MUHAMMAD AFZAL ZULLAH, J.--The only question raised in this Letters Patent Appeal is that of abatement. The facts relevant to this question are that on the death of one Saudagri, his two widows Daulan and Muradan purported to inherit his property. Daulan re-married; whereupon the property was mutated in the name of the remaining widow, namely, Muradan. She died in 1951. As a result of various orders passed by the revenue authorities Mst. Muradan having been treated as limited owner. 7/8th share of the property left by Saudagri was mutated in favour of the heirs of Saudagri (the plaintiffs appellants herein) while 1/8th share was mutated in favour of the defendants/respondents who claimed themseleves to be the brother and sisters of Mst. Muradan.
The appellants filed a suit asserting that the defendants were not related to Mst. Muradan and that they on account of relationship were entitled to the remaining I/8th share also. Muhammad respondent, one of the defendants only filed a written statement asserting therein that the other defendants, who were alleged to be the sisters of Mst. Muradan had transferred the land coming to their share (as a result of the aforementioned mutations) to him and that they were no more interested in the litigation. He also asserted that other defendants were not even proper parties. A replication was obtained from the appellants wherein they did not dispute the fact asserted by Muhammad with regard to the transfer of the land by the other defendants to him. Rather the plea of ignorance was taken in that behalf. The defendants other than Muhammad, did not contest the suit nor did they put in appearance. They were also proceeded ex parte. The learned trial Court held that the defendants were not related to Mst. Muradan as claimed by them. The plaintiffs' suit was decreed with costs on 14-11-1956. The defendants filed an appeal from the decree. The appeal was allowed. Case was remanded on 15-10-1957 for fresh decision on trial of two issues only which were framed in the remand order. During the retrial major attempt was made from the defendants' side, to show that Mot. Sahib Bibi deceased was the sister of Mst. Muradan. But once again they failed and the suit was decreed on l0-12-1959. The defendants including the heirs of Mst. Sahib Bibi filed appeal and took up a plea that Mst. Sahib Bibi had died on 16-5-1958, i.e., during the pendency of the suit after remand; and because her legal representatives were not brought on record by the trial Court, therefore, the suit had abated qua her and because the interest of all the defendants was indivisible, therefore, the suit regarding I/8th share in Saudagri's land against all other defendants also was liable to be dismissed. Their plea was accepted and the first appeal was allowed on 28-6-1960. The present appellants filed Regular Second Appeal No. 303 of 1960 in this Court which was dismissed by a learned Single Judge on 4-2-1966 on the same basis as held by the learned lower appellate Court (affirming the judgment and decree of the learned lower appellate Court), therefore, this Letters Patent Appeal.
2. The legal proposition relied upon in the impugned judgment, namely, that abatement "in toto" of a suit is a misnomer and that the suit can be dismissed only if on account of the absence of the deceased party, it becomes imperfectly constituted, has not been disputed. Learned counsel for the appellants has, however, contended that Mst. Sahib Bibi deceased having surrendered her alleged share in the property to Muhammad respondent, it was not necessary to implead her legal representatives; that in the circumstances of the case the first appellate Court should not have refused permission to formally implead the legal representatives at that stage; and that in any case the absence of the legal representatives of Mst. Sahib Bibi would not render the entire suit as imperfectly constituted.
3. With respect it has to be noticed that the first question although having been dealt with at length in the judgment of the first appellate Court and having been noticed by the learned Single Judge in that context has not been resolved in the impugned judgment.
4. Muhammad respondent alone filed the written statement. Mst. Sahib Bibi had not contested the suit and the proceedings were ex parte against her. This is not all. Muhammad in the very first paragraph of the written statement asserted that the other defendants including Mst. Sahib Bibi had transferred the land in dispute to him, therefore, they were not necessary parties. In the concluding paragraph of the written-statement also he pointedly referred to the same subject by asserting his claim upon the entire share of land in dispute. He used the expression In their replication the appellants-plaintiffs did not deny the factum of transaction of alienation by Mst. Sahib Bibi in favour of Muhammad. Instead they showed ignorance in this behalf and while visualizing this transfer in para. 1 of the replication asserted that not--withstanding the same the other defendants were necessary parties. It appears that on account of the attitude of the present appellants and factual assertion regarding transfer in favour of Muhammad, no issue was insisted upon with regard to the factum of transfer but while Muhammad insisted that other defendants including Mst. Sahib Bibi were not proper parties, the plaintiffs then thought otherwise. That is why the only issue on this question was "whether the defendants No. 2 (Mst. Sahib Bibi) to 7 are not proper party? (O. D.)" The learned trial Court in the first round decided this issue against Muhammad. The learned first appellate Court in the first round set aside the judgment and decree passed by the trial Court and remanded the case for trial of only two issues. It is significant to note that all other issues including the aforementioned one were not repeated in the remand order and the trial Court was required to decide the suit afresh on the basis of the issues reconstituted by the first appellate Court as follows :-- "(1) Whether Muhammad defendant No. 1 is not a brother and whether Mst. Sahib Bibi and other defendants 2 to 7 are not the sisters of Mst. Muradan deceased?
