P L D 1967 Lahore 613 (PLP)

ATAULLAH SAJJAD, J.‑Muhammad Din, son of Nazar of village Adha in Tahsil Daska, District Sialkot transferred on the 10th of January, 1951, by two registered deeds of gift, his landed property, a house and a vacant site in favour of his adopted son Muhammad Shafi, and Allah Rakha, the natural father of this Muhammad Shafi, Muhammad Shafi got 34 kanals and 13 marlas of land and a house vide deed Exh. U/2 and his father Allah Rakha got 58 kanals and 11 marlas of land and an open site vide gift deed Exh. D/1.

2. Muhammad Din died on the 5th of August, 1951, Nawab and 9 others including one Mst. Aisha Bibi, daughter of Imam Din who was a collateral of the deceased brought a suit for possession of the property which formed the subject‑mater of the two deeds of gift referred to above. The parties descend from the same common ancestor and are the collaterals of the deceased in the seventh degree, except Mst. Aisha Bibi who as we have already said is the daughter of a collateral of the deceased.

3. The plaintiffs made a dual attack on the validity of the gifts. They claimed that they were under the Shariat Law, heirs of the deceased and that the property in dispute being ancestral, the deceased had only a limited interest in it and had no power to alienate it by way of gift. It was further averred that the gifts were effected during marzul‑maut and under undue influence of Allah Rakha at a time when the deceased was ailing and did not possess a sound disposing mind. It was also alleged that half of the house gifted to Muhammad Shafi belonged to the plaintiffs and that the deceased had, therefore, no right to gift away more than one half of that house.

4. The defendants controverted all these pleas and contended that the property was not ancestral and this matter had become res judicata between the parties on account of some earlier judicial decisions, copies whereof were filed as D/4 to D/6. It was also stated in the written statement that the deceased was in a sound disposing mind at the time of the execution of the gift deeds and that the gifts were in lieu of services rendered to him by the defendants. It was also contended that Mst. Aisha Bibi plaintiff could not under the law or custom challenge the alienations. The question whether Imam Din, father of Mst. Aisha Bibi plaintiff, died during the lifetime of Muhammad Din or after, was also raised in the pleadings of the parties. The plaintiffs maintained that Imam Din died after the death of Muhammad Din in order to establish that his daughter Mst. Aisha Bibi had a locus stand to sue whereas the defendant denied that.

5. The trial Court framed the following issues:‑ "(1) Did Muhammad Din die after the coming into force' of the Shariat Application Act of 1951 ? (2) Did Imam Din die after the death of Muhammad Din? (3) Did Muhammad Din, deceased, validly transfer the land, the house and the open site by way of gift in favour of the defendants? "(4) Were the gifts effected during marzul‑maut? (5) Were the gifts affected under the undue influence of the defendants? (6) Was not Muhammad Din capable of appreciating his interests at the time of the gift and was he not in a sound disposing mind at that time? (7) Is the property in suit ancestral qua the plaintiffs? (8) Is the fact that the land in suit is not ancestral qua the plaintiffs res judicata against them? (9) Were the plaintiffs the owners of J of the house in ‑suit in the lifetime of Muhammad Din donor? (10) Can Mst. Aisha Bibi, plaintiff, challenge the gift under custom? (11) Relief."

6. Issue No. 1 was considered unnecessary and was not decided and issues Nos. 2, 7, 8, 9 and 10 were decided against the plaintiffs. In the finding under issue No. 10 it was held that Mst. Aisha Bibi being a woman could not challenge the gift under custom. It was also held that the property being non‑ancestral, the plaintiffs could not challenge the gifts on the ground that the donor had limited powers of disposal in regard to this property. It appears that there was some confusion in the mind of the learned trial Court about the nature of the challenge thrown to these deeds of gift. The plaintiffs had based their suit in para. 5 of the plaint on the clear allegations that they were the heirs of the deceased according to the Shariat Law. lf, they had based their suit on custom, the short answer to their claim would have been served by sections 6 and 7 of Punjab Custom (Power to Contest) Act It of 1920 which clearly say that collaterals beyond the fifth degree are not entitled to challenge alienations made by a person governed by custom and that alienations made of non‑ancestral property can in no way be challenged under custom. The suit if based on custom, was liable to dismissal on this short ground. The plaintiffs had however based their suits on their status as heirs of the deceased under the Shariat Law and they had in para. 8 of the plaint referred to custom only for the sake of raising a plea that at the time when the gifts were made the powers of the deceased in relation to the disposal of the ancestral property were governed by custom and were subject to restrictions placed on a person succeeding to ancestral property under the Customary Law. Since it has not been shown to us that Mst. Aisha Bibi was an heir of the deceased under the Muslim Law, we do not think that the decision of the trial Court, non‑suiting Mst. Aisha Bibi requires reconsideration.

