P L D 1975 Lahore 143 (PLP)

Raja Abdul Razzaq for Respondent No.

2. Date of hearing : 7th June 1974. Appeal against the judgment and decree passed by the Senior Civil Judge, Sahiwal, was originally filed in the High Court of West Pakistan, Lahore, on 10-3-1960. The same was, however, transferred to the Court of the learned District Judge, Sahiwal and was received there on 15-2-1962. During the pendency of the appeal in the High Court, respondent No. 2, Mst. Barkat Bibi, died on 19-12-1961. After the appeal had been received by the learned District Judge, an application was filed by the appellant through his counsel on 17-5-62 under Order XXII, rules 4 and 11, C. P. C. stating that respondent Barkat Bibi had died on the date mentioned above and the appellant Umid Ali and respondent No. 1, Wali Muhammad, were her legal representatives and since they were already on record, therefore, this fact may be noted and the appellant and respondent Wali Muhammad may be treated to be the legal representatives of the deceased respondent,

2. At the time of the hearing of the appeal before the learned District Judge, preliminary objection was taken to the effect that with the death of respondent No. 2, Mst. Barkat Bibi, a necessary party according to the learned counsel for the respondents, the appeal had abated in toto. This objection was held to be valid by the learned District Judge by his order dated 10-10-1963 and the appeal was held to have abated in toto.

3. The only question to be examined in the present case is as to whether the appeal can abate in toto in the circumstances of the case. The property in question was gifted away by respondent No. 2 in favour of respondent No. 1, Wali Muhammad, on 11-2-1959. The appellant filed a ,suit for declaration to the effect, that the said alienation was ultra vires and inoperative on his reversionary rights after the death of respondent No.

2. It is not denied that after the gift, respondent No. 2 had taken over the possession of the suit property. The question which arises for considera?tion is; as to whether the donor, who is alienor, in the circumstances of the case can be treated a necessary party or not. The main test for finding out; as to whether a particular party is a necessary party or not is; whether in his absence an effective decree can be granted or not. If a fruitful decree can be passed in his absence, then the said party cannot be held to be a necessary party. It has been held in Muhammad Amin v. Khamisa and others P L D 1956 Lah, 242 that in a suit for declaration to the effect, that certain mutation of inheritance in favour of the defendant, whose status as son of the last owner, was disputed, would not affect the reversionary rights of the plaintiff after the death of the widow of the last owner, who according to the custom had a life estate in the land mutated, the widow, though impleaded as a pro forma defendant in the suit was not impleaded in the appeal, was not a necessary party and the dismissal of the appeal on that ground was illegal. ????? The plaintiff in that case had not asked. for any relief and decree against the said defendant. He had only prayed for declaration that the mutation effected in favour of another defendant would not affect his reversionary rights. It was held that where a male alienates any property and the reversioner files a suit challenging the alienation, the alienor is not a necessary party and if impleaded is only a pro forma defendant. It was further held that in cases where a mutation of inheritance is sanctioned in favour of a person, whom the reversioner does not accