands abated totally.
(1) PLD 1960 Lah. 277 (2) PLD 1967 Lain 613