7. The real controversy in this case revolves around the findings of the Courts below on issues Nos. 3 to

6. The trial Court found that the gifts were made during marzul‑maul and that Muhammad Din being an old man shifted to the house of Allah Rakha who was in a position to dominate the latter's will and did actually take advantage of his position in securing the deed of gift in his favour. So far as the gift in favour of Muhammad Shafi, was concerned, the trial Court held that that had been affected with the free consent of Muhammad Din as Muhammad Shafi was his adopted son but on account of the finding that both the gifts were made during marzul‑maut the gifts were held to be void and ineffective as against the rights of the plaintiffs and the Court passed a decree for possession of 9/10th shares of the disputed property in favour of the plaintiff's 1 to 9.

8. Allah Rakha and Muhammad Shafi defendants appealed to the District Judge. Before the District Judge, the counsel for the plaintiff‑respondents conceded that the question of marzul‑maut did not arise in the case because the disputed gifts had been affected before the amendment of the Shariat Law in 1951 and consequently were governed by custom.

9. It was faintly argued before us that this concession was not rightly made by the learned counsel who appeared before the District Judge. The gifts were made in January 1951 and the Shariat Law was amended in March 1951 laying down that the rule of decision in relation to gifts will also be the Muslim Law. The donor being a Rajput was governed by custom at the time of the execution of gift deed and we find from an answer to question No. 83 of the Customary Law of Sialkot District complied by D. J. Boyd in 1916 that there is no special custom in the Sialkot District applying the rule of marzul‑maut to gifts made by persons governed by custom. moreover the power of the alienation of a person is to be adjudged with reference to the Law applicable to him at the time when he made the alienation and the subsequent enactment of the Muslim Shariat Law Amendment Act of 1951 will not bring about any change in the character of the alienation made. Reference in this connection may be made to Khair Din and others v. Muhammad Hussain and others (PLD 1961 SC468), Mst. Sardar Bibi v. Abdul Latif and others (PLD 1956FC 137), Bashir Ahmad and 5 others v. Muhammad and 8 others (P L D 1956 Lah. 934), Niaz Ahmad and others v. Mst. Rashida Khanam and others (P L D 1959 Lah. 551) and Ata Muhammad v. Muhammad Shafi and others (A I R 1944 Lah. 121), which support the above proposition of Law.

10. We may also observe here that the finding of the trial Court that the disputed gifts were made during marzul‑maut was not warranted by the facts of the case. The gifts were effected on 10‑1‑1951. The donor died on 5‑8‑1951, i.e. about seven months after the gifts. The learned Judge relied on the death entry of Muhammad Din Exh. P/2 wherein it is stated that the deceased was suffering from fever for about a year before his death. The learned Judge, therefore, concluded that the same malady having continued for a year and resulting ultimately in the death of the donor, the gifts were hit by the doctrine of marzul‑maut. The learned Judge in coming to this conclusion referred to a phrase in Allah Rakha's deed of gift Exh. D /1 which translated in English would read as follows: "Life is uncertain and one does not know when the cup of, life may overflow and the bird of soul may fly from the cage, of body." and observed that the use of this phrase also indicated that the deceased was under the apprehension of immediate death. We may say that the learned trial Judge read more meanings in this phrase than were actually warranted. It is a matter of common v knowledge for all persons having anything to do with the Law Courts that such verbiage is a usual feature, in this part of the country of almost all legal documents dealing with disposal of property and drawn at Tehsil and District Headquarters. Such words may convey the ability of the petition‑writer to use archaic phraseology but they certainly cannot be pressed into service in order to interpret the mind of the executant of al document. We also find that the conclusion which the learned trial Court drew from the death certificate Exh. P/1 regarding the continuance of the illness of the deceased for one year is not sustainable in view of the evidence produced by the plaintiffs themselves. Imam Din (P. W. 2) stated that Muhammad Din used to suffer from fever by intervals and it was only for 10/12 days before his death that he continuously ran temperature.

