P L D 1956 Lahore 242 (PLP)

KAIKAUS, J.‑The property in dispute in the suit, out of which this second appeal arises, belonged to one Bakhsha who died in 1946. He is alleged to have made a gift of the whole of his property to one Ghulam Nazik. A mutation of this gift was entered on the 29th of May 1945. Before it could be sanctioned, Bakhsha died. A mutation on the basis of gift was rejected but a mutation of inheritance was sanctioned in favour of the same Ghulam Nazik on the 27th of April 1948, on the ground that he was the son of the deceased. The deceased, it may be stated, did leave a widow, Mst. Azmat by name. Muhammad Amin, who is a nephew of Bakhsha deceased, filed the present suit on the 19th of July 1952 for a declaration that the defendant was not the son of Bakhsha, and that the mutation in his favour would not affect his reversionary rights after the death of Mst. Azmat, the widow of the deceased. It was alleged that Bakhsha was governed by agricultural custom. Possession was not asked for on the ground that Mst. Azmat being the widow of Bakhsha was entitled to a life estate. Mst. Azmat was also impleaded as a defendant in the suit. She supported the defendant and said that he was the son of Bakhsha. It may here be explained that before Mst. Azmat married Bakhsha she was the wife of one Ghulam Hussain and the case of the plaintiff was that Ghulam Nazik was the son not of Bakhsha but of Ghulam Hussain, the previous husband of Mst. Azmat. The trial Court found that the defendant was the son of Bakhsha and that the deceased had also made a gift in his favour. On these findings the suit was dismissed. The plaintiff appealed to the District judge impleading only Ghulam Nazik as a respondent. The learned District Judge dismissed the appeal on the preliminary objection that Mst. Azmat was a necessary party to the appeal. The plaintiff has appealed against the decree of the District Judge. The only question for decision is whether Mst. Azmat was a neces sary party to the appeal. A necessary party as explained in Thakar Hari Ram v. Central Government through Secretary Commerce Department, Delhi (A I R 1941 Lah, 1) is one without whose presence no effective decree can be granted. A proper party, on the other hand, is one whose presence is necessary in order to completely and effectively adjudicate upon all questions arising in a suit. In order to determine whether Mst. Azmat is a necessary party all that we have to find is whether the plaintiff can be granted a decree which could be fruitful, although Mst. Azmat is not impleaded. The object of the plaintiff is to arm himself with a declaration so that when Mst. Azmat dies he may get the property. The effect of this decree will be that no person who claims through Ghulam Nazik would, when Mst. Azmat dies, be entitled to resist the suit of the plaintiff for possession of the land in suit on the ground either that Ghulam Nazik was the son of Bakhsha or that a valid gift had been made in his favour. Now it is quite clear that if the plaintiff did not make Mst. Azmat a party to the suit at all, the declaration sought for would certainly be helpful in securing the pro perty on the death of Mts. Azmat as against persons who claim through Ghulam Nazik. To the suit in the trial Court Mst. Azmat could not be said to be a necessary party as I will presently show. The argument put forward by learned counsel for the defendant is as follows: the suit has been dismissed as against Mst. Azmat, a suit which asked for a declaration that on the death of Mst. Azmat the plaintiff would be entitled to this property; the result is that as between Mst. Azmat and the plaintiff the question as to whether the plaintiff was to be entitled to succeed to this property on the death of Mst. Azmat has become res -judicata; if Mst. Azmat now alienates this property and the plaintiff files a suit for possession against the alienee, the alienee would be entitled to the benefit of res‑judicata and could successfully resist a suit for possession by the plaintiff, for the dismissal of this suit amounts to a finding that the plaintiff is not entitled to succeed on the death of Mst. Azmat. There are two replies to this argument. The first is that this matter will not become res‑judicata at all. Mst. Azmat is only a Performa defendant in the present suit. The plaintiff was not asking for a decree against her. He was only praying for a declaration as to the mutation effected in favour of Ghulam Nazik to the effect that it will not affect his reversionary rights. In cases where a male alienates any property and the reversionary files a suit challenging the alienation the alienor is not a necessary party and if impleaded is only a pro forma defendant. If the alienor has in the meantime died the position of his widow is not different. Similarly in cases where a mutation of inheritance is sanctioned in favour of a person whom the revisioner does not accept as heir and the widow agrees to that mutation so that the mutation may be regarded as kind of alienation by the widow, the widow need not be joined as a party in a suit to impeach the mutation. So whether we regard this suit as one challenging the gift or as one challenging the improper mutation of inheritance, the suit could very well have been brought without impleading the widow. It would be observed that in the present suit there is no clash of interests between the plaintiff and the widow. The plaintiff is trying to give her a life estate, which she denies she has. He is not at all making any allegation denying a right, which the widow alleges she has. Learned counsel for the respondent urges that although the widow may not have been a necessary or proper party, in the first instance, as she was impleaded, and there is a decree in her favour, the matter does become res‑judicata. But if she was only a pro‑forma defendant no matter would become res‑judicata between her and the plaintiff. There was no matter in issue between her and the plaintiff. The widow may be interested in her son and she may want a decision in favour of her son, but that does not create what is a clash of interest in law. It is only when there is a clash between the personal rights of the widow and the stand which the plaintiff takes, that any matter can be said to be in issue between them. I would, therefore, hold that this matter is not res‑judicata. Assuming, without conceding, that the matter was res -judicata, that would still not mean that the decree prayed for will be wholly ineffective. The decree will be binding on Ghulam Nazik and those who claim through him. The situation that Mst. Azmat may alienate the property may never arise. The mere fact that a declaratory decree will not be binding on some person who may ultimately be able to defeat the plaintiff is not at all a good reason for dismissing a suit on the ground that the decree would be futile. I would, therefore, hold that the appeal has been wrongly dismissed. I accept this appeal and remand this case to the learned District judge for hearing the appeal on merits. Costs of this appeal will be costs in, the cause. A. H. Appeal accepted.