P L D 1952 Sind 64 (PLP)

VELLANI, J.

Abdullah defendant 1 and his nephew Anwar Ali are alleged to have agreed by a writing dated 6th January 1947, to sell to the plaintiff the piece of land in suit, and to have failed to carry out their agreement. The suit seeks a money decree of Rs. 77,600, being Rs. 10,000 for return of earnest money paid, and Rs. 67;600 for damages for breach of contract. On 5th may 1950, when the plaint was presented, Anwarali had died and the plaintiff impleaded Abdullah as defendant 1, and Anwarali's widow Noorbanu as defendant No.

2. The cause of action is said to have arisen on 5th May 1947, and again on 30th August 1947. On 25th November 1950, the plaintiff filed this application stating that on enquiries made at the time of the institution of the suit, he had learnt that Anwarali's widow Noorbanu was his only legal representative. From the written statement, however, the plaintiff came to know that besides Noorbanu, Anwarali left his mother Mariam Bai and two sisters, Amina and Rahmat, as his heirs. He, therefore, sought to have these three heirs joined as defendants on the ground that they were proper parties to the suit. The application has been resisted on the ground that the persons sought to be joined were not merely proper, but neces sary parties whose shares in the estate of Anwarali deceased could not be reached without their joinder in suit, and that since section 22 of the Limitation Act the suit will be deemed to have been instituted against them from the time of their joinder, the suit must necessarily fail as the application for their joinder was made more than three years after the accrual of the cause of action. The plaintiff's main contention has been that Noorbanu defendant 2, the widow of Anwarali deceased sufficiently represented his estate, and a number of rulings was cited in support of this contention. There have, however, been con flicting decisions on this matter as appears from Mulla's Commentary on Muhammadan Law (13th Edition, 1950) at page 35‑40 to which and to some others, I have been referred. The principle that the estate of a Muslim devolves at death (subject to payment of debts and legacies which do not however delay the devolution) upon heirs in proportionate shares with rights which are akin to those of tenants‑in‑com mon was laid down after consideration of Muslim text‑books by Mahniood, J. in Jafri Begum v. Amir Muhammad Khan I L R (1885) 7 All.

822. That case also decided that the law of procedure to be applied is that of the Court appropriate to the action, and not the Muslim law of procedure. The learned judge observed at page 842 : "Upon the death of a Muhammadan owner, his property, as I have already shown, immediately devolves upon his heirs, in specific shares ; and if there are any claim against the estate, and they are litigated, the matter passes into the region of procedure, and must be regulated according to the law which governs the action of the Court. The plaintiff must go to the Court having jurisdiction, and institute his suit within limitation, impleading all the heirs against whose shares he seeks to enforce his claim ; and if he omits to implead any of the heirs, the decree would be ineffective as regards the shares of those who were no parties to the litiga tion and to hold that a decree obtained by a creditor of the deceased against some of his heirs will bind also those ‑heirs who were no parties to the suit, amounts to giving a judgment inter partes, or rather a judgment in personam, the binding effect of a judgment in rem, which the law "limits to cases provided for by section 41 of the Evidence, Art." Continuing, the learned judge said at page 843 : "But our law warrants no such course, and the reason seems to me to be obvious. Muhammadan heirs are inde pendent owners of their specific shares, and if they take their shares subject to the charge of the debts of the deceas ed, their liability is in proportion to the extent of their shares. And once this is conceded, the maxim res‑inter alios acta alteri nocere non debet would apply without any such qualifications as might possibly be made in the case of Hindu co‑heirs in a joint family ..There seems no reason why, in such a case, those should be bound by the decree who were no parties to the litigation, and had no opportunity of defending themselves against the creditors' claim by putting forward their own case". At page 844, the learned judge further observed " ..the law of British India has framed its own rules of procedure ; and bearing in mind the analogy of the principle by which, not the lex loci contractus, but the lex fori, regulates all matters going to the remedy, ad, litis ordinationem. I would reject the rules of the Muhammadan Law of "procedure in connection with the binding effect of decrees upon absent heirs, and it follows that a decree obtained in a litigation to which the absent heirs or those who were out of possession were no parties, cannot be executed against them or against their shares in the inherited property". In Abdul Majeeth Khan Sahib and nine others v. Krishna machariar I L R (1917) 40 Mad. 243 a Full Bench of. the Madras High Court held that a Muslim heir has no authority to sell the shares of his co‑heirs even though for the purpose of discharging the debts of the deceased, and that if he does so, the sale is not binding on his co‑heirs. Abdur Rahim, J. at page 254 observed : "As far back as 1878, the Judicial Committee in Bazayet Hosein v. Dooli Chund, (1879) I L R 4 Cal. 402 (P C) s. c. L R 5 I A 211, held that an heir‑at‑law was entitled to alienate his share in spite of the fact that there were, debts of the deceased still outstanding and it would not have been possible to hold this if the inheritance did not devolve on the heir on the death of the propositus. Mr. Justice Mahmood in Jafri Begum v. Amir Muhammad Khan, (1885) I L R 7 All. 822 (F B) has fully discussed the question and I do not think it would be of any use to add anything more to his reasoning. As regards the nature of the tenure of the co heirs' shares, the heirs of the "deceased Muhammadan take their shares in severalty, their rights being analogous, to those of tenants‑in‑common and not of members of a joint Hindu Family ; see Abdul Khader v Chidambaram Chettiyar , (1909) 1 L R 32 Mad.

