' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court dated 7-10-1997, whereby accepting the appeal filed by Muhammad Shaukat, respondent No,1, the judgment and decree passed by the Additional District Judge were set aside and that of trial Court were restored.
2. The brief facts of the case are that a suit was filed by the appellant, herein, in the Court of Sub- Judge, Bagh, seeking a declaration that the registered Will executed by Sardar Fazal Khan, his father, on 17-1-1962 in favour of Muhammad Shaukat Khan, respondent, to the extent of 1/4th share out of the land comprising survey numbers mentioned in the plaint alongwith houses constructed thereon was a fake and forged document. A cross suit by Muhammad Shaukat, respondent herein, seeking the possession to the extent of 1/4th share of the suit land and houses which were bequeathed in his favour by his grandfather, Sardar Muhammad Fazal Khan. Both the suits were consolidated and were disposed of by the single judgment by the Sub-Judge. The suit filed by Sardar Muhammad Nazir Khan, appellant herein, was dismissed while that of Muhammad Shaukat, respondent herein, was decreed. On appeal to the Additional District Judge by the appellant, herein the judgment and decree of the trial Court were set aside and the suit filed by Sardar Muhammad Nazir Khan, appellant, was decreed while the suit for possession filed by Muhammad Shaukat, respondent, was dismissed holding that the Will deed executed in his favour was not proved.
Muhammad Shaukat filed an appeal to the High Court which was accepted and the decree for possession passed in his favour on the basis of the said Will deed by the trial Court was restored. It is against the aforesaid judgment and decree for possession passed in favour of Muhammad Shaukat, respondent, that the present appeal has been preferred.
3. We have heard the arguments and gone through the file. Before dealing with the merits of the case, two preliminary objections pertaining to the impleadment of legal representatives of Mst.
Chohara Bi, deceased, and Ali Asghar, respondents, need to be disposed of. During the pendency of the appeal in this Court, an application was made on behalf of the appellant that Mst. Chohara Bi had died when the appeal filed by Muhammad Shaukat, respondent, was pending in the High Court but her legal representatives were not brought on the record by him; it was further stated that in the copies of the judgment and decree issued to the appellant, the name of Mst. Chohara Bi instead of her legal representatives was recorded. Thus, her name has also crept in the memorandum of appeal; in the second application, it was prayed that Ali Asghar, who was arrayed as respondent in the High Court, could not be impleaded as party in the appeal in this Court due to typing mistake. The objections were filed to this application by the respondents.
4. The arguments were heard on the questions of impleadment of the legal representatives of Mst.
Chohara Bi, and Ali Asghar on 15-5-1998 and vide our order dated 18-5-1998, the impleadment of the legal representatives of Mst. Chohara Bi, and Ali Asghar was permitted so as to correct the record of this Court with the observations that the effect of non-impleadment of the legal representatives of Mst. Chohara Bi in the High Court by respondent No,1 and failure to implead Ali Asghar in this Court by the appellant, herein, would be considered at the time of arguments on merits of the case.
5. It has been contended by Syed Mumtaz Hussain Naqvi, Advocate, the learned counsel for the appellant, that Mst. Chohara Bi had died when the appeal filed by Muhammad Shaukat, respondent, was pending in the High Court as is evident from the applications made by Muhammad Nazir, appellant, herein. However, the High Court did not pass any order with regard to the effect of the non-impleadment of her legal representatives in time. Consequently, her name remained on the record and, thus, she was impleaded as respondent due to the said mistake. It has been contended that the judgment and decree passed by the Additional District Judge in favour of the appellant was joint and indivisible and, as such, the effect of non-impleadment of the legal representatives of Mst. Chohara Bi by Muhammad Shaukat, respondent, in the High Court would result in total abatement of his appeal and the judgment and decree passed in favour of the appellant, herein, by the Additional District Judge would remain intact.
6. In reply, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for respondent No,1, has argued that as ex parte proceedings were taken against Mst. Chohara Bi in the High Court, the factum of non-impleadment of her legal representatives in the High Court would not affect the appeal filed by the respondent. In alternative, he has argued that the appeal filed by Muhammad Shaukat, respondent, in the High Court would abate only to the extent of legal share of Mst.