11. We may observe that the finding of the learned trial Judge is not in accord with the correct legal notions about the rule of marzul‑maul. We find the following passage, which is supported by Hedaya and case Law, at pages 131‑132 of Mulla's Commentary of Muhammadan Law of 1955 (Fourteenth Edition):‑ "According to the Hedaya, a malady is said to be of "long continuance," if it has lasted a year; a disease that has lasted a year does not constitute marzul‑maut, for "the patient has become familiarised to his disease, which is not then accounted as sinckness". Hedaya,

685. But "this limit of one year does not constitute a hard‑and‑fast rule, and it may mean a period of about one year."

12. The fever even if it continued for a year ceased to have the effect of marz-ul‑maut and could not create in the mind of the deceased what was described by the Privy Council in Ibrahim Goolam Arif v. Saiboo and others (34 I A 167) a "pressure of the sense of imminence of death." In Jahan Khan and others v. Feroze (P L D 1951 Lah. 433) it was observed as under:‑ "It is only where a man's disease has become so much aggravated that he begins to apprehend that death was more probable than his chance to live, that the persons can be considered to be suffering from marzul‑maut." It was further observed:‑ "The orux in all these cases is to find out the state of mind of the deceased in order to ascertain whether there was such a preponderance of apprehension of death at the time of the execution of the deed in question that the death seemed to him more probable than life."

13. Similar observations were made by B. Z. Kalkaus, J. in Safi Ullah v. Ghulam Jabbar and four others (P L D 1955 Lah. 191). I n this case his Lordship appears to have expressed the view that it was not necessary that the disease from which donor was suffering should have ended fatally and emphasised that the findings that the gift was made during marz-ul-maut was referable to the state of mind of the deceased at that particular time. This is what his Lordship said :‑ "The only condition necessary for the , existence of marzul‑maut is the apprehension that death is most probable. The invalidity of gift or rather its change from a gift into a will results from the donor's state of mind alone."

14. Before we part with this aspect of the case we would like to refer to another judgment In re : Shamshad Ali Shah and others v. Syed Hassan Shah and others (P L D 1960 Lah. 300), where a Division Bench of this Court quoted with approval the following tests laid down in Abdul Ahad Khan and others v. Ahmad Nawaz Khan and others (I L R 12 Lah. 683) for determining whether a donor was suffering from marz-ul‑maut:‑ "(1) that the donor was suffering at the time of the disposition from a disease which was the immediate cause of his death; (2) that the disease was such as to engender in him the apprehension of death; and (3) that the illness incapacitated him from the pursuit of his ordinary avocations and prevented him from saying his prayers while standing." We held that none of the above conditions was present when Muhammad Din executed the disputed deed of gift.

15. As for the other issues the learned District Judge found that it could not be said that the deceased was incapable of appreciating his interest and did not possess a sound disposing mind when the aforesaid gifts were made. He also held that the gift in favour of Muhammad Shafi was not affected by the decision on issue No. 5 which related to the exercise of undue influence. This gift according to the learned District Judge was made with the free consent of Muhammad Din. The learned District Judge however held that Allah Rakha was in a position to dominate the will of the deceased and used that position for his own advantage. He also held that the gift was without consideration and was effected to the detriment of the adopted son of the deceased, i.e. Muhammad Shafi and others heirs and was therefore, unconscionable.

16. The main argument advanced before us by Mian Inayatullah in Appeal No. 496 of 1956, on behalf of Allah Rakha donee is that there was no evidence to support the findings of the lower Courts that the gift of Allah Rakha was obtained by undue influence. The learned counsel strenuously argued that the mere fact that Muhammad Din was about 85 years of age at the time of his death and had been living with Allah Rakha whose son and wife were serving him is not enough for drawing an inference that undue influence has been exercised by him. He has also attacked the findings of the learned (1) District Judge that the gift was without consideration. Accor ding to the learned counsel, under Customary Law services have always been regarded as a good consideration for making a gift of property. The learned counsel for the respondents urged that the exercise of undue influence being a question of fact, had been decided by the lower Courts and that in a second appeal it was not open to us to reverse those findings of fact. We are not unaware of our limitations while dealing with questions of fact in a second appeal but we can certainly interfere when the findings of fact are not based on cogent evidence or are vitiated by a misreading of evidence or the appraisal of evidence is fallacious and is based on a material mistaken assumption. Reference may be made to Jahan Khan and others v. Feroz (P L D 1951 Lah. 433) and Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38).

