1985 PLP 104 (SCMR)

The respondents in their joint written statement admitted that Mst. Jiwan married to Nabi Bakhsh but denied the existence and the validity of the Will and the gift and pleaded that in any case the Will had been revoked by the gift. The land trial Court framed the following issues:- (1) Whether Nabi Bakhsh deceased made any valid gift in favour of the plaintiffs. If so, to what effect? (2) Whether Nabi Bakhsh deceased made any valid Will about the plaint property in favour of the plaintiffs. If so to what effect? (3) If Issue No. l is proved, what is its effect on the Will? (4) Relief. After appraising evidence led by the parties, the learned trial Court answered Issues Nos. 1 and 2 in the negative and held Issue No.3 as redundant on account of Issue No.l having remained unproved. The suit was consequently dismissed by the learned trial Court vide its judgment dated 15-11-1961. The appeal of Petitioner No.l and his brother Muhammad Din was dismissed by the learned District Judge, Lyallpur (now Faisalabad) vide judgment dated 3-12-1962. Where after, they filed Regular Second Appeal (R.S.A. 69/63) before the Lahore High Court. This appeal was admitted to a full hearing and was pending final disposal in the High Court when Muhammad Din died in 1967. However, the heirs of the aforesaid Muhammad Din were not brought on the record. On the other hand, on 26-4-1975, an application (C.M.P.No.1752/C of 1975) was submitted on behalf of the respondents stating that since Muhammad Din (one of the appellants) had died in 1967 and his legal representatives had not been brought on the record so far the appeal had, therefore, abated in toto as it could not proceed in the absence of the legal representatives of the deceased-appellant. The learned Judge of the High Court considered the said applica?tion and came to the conclusion that this was a case where there was only one joint transaction in favour of the appellants by way of the alleged gift and as such the interests of the appellants were indivisible and if the appeal was to be accepted two inconsistent decrees could come into existence. He, therefore, vide his judgment dated 2-11-1976, held that the appeal had abated as a whole. The appeal, was accordingly, dismissed as having totally abated. Hence this petition for leave to appeal. We have heard Kh. Mushtaq Ahmad, in support of this petition, he has referred to the application of Nabi Bakhsh dated 9-12-1954 (Exh.P.l) to the Tehsildar, Jaranwala for entering mutation regarding oral gift in favour of Petitioner No.l and his brother in equal shares to show that the view of the learned Judge that the transaction was a single and indivisible one was not correct. He has also submitted that the view of the learned Judge that if the appeal was decided on merits there was a likelihood that it would result in inconsistent decrees, was not correct. In short, the learned Judge was not justified in dismissing the appeal as having abated in toto but should have decided the same on merits. These submissions, inter alla, require further consideration. Leave is, accordingly, granted. Security Rs.1,

000. The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any. M. Z. M.????????????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted. ???????????