Chohara Bi and not in toto as has been contended by the learned counsel for the appellant. The learned counsel has submitted the following authorities in support of his contentions:- ' In case reported as Mst. Maqbool Begum v. Gullan (PLD 1982 SC 46), it was observed that in case of death of a party to the proceedings who is Muslim, the suit or appeal would abate only to the extent of his share and not as a whole, because under Muslim law, the shares of the heirs are ascertainable.
' In case reported as Muhammad Yasin v. Mst. Hassan Jan (PLD 1982 SC (AJ&K) 85), it has been observed that as the defendant was in exclusive possession of the property in dispute alongwith one another, the suit must abate in toto and not only to the extent of the deceased defendant.
' In case reported as Maqbool Hussain alias Maqbool Ahmad v. Jamal Din (1992 CLC 178), it has been observed that as Rahim Bukhsh, one of the parties to the proceedings, had sold his share in the suit land in his lifetime, he was not more necessary party and, thus, the nonimpleadment of his legal representatives would not result in the abatement of the suit.
' In case reported as Wali v. Manak Ali (PLD 1965 SC 651), it was held that under Order XLI, rule 22, C.P.C., the suit or appeal would abate only to the extent of the deceased defendant or respondent and not in toto. An order of dismissal of suit or appeal against the living defendant or respondent would be justified only if it becomes impossible to proceed with the suit or appeal on account of its abatement against a necessary party. It was further observed that the theory that if the suit or appeal is not held to have been abated in toto, it may result in contradictory decrees was not tenable in view of the relevant provisions contained in the C.P.C., because the law favours adjudication of disputes on merits rather than on technical grounds.
' Identical view was expressed in cases reported as Fazal Dad v. Nek Alam (PLD 1967 Lah. 430) and Allah Rakha v. Nawab (PLD 1967 Lah. 613).
' In an unreported appeal entitled Faqir Ali v. Mir Muhammad (Civil Appeal No,44 of 1987, decided on 3-7-1989), it was observed that a co-sharer whose legal representatives were not impleaded within the prescribed period of limitation would not result in the total abatement of a suit or an appeal if his share is ascertainable from the record. Thus, it was held that the suit would not abate in toto but only to the extent of the deceased co-sharer.
6. We have given due consideration to the matter. The contention of the learned counsel for respondent No,1 that as ex parte proceedings were taken against Mst. Chohara Bi in the High Court, the non-impleadment of her legal representatives by Muhammad Shaukat, respondent, was not fatal to the appeal filed by him is not tenable, because the authority reported as Khushi Muhammad v. Mst. Aziz Bibi (PLD 1988 SC 259), relied upon by the learned counsel, has been given in view of the promulgation of the Law Reforms Ordinance, 1972 which has not been adopted in Azad Kashmir. Therefore, the argument that as Mst. Chohara Bi did not contest the case and ex parte proceedings were taken against her, does not furnish a legal ground for dispensing with the requirement of bringing her legal representatives on the record.
7. The next question arises as to whether the appeal filed by Muhammad Shaukat, respondent, in the High Court would be deemed to have been abated in toto or only to the extent of share of Mst.
Chohara Bi in the disputed land. It may be observed that the shares of Muslim heirs are ascertainable under Muslim Law. Thus, the share of Mst. Chohara Bi is ascertainable and the appeal filed by Muhammad Shaukat, respondent, would abate only to the extent of her share and not in toto as is evident from the authorities cited by the learned counsel for the respondent. We are of the opinion that the abatement of a suit or appeal in case of non-impleadment of a legal representative in toto would only occur if it is not possible to adjudicate upon the disputed share of such a legal representative for one reason or the other. The argument that if in case of non- impleadment of the legal representatives of a deceased party, the appeal or suit is not held to have abated in toto, contradictory decrees are likely to come into existence is not tenable, because there is no provision in the Code of Civil Procedure to the effect that in case of non-impleadment of the legal representatives, the suit or appeal should be declared to have been abated in toto so as to avoid the contradictory judgments and decrees.It may be observed that contradictory judgments and decrees do come into existence in many eventualities, as has been held in cases reported as Wali v. Manak Ali (PLD 1965 SC 651), Fazal Dad v. Nek Alam (PLD 1957 Lah. 430) and Allah Rakha v. Nawab (PLD 1967 Lah. 613), referred to above. Thus, the appeal filed by Muhammad Shaukat in the High Court could be deemed to have abated only to the extent of 1/4th share of Mst.