(2) What are the shares to which the parties are entitled in estate of Saudagri under the Shariat Application Act, 1948?"
The trial Court in the second round decided the aforementioned two issues in favour of the appellants-plaintiffs. There was no fresh decision on the controversy involved in the present appeal. An important circum--stance in this behalf cannot be ignored. As already noted, Muhammad had asserted the transfer by other defendants in his favour. This assertion was not disputed on facts either by the other defendants or by the appellants plaintiffs. On the contrary, Muhammad had placed on record two original registered deeds showing transfer. One of them related to the transfer by Mst. Sahib Bibi. It is apparent from the endorsement by the Registrar that she herself appeared before him at the time of registration. This registered deed was noticed by the first appellate Court in the remand order passed in the first round. It was observed as follows "I have before me a sale deed purporting to have been executed by Mst. Sahib Bibi appellant in favour of her brother Muhammad appellant in respect of her share in the land in dispute."
All the facts and circumstances point towards one irresistible conclusion that during the hearing of that appeal and thereafter during the re-trial proceedings, all the parties gave up the contest, if there was any, with regard to the position of Mst. Sahib Bibi and the defendants other than Muhammad in the suit. None of them insisted upon the framing or re--framing of an issue in that behalf. We asked the learned counsel for the respondents to state his clients' position on this vital aspect of the case. His answer in this behalf was that "he did not find any written plea or conduct showing that the sisters (defendants other than Muhammad) did not give up (surrender) their rights to Muhammad". Apart from this statement on facts the learned counsel did not give up his clients' plea on the question of law regarding abatement. The learned trial Court in the second round did not touch this point nor it rendered any decision that there was no transfer of other defendants' share to Muhammad or that they were necessary or proper parties. The earlier judgment of the trial Court on this question having been set aside in its entirety by the lower appellate Court it would not be correct to say that at the time of the decision in the second round by the trial Court, there was any finding against the present appellants with regard to the other defendants including Mst. Sahib Bibi being either a necessary or a proper party. The learned lower appellate Court was wrong in assuming that the decision of the trial Court in the first round, which admittedly was set aside and did not enure for the benefit of any of the parties, held the field and because Mst. Sahib Bibi was treated as necessary party therein, therefore, it was essential to bring on record her legal representatives.
S. As analysed above, the factual position being otherwise, Mst. Sahib Bibi having admittedly transferred her share to Muhammad and thus the entire estate being represented through the contest raised by Muhammad, it was not at all necessary to either implead Mst. Sahib Bibi or her legal representatives on her death. The assumption that the. Entire estate was represented gets further support from the written reply submitted by Muhammad to the application of the appellants at the first appellate stage in the second round; wherein they explained, with the help of the afore--discussed circumstances, their failure to implead the legal representatives of Mst. Sahib Bibi and requested for correction of the proceedings if at all there was any error. While opposing the application (it appears only in form) it was asserted from the respondents' side that Mst. Sahib Bibi was represented during all the proceedings "through the lawyer and Muhammad defendant her brother". (See page 34 of the lower appellate Court file) And it would not be out of place to notice another circumstance here, namely, that daring the proceedings subsequent to the exparte order whenever Mst. Sahib Bibi or for that matter the other defendants were joined with Muhammad so as to complete certain formalities, they were all represented by one counsel.
Admittedly there was no clash between the brother and the sisters inter se. They never refused to support his plea on the question of transfer.
6. Before passing on to the consideration of the next question it is necessary to correct the misreading by the learned Additional District Judge (lower appellate Court) on a very vital question when he in para 7 of the impugned judgment assumed that there was no evidence on record -with regard to the aforediscussed transfer by defendants Nos. 2 to 7 in favour of Muhammad defendant No. 1. As already noted the learned lower appellate Court's remand order during first round, bad itself relied on the registered deed of transfer and none of the parties had objected to it. Not only this there was unequivocal admission of Muhammad in this behalf in his written statement which was admittedly verified, and undoubtedly the appellants-plaintiffs had not denied the factum of transfer asserted in the written statement and had expressed only their ignorance in the replication. The latter position was also corrected in the subsequent proceedings when the conduct of all concerned including the appellants shows that the transfer in favour of Muhammad was admitted and it was also formally admitted before the learned Additional District Judge himself, in writing, in a formal application submitted in this behalf. If the learned Judge would not have misread the aforediscussed material the results might have been totally different. Another misreading and misunderstanding has already been pointed out, namely, that the decision on issue No 1 relating to proper parties was not repeated in the second round and the decision in the firs round having been set aside there was nothing in the then existing field which could be used against the appellant-plaintiffs.