17. There is a concurrent finding of fact by both the Courts below that while the gift in favour of Muhammad Shafi was effected with the free consent of the donor, the other gift in favour of Allah Rakha was made under undue influence. The gifts were made on the same day one after the other and were written by the same petition‑writer. According to Ghulam Sarwar (P. W. 1) and D. W. 1 Elahi Bakhsh petition‑writer, the deeds were drawn up at the instance of the deceased. They were read over to him twice, once by the petition‑writer and on the second occasion before the Registrar. The findings of the learned lower Courts that the mind of donor was free at the time when gift in favour of Muhammad Shafi was effected but was possessed by undue influence at the time when the gift in favour of Allah Rakha was made appears to be a clear contradiction in terms. We possibly cannot reconcile our selves to the proposition that the donor could simultane ously be visited by these two mutually repellant states of mind. It is true that under section 16 of the Contract Act there will be a presumption against a person who is in position of real or apparent authority over the other and who makes a contract with a person whose mental capacity is temporarily or permanently effected by reason of age, illness or mental or bodily distress. In such a case if the contract appears to be unconscionable on the face of it, the burden of proving that the contract was not induced by undue influence, shall lie upon the person who was in a position to dominate the will of the other and who derives benefit from the contract.

18. In Tate v. Williamson ((1886) 2 Ch. A 55) Lord Chelmsford, L. C. stated the doctrine of undue influence in the following terms:‑ "Whenever two persons stand in such a relationship, that while it continues, confidence is necessarily reposed by one and the influence which necessarily grows out of that confidence is possessed by the others, and this confidence is abused or the influence is exerted to obtain an advantage at the expense of the confiding party, the persons so availing of his position will not be permitted to retain the advant age." In Allcard v. Skinner ((1888) 36 Ch. D 145) the principle underlying the doctrine of undue influence was discussed and it was observed: "What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly or is it that it is right and expedient to save them from being victimized by other people. In my opinion the doctrine of undue influence is found on the second of these two principles." In Re: Abdul Aziz v. The Multan Electric Supply Company Limited (P L D 1958 Lah. 614) Kaikaus, J. said: "After having determined as to whether one party was in a position to dominate the will of another, there sill remains another question and that is whether an unfair advantage was taken. That again depends upon the circumstances of each case and the criterion would be whether the Court considering all the attendant circumstances regards the transaction as unconscionable." In a recently reported judgment In re : West Pakistan Province v. Jamshed Miran (P L D 1965 Lah. 729), our brother Sardar Muhammad Iqbal, J. observed as follows: "If therefore, the appellant enters into a contract with the respondent and the transation appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other."

19. We have gone through the record and we find that the evidence adduced by the plaintiffs before the trial Court concentrated on the fact that the donor was not in possession of a sound disposing mind and that his mental faculties had been so paralysed that he could not understand what he was doing. The findings of the Courts below that the gift in favour of Muhammad Shafi was made with the free consent of the deceased and the finding of the learned District Judge that "the deceased was not incapable of understanding his interest" is sufficient to discredit this evidence. We are also inclined to the view that this is not a case where the presumption envisaged under section 16(2)(b) of the Contract Act can be drawn against Allah Rakha. Before such a presumption can be drawn mental incapacity or some other circumstances mentioned in section 16 of the Contract Act must be proved. In Tulsiram Kirchand Parwar v. Chunnilal Panchamsao Parwar and others (A I R 1938 Na?. 391), a Jain widow of about 100 years of age had executed a sale‑deed in favour of her cousin Panchamsao. The grandson of her husband filed a suit inter alia on the ground that the widow was a very old and feeble woman and lived with the defendant till her death and it was under defendant's influence that the sale‑deed had been executed. In column 2 at page 392 it was observed:‑ "It was argued that under section 16(2) (b) it must be assumed that the defendant was in a position to dominate Bayabai's will because of her age and that since there was no consideration the bargain is, on the face of it, unconscionable, and that therefore the burden lies on the plaintiff and not on the defendant as the lower Appellate Court holds. S. 16 has been analysed by their Lordships of the Privy Council in 3 Pat. 279 (Raghunath Prasad v. Sarju Prasad). As they point out, the first thing, which has to be established (and the burden is on the person asserting it), that the relation subsisting between the parties was such that one of them was in a position to dominate the will of the other. It is only when that has been established that the second question arises, namely whether he used that position in order to obtain an unfair advantage over the other. One of the ways in which the first point can be established is by showing that the mental capacity of the person whose will is said to have been dominated was temporarily or permanently affected by reason of age, illness, or mental or bodily distress. But the burden is still on the party asserting undue influence."