Chohara Bi and not in toto.
8. The next point which needs resolution is as to whether the nonimpleadment of Ali Asghar, who was one of the respondents in this Court, is fatal to the present appeal. It has been contended on behalf of the appellant that his name could not be mentioned in the memorandum of appeal due to typing mistake. In reply, the learned counsel for the respondent, Mr. Ghulam Mustafa Mughal, Advocate, has argued that when the appeal filed by Muhammad Shaukat, respondent, was pending in the High Court, Ali Asghar made an application that he had no grievance if the Will executed in favour of Muhammad Shaukat is upheld and he is given the relief on the basis of the said Will. Thus, the learned counsel has argued that Ali Asghar, did not contest the validity of Will which was executed in favour of Muhammad Shaukat, respondent. Besides, the learned counsel has contended that the appeal filed in this Court by the appellant without impleading Ali Asghar as a party is not properly constituted and must be dismissed on this sole ground. He has argued that Ali Asghar, respondent, could not be impleaded as pro forma respondent after the expiry of the period of limitation prescribed for filing an appeal. He has cited following authorities in support of his contentions:- ' In case reported as Azad Government of the State of Jammu and Kashmir v. Commissioner, Workmen's Compensation, Muzaffarabad (1981 CLC 1143), it has been held that the rule that a party not impleaded in appeal within the period of limitation under rule 20 of Order XLI, C.P.C., does not remain an interested party, is not a rigid rule; if it is established that a party was not impleaded within the period of limitation due to a bona fide mistake or without any fault on the part of party concerned, it can be impleaded as a party in an appeal after the expiry of a period of limitation; because the intention of the Legislature appears to empower the Court to implead a party in an appeal after the period of limitation if valid grounds are established in that regard.
' In case reported as. Said Muhammad v. M. Sardar (PLD 1988 SC 532), the defendant could not be impleaded as party in appeal due to typing mistake as his name was omitted from the copies of the judgment and decree. An application for impleading him in the appeal alongwith an application for condonation of delay was filed in the High Court. The prayer for the impleadment of the concerned party in the appeal was accepted by the Supreme Court on the ground that mistake was bone fide.
' In case reported as Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir (PLD 1985 SC (AJ&K 102), it has been held that a necessary party cannot be impleaded in an appeal after the expiry of period of limitation, especially so when the party seeking the impleadment is found to be guilty of negligence. Thus, the appeal was dismissed as a whole observing that no effective order could be passed in absence of the necessary party.
' In case reported as Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan (PLD 1964 SC 559), the employer, who was a necessary party in the proceedings which had arisen out of an industrial dispute, was allowed to be impleaded by the Supreme Court after the period of limitation subject to all just exceptions. However, subsequently, the appeal was dismissed observing that the employer was a necessary party but he was not impleaded within the period of limitation and no prayer was made for the condonation of delay.