276. There cannot be the slightest doubt therefore upon the principles of Muhammadan Law and also upon the authori ties that one heir has no right to deal with the shares of the other heirs". And at page 258, Shrinivasa Ayyangar J. observed "I agree. In the absence of any right in one of the heirs to represent the co‑heirs, one of several co‑heirs can only deal with his or her interest in the ancestor's property inherited by them. My learned brother has shown that there is nothing in the Muhammadan Law giving such a right to one of the co‑heirs who may happen to be in actual possession of the whole of the ancestor's estate ; such possession, it must be remembered, is presumably on behalf of all the co heirs. He is not constituted the representative of the deceased and cannot administer his property even for the limited purpose of paying off his debts". The principles on which this case proceeded have been approved and applied in Jan Muhammad and others v., Bibi Karam Chand and others A I R (1947) P C

99. In Bhagirthibai v. Roshanbi I L R (1919) 43 Born. 412 Heaton and Hayward JJ. after examining the preceding case law, held that the share of a Muslim heir who had not been impleaded as a defendant in a creditor's suit to recover the debt from the deceased Muslim's property, was not bound by the decree in suit, and sale in that suit of the property of the deceased did not bind the share therein of the heir not im pleaded in the suit. This case was followed by Macleod, C. J. and Crump J. in Lala Miya v. Manubibi I L R (1923) 47 Bom.

712. To the same effect is the decision in Firm Bishambhar Nath Gopi Nath v. Hashim Begum A I R (1949) Oudh

56. It was said for the plaintiff that in Khiarajmal v. Daim I L R (1905) 32 Cal. 296 at page 313, the Privy Council in dealing with the estate of Nabibaksh treated it as sufficiently repre sented in that suit, although the name of his infant daughter had not been brought upon record, and held her share in .her father's property bound by the decree. It was argued that the Privy Council had there accepted the principle that a Muslim co‑heir was bound by a decree passed against the estate of the decree if it was sufficiently represented for the purpose of the suit, and that Srinavasa Ayyangar, J. in Abdul Majeeth Khan Sahib and nine others v. Krishnamachariar I L R (1917) 40 Mad. 243 at page 258, and Sturat, J. in Dip Narian Rai v. Lachhman A I R (1925) All. 479 at page 480 had understood the Privy Council to apply that principle in the case of the infant daughter of Nabi Baksh. The case before me is akin to Bhagirthibai v. Roshanbi I L R (1919) 43 Bom. 412, where the Court considered whether the share of a co‑heir not joined in the suit was bound by the decision in a suit to recover a debt due by the deceased from his estate and is different from the case of Nabibaksh's infant daughter in Khiarajmal v. Daim I L R (1905) 32 Cal. 296 at page 313, for Nabibaksh had been impleaded as a defendant and had died while the suit was pending, and representa tion of the estate of a deceased party to the suit stands on a different footing‑cf. per Srinavasa Ayyangar in Abdul Majeeth Khan Sahib and nine others v. Krishnamachariar I L R (1917) 40 Mad. 243 at page 258, and is affected by the law of procedure of the Court appropriate to the action. The dictum of Mahommad J. in this regard has been adverted to with approval by the Privy Council in Nawab Mirza Kazim Ali Khan and others v. Nawab Mirza Sadiq Ali Khan A I R (1938) P C 169 at page

173. On consideration of all these authorities. I have reached the conclusion that any decree which may be passed in the present suit against defendant 2 would not be binding upon the heirs now sought to be joined, that is to say, that they are necessary and not merely proper parties to the suit. If joined, section 22 of the Limitation Act would apply to them, and, since more than three years (which it has been conceded is the period of limitation applicable to this suit) elapsed between he accrual of the cause of action and the application for joinder, I decline to join them as defendants to the suit and so dismiss the application with costs. A.H. Application dismissed.