20. We have it in the evidence of the witnesses for the defendants that the deceased Muhammad Din walked on foot to Sialkot and it was he who asked the attesting witnesses to accompany him to Sialkot for the purpose of attesting the deeds of gift. Elahi Bux (D. W. 1) petition‑writer who is an independent witness also bears testimony to the fact that the deceased was not ailing and that the deeds of gift had been drawn up at his instance. Ghulam Sarwar (P. W. 1) who was also an attesting witness is not able to contradict the suggestion that the deceased Muhammad Din had walked a distance of 3 miles from his village to Sialkot. This would show that in spite of advanced age the mental capacity of the deceased had not been affected.

21. There were other obvious reasons for Muhammad Din to make the gifts in favour of Muhammad Shafi and Allah Rakha. He adopted Muhammad Shafi in 1936 and the deed of adoption was registered. It is mentioned in this document which is Exh. D/3 on the record that in case of Muhammad Shaft's death during the lifetime of the adoptive father, the property of. Muhammad Din will be inherited by the brothers of Muhammad Shafi. These lines appear to have been scored out later on but they would give an indication to the inner working of the mind of the donor even in 1936. Some of the plaintiffs had been litigating with Muhammad Din since 1929, as would appear from the copies of the judgments Exhs. D/4 and D/6 which are on the record of this case. Muhammad Shafi had been serving Muhammad Din deceased and his wife. After the latter's death Muhammad Din who had been residing in the same courtyard was taken to the house of Allah Rakha where he was looked after by Muhammad Shafi, Allah Rakha and his family. Even Nazir (P. W. 4) admitted that Allah Rakha took Muhammad Din to his house and served him for eight months before his death. The witnesses produced by the defendants also deposed to the services which were rendered by Allah Rakha and his family to Muhammad Din. Muhammad Din was competent to make a gift of the property in question in lieu of services rendered to him and there is no evidence to show that Allah Rakha exercised undue influence on the deceased or that the gift made in his favour was unconscionable. The plaintiffs having sought to array themselves against Muhammad Din, he irrevocably cast his lot with Allah Rakha and his family. There was no closer heir in the field and the old man was free to dispose of his non‑ancestral property in any manner he liked. In re : Ma Yan and another v. Maung Thin and another (A I R 1935 Rang. 174), an old man of 95 who was living with his grandchildren gifted his property to those children in preference to a daughter with whom he had strained relations. A suit for cancellation of the gift was filed and it was alleged that undue influence had been exercised over the old man. The Court at page 177 observed as follows:‑ "In arguing the appeal the appellants' counsel read the evidence of the principle parties; but from this evidence, so far as I can see, nothing really emerges to show that undue influence was exercised by any person on U Zo. It is a fact that U Zo was favouring his favoured grand children, but from this undue influence cannot be assumed, when the party executing the deed is hale in mind and con sidering his age, extraordinarily fit in body, and all that really can be said is that the parties considered that there must have been undue influence. In my opinion what influenced U Zo mostly was not too great affection for his grandchildren, but a very natural dislike for his unfilial daughter, and on the evidence and the circumstances I am unable to held that the deed can be regarded as void owing to undue influence." We, therefore, hold that Muhammad Din was physically and mentally fit when he made the gift in favour of Allah Rakha and his mind was not possessed by any undue influence at that time.

22. But we have yet to deal with another question which came to our notice after we had heard lengthy arguments. It transpired that five respondents in appeal No. 496 of 1956, namely, Nawab, son of Maula Dad, Nawab, son of Bhola, Akbar, Mst. Muhammad Bibi and Mst. Rasul Bibi had died. They were also appellants in Appeal No. 542 of 1956. In appeal No. 496 of 1956, the legal representatives of Nawab, son of Maula Dad and Mst. Rasul Bibi were brought on record in time. In case of Nowab, son of Bhola and Akbar, application for bringing their legal representatives on record was made after two years. No application to bring the legal representatives of Mst. Muhammad Bibi on record is traceable from the file of this appeal. In appeal No. 542 of 1956, a very belated application to bring the legal representatives of only two appellants, i.e. Akbar and Mst. Muhammad Bibi was made. No application appears to have been moved for impleading the legal representatives of the other deceased appellants.

23. We have considered the extremely belated applications for setting aside the abatement and for bringing on record the legal representatives of deceased persons in both the appeals and we feel that there is no ground to accede to this request. The applications were made in each case after more than two years and in view of the fact that parties belong to the same village it cannot be believed that Allah Rakha appellant in Appeal No. 496 of 1956, did not know about the death of respondents. Similarly we do not consider that the reasons of ignorance and illness advanced in the petition filed in appeal No. 541 of 1956, are convincing. We, therefore, dismiss these petitions.

24. It was argued before us by the counsel for the respondents in Appeal No. 496 of 1956, that the appeal of Allah Rakha had abated in its entirety and should be dismissed. Learned counsel made this statement even at the risk of the dismissal of his own appeal where the deceased respondents above named were appellants as stated above and their legal represen tatives had not been brought on record. We however find that the appeals have abated only partially. Rules 3 & 4 of Order XXII of the Civil Procedure which are applicable to appeals under section 107 and Rule 11 of Order XXII of the Civil Procedure Code read as under:‑ "3. (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate so jar as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. 4. (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone on a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant." It would appear from the above provisions that according to the statute the appeal abates only qua the deceased respondent but Courts are faced with practical difficulties in some cases and partial abatement thus caused leads to the abatement of the appeal in its entirely, Kaikaus, J. in Fazal Dad v. Nek Alam and others (P L D 1957 Lah. 430) gave instances of such cases and observed:‑ "There are cases where the nature of the dispute between the parties necessitates the presence of a number of persons and the matter involved is such that the right of A against B cannot be determined without at the same time determining the right of B against C. Cases of this nature are suits for partition and rendition of accounts. There may be also cases where there is a joint right held by persons who in law constitute one legal entity so that they can only sue jointly on a joint and indivisible cause of action against more than one person. In all such cases the absence of any party from the record may render the suit incompetent."

25. The Supreme Court had recently an occasion to deal with the question of abatement in Wali and others v. Manak Ali and others (P L D 1965 S C 651), and incidentally it was Kaikaus, J. who wrote the judgment. His Lordship reiterated the proposition of Law contained in the above quotation from the case of Fazal Dad and observed that suits for partition of property or for accounts of a partnership and for pre‑emption are the type of cases where the Law envisages only one cause of action and does not contemplate partial adjudication. In this case the Supreme Court was called upon to decide the effect of the death of a respondent who was one of the two persons in whose favour an agreement for sale of one square of land had been executed and who died during the pendency of the appeal in the Supreme Court. The Court came to the conclusion that in view of section 17 of the Specific Relief Act, 1887, the appeal had abated and could not proceed. The Supreme Court however appears to have accepted the contention that where the decree relates to different and ascertainable shares of property, the appeal will not abate so far as other living parties are concerned and quoted with approval the cases of Sant Singh v. Golab Singh (A I R 1928 Lah. 572) and Nanak v. Ahmad Ali (A I R 1946 Lah. 399) which lay down the same proposition. The law with regard to abatement was stated at page 652 in the following terms: "This 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 adjudi cation will not be refused unless there exists some insuperable practical obstacle to prevent it."

26. Referring to the argument that although the agreement for sale did not specify the shares of the promises it would be presumed that they wanted to share the land equally, his Lordship observed as follows: "The general presumption no doubt is that where shares are not specified in a joint purchase, or acquisition, the shares are presumed, in the absence of indication to the contrary, to be equal. It is not necessary however for the appellant to rely on this presumption for he is not affected by the shares not being equal. After all the vendees had agreed to purchase in some shares, and as long as these are ascertainable shares the argument of the appellants remains unaffected. The joint tenancy of English law is unknown in this country though in the relationship of landlord and tenant there may be incidents of that estate. We are here concerned however not with any relationship of landlord and tenant but with acquisition of ownership and whenever persons acquire property in this country they do so as tenants in common and their shares are ascertain able. It is true also that if this was a sale‑deed and not an agreement for sale the abatement of the appeal as regards one respondent would not bar the hearing it as against another."

27. In Fateh Muhammad and other ' v. Mst. Hayat Begum and others (P L D 1961 Lah. 274) the Muslim Law heir of a deceased person had filed a suit against the heirs under he Customary Law and a decree was passed in favour of the plaintiff. The defendants appealed and impleaded one of them (Bagga) who had not joined in the appeal as a respondent. That respondent died and the Additional District Judge who heard the appeal dismissed the same on the ground that appeal had abated in toto. Second appeal was taken to the High Court where Mst. Nur Begum res pondent one of the Muslim Law heirs died. Her representatives were not brought on record and it was urged at the hearing of the appeal that the appeal had abated in toto. It was held that the appeal in the Court of the District Judge had abated partially to the extent of Bagga's interest and the appeal in the High Court had also abated partially to the extent of the share of Mst. Nur Begum.

28. The Division Bench in coming to this decision relied mainly upon the Full Bench decision of Lahore High Court in Sant Singh and another v. Gulab Singh and others (I L R 10 Lah. 7) to which reference has been made earlier. Sir Shadi Lai, C. J., had said in that case:‑ "A distinction must, however, be made between the cases, in which there is a specification or definition of shares or interest, and those in Which there is no such specification or definition. The later class of cases can have little or no bearing upon the issue arising in this case which, as stated above, is one of ascertained shares." It was further observed:‑ "There is no real difficulty in adopting in the present case the rule against total abatement, which has the advantage of enabling the Court to adjudicate upon the merits of the case and does not compel it to dismiss it upon a technical ground. The Court exist for determining the merits of the dispute between litigants, and it is their duty to avoid, if they can legally do so, a result which causes hardship." Jai Lal, J., in his separate judgment dealt with the question of contradictory decrees resulting from the decision of the Court in such a case and observed: "I am unable to see that there is any real force in this objection. It must be remembered that the decree in favour of A has been allowed to stand by this Court not as a result of any adjudication on the merits in his favour but by virtue of the operation of a provision of law due to the default of the appellants." Kayani, C. J., in Fateh Muhammad's case referred to above, commented approvingly on this reasoning and remarked;‑‑ "This argument, I say with respect, has great merit, for a decree does not become final until it is tested in appeal, and a decree which emerges from the dust of abatement has not been tested in appeal. That part of the property in dispute goes out of action, as though there never had been any action in respect of it. Instead of dying; that particular respondent might well have compromised with the appellant."

29. The principle of law that emerges from the above authorities is this: If the interest of the parties are distinct, divisible or ascertainable and the cause of action is not such that it can continue only in the presence of all the parties or their legal representatives the appeal will abate only partially.

30. We are also inclined to the view that in a case where there is a specification or definition of shares or interests and an appellant or a respondent dies during the pendency of the appeal without his legal representatives being brought on record, the possibility of contradictory decree resulting out of the decision of the Court will not be a sufficient reason to prevent the Court from determination of the rights of the parties who are alive or whose legal representatives have been brought on record in time.

31. In this case the shares of the plaintiffs respondents in appeal No. 496 of 1956 had been ascertained by the Courts and each one had been declared to be entitled to the possession of 9/10th share of the property in dispute. The representatives of Nawab, son of Maula Dad and Mst. Rasul Bibi were brought on record in time. The appeal has however abated in respect of Akbar, Nawab, son of Bhola and Mst. Muhammad Bibi. Appeal No. 542 of 1956 has also abated so far as the snares o: five appellants namely, Nawab, son of Maula Dad, Nawab, son of Bhola, Akbar, Mst. Muhammad Bibi and Mst. Rasul Bibi appel lants are concerned.:

32. We have given a finding to the effect that the gift in favour of Allah Rakha was not the result of undue influence. In view of that the judgment and decree of the learned District Judge, Sialkot, so far as it relates to the gift in. favour of Allah Rakha is set aside and a decree is passed in favour of Allah Rakha appellant in respect of the property gifted to him by Muhammad Din deceased but this decree will not cover the shares of those respondents against whom the appeal has abated.

33. Since we have found that the gift in favour of Allah Rakha was valid we dismiss Appeal No. 542 of 1956. The parties will bear their own costs in both the appeals. K. M. A. Appeal dismissed.