' In case reported as Qazi Mehar Din v. Mst. Murad Begum (PLD 1951 BJ 1), it was observed that a party who has not been impleaded in an appeal within the period of limitation, would not be deemed to be an 'interested' party within the meaning of rule 22 of Order XLI, C.P.C., and, thus, it cannot be impleaded as respondent after the expiry of period of limitation, especially so when the plaintiff-appellant was found to be guilty of extreme negligence. '
9. We have given due consideration to the arguments advanced with regard to the effect of non- impleadment of Ali Asghar in this appeal. There is nothing on the record to substantiate the contention of the learned counsel for the appellant that the non-impleadment of Ali Asghar was due to any typing mistake. It appears that Ali Asghar had made an application in the High Court that he did not want to dispute the Will which was executed by Sardar Muhammad Fazal in favour of Muhammad Shaukat, respondent. It appears that probably it was for this reason that he was initially not impleaded as a pro forma-respondent. It may be observed that this Court has wide powers to implead a party even after the period of limitation prescribed for filing an appeal if case of a bona fide mistake is made out. The provisions of Order XLI, rule 20, C.P.C., do not apply to the proceedings before this Court and there is nothing in the Supreme Court Rules to debar this Court from exercising the powers of impleading a party even after the expiry of the period of limitation if it is in the interest of justice. However, in the instant case, Ali Asghar who was a respondent in the High Court had accepted the claim of Muhammad Shaukat, respondent, in writing, thus, his non- impleadment as party would not adversely affect the appeal so far as the same pertains to the appellant and other pro forma-respondents, because after accepting the claim of respondent No,1, he was no more a necessary party in the present appeal. The only effect of his nonimpleadment would be that the judgment and decree passed by the High Court to the extent of his share would remain intact, irrespective of the fate of the present appeal.
10. Coming to the merits of the case, the learned counsel for the appellant, has argued that, the onus of proof of the execution of Will deed dated 17-1-1962 was wrongly placed upon the appellant.
He has argued that even otherwise, the attesting witnesses of the Will have not been examined by the plaintiff-respondent and, thus, the Additional District Judge has rightly held that the Will in question was proved. He has referred to a case reported as Muhammad Zaman Khan v. Sher Fazal Khan (PLD 1984 SC (AJ & K) 138), wherein it was held that the question of burden of proof is material only when the Court finds the evidence to be equally balanced that it cannot come to a definite conclusion, otherwise the onus of proof loses its importance. It was further observed that the scribe of the Will cannot be regarded to be an attesting witness as the person who identifies the executant of a Will before the Registrar; thus, in case of a denial by the executant of a document or by any other person against whom it is to be proved, or if the attesting witnesses deny by execution, it can be proved by other evidence.
11. In reply, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for respondent No,1, has argued that the trial Court and the High Court have rightly come to the conclusion that the Will dated 17-1-1962 has been amply proved by the respondent. He has argued that the Will is not compulsorily registerable; it is not necessary that the same should have been essentially in writing.
Thus, the learned counsel maintained that it is not correct to say that it was necessary for proving the Will in question to examine at least one of its attesting witnesses. The learned counsel has referred to a case reported as Mst. Batool v. Akbar (1986 CLC 372), wherein it has been observed that a Will by a Muslim owner does not require registration under the provisions of Registration Act and, as such, it can be made either verbally or in writing. However, a party may get it registered if so chooses. The learned counsel has argued that the fact that Will in question was not only a registered document but is also supported by the statements of Munshi Javed, who had identified the signatures of Muhammad Hussain, the scribe of the Will, and Sikandar Khan, who had identified Sardar Muhammad Fazal, the executant of the Will, at the time of registration. Thus, the learned counsel has contended that the execution of the Will is proved and there is no evidence on behalf of the appellant, herein, that the same was forged. The learned counsel has argued that the person who alleges that a document is forged, the onus to prove that it was so would be upon him. Thus, the learned counsel has submitted that the onus to prove the forgery was rightly placed upon the appellant, herein.
12. We have given due consideration to the arguments. After going through the record and the statements of Sikandar Khan and Munshi Javed, the two witnesses for the plaintiff-respondent, we have no hesitation in holding that the trial Court and the High Court have rightly come to the conclusion that the Will in dispute stands amply proved. The mere fact that the attesting witnesses of the Will were not examined does not detract from its proof in the circumstances of the case.
Therefore, we repel the contention of the learned counsel for the appellant that the Will in question was a forged document and the trial Court and the High Court have committed an error in holding that the Will stands proved.
' In the light of what has been stated above, we dismiss the appeal. However, we amend the judgment and decree of the trial Court in terms that Muhammad Shaukat, plaintiff-respondent, is entitled to a decree for joint possession to the extent of 1/4th share out of land described in the plaint alongwith the share in houses after excluding the share of Mst. Chohara Bi from the disputed land and houses. In the circumstances of the case, we make no order as to the costs.