7. In the light of the above discussion we do not agree with learned lower appellate Court that Mst.
Sahib Bibi was a necessary party and/o that the estate was not duly represented in the contest raised by Muhammad who had on account of transfer become the owner of her alleged share as well. The learned Single Judge, with respect it is pointed out, did no attach due importance to the above-discussed aspects of the matter any as he thought, discussed only the legal aspect which he considered as "th~ main challenge to the judgment and decree of the lower appellate Court"
Although it appears that the learned Single Judge considered the above a; an insignificant aspect not worthy of discussion, with respect, in our vieV it was another, if not more important, at least equally, main aspect of the matter. In view of our findings in this behalf, the impugned Judgments and decrees are liable to be set aside.
8. There is yet another aspect in this case. As pointed out earlier the appellants had made a formal application before the learned lower appellate Court asserting that although on account of the facts stated, Mst. Sahib Bib was not a necessary party in the case, in order to complete a formality presumably by way of abundant caution, the Court was requested to treat her heirs as her legal representatives and to continue the proceedings by virtue and use of section 5 of the Limitation Act for purpose of condonation of the delay in respect of the so-called abatement, if any. The learned Judge fog the same reasons which have been analysed and discussed above dismissed this application. It is noted in para. 6 of the judgment that the legal representatives of Mst. Sahib Bibi were already on record as appellants Nos. 7 to 10 therein and that no further notice to any other party was necessary. Notwithstanding the same and notwithstanding the aforenoted established fact that the interest of Mst. Sahib Bibi, in any case, throughout stood defended by Muhammad, her brother, who had on submission o1 personal affidavit got the case remanded for adducing additional evidence regarding relationship between Mst. Sahib Bibi and Mst. Muradan and did produce this evidence, the learned Additional District Judge misinterpreted the conduct of the appellants by observing that on a.-count of the, filing o1 that application they (present appellants) had admitted that Mst. Sahib Bibi was a necessary party. The learned Additional District Judge, it appears either did not read the application or obviously misread it. It is specifically asserted therein that Mst. Sahib Bibi was not a necessary party and that the application was being presented by way of abundant caution in order to avoid any further dispute. In the facts and circumstances of the case as now discussed, the learned Additional District Judge should in our view have allowed the application. One necessary corollary of our aforeexpressed view would be that in case we would have held that Mst. Sahib Bibi was a necessary party and that it was necessary to bring on record her legal representatives, we would have, by setting aside the decision by the learned Additional District Judge in this behalf, allowed the application. But on account of our decision on the first question raised in this appeal we do not consider it necessary to do so.
9. The third and last controversy discussed during the arguments before us relates to the effect of the abatement, if any, of the suit qua the share of Mst. Sahib Bibi. Although in view of our decision on the first two questions, this question would not arise but in view of the likelihood of the same question again being raised before the learned lower appellate Court, we consider it necessary to make one observation in this behalf. The learned Single Judge, with respect, has agreed with the learned lower appellate Court that if one heir of Mst. Muradan is left out of the suit the plaintiff's would "at once lose their locus stand! To claim the share of Mst. Muradan". This observation might have been correct if in the circumstances of the case from the defendant's side it would have been the case that Mst. Muradan left Mst. Sahib Bibi alone as her heir. The position in this case is quite otherwise. She according to the respondents left several sisters and one brother and that after the mutations the alleged sisters transferred their share to the alleged brother. Even if Mst. Sahib Bibi had not made the transfer, it is not necessary that she might have been adjudged as the sole heir of Mst. Muradan. For example if Muhammad alone or together with some other ladies would have been adjudged as the heir of Mst. Muradan, Mst. Sahib Bibi's alleged status was not such so as to exclude Muhammad and others from the alleged so-called inheritance. If other foregoing aspects are ignored, it would depend upon the findings of fact with regard to the relationship which is the subject-matter of dispute between the parties, which would have ultimately determined the effect of the death of Mst. Sahib Bibi and so called absence of her legal representatives from array of parties. Thus the dismissal of the entire suit and consequently the dismissal of the appeal without the judgment on merits of the case on account of death of Mst. Sahib Bibi and absence of her legal representatives, in the circumstance of this case was, in any case, illegal. The rule laid down by Supreme Court in Wali v. Manak Ali (PLD 1965 SC 651), that an "order of dismissal of suit or appeal against the living defendants or respondents (we would avoid use of the expression `total abatement') will be justified only if it becomes impossible to proceed with the suit or appeal on account of its abatement as against the deceased party. Law favours adjudication on merits for a failure to so adjudicate means a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it," applies with full force in this case and as discussed we have not found any insuperable practical obstacle preventing adjudication on merits by the learned low-.r appellate Court. We accordingly set aside the impugned judgments and decrees and remand the case to the learned lower Appellate Court (the learned District Judge) for re-hearing and fresh decision of the first appeal on merits. There shall be no order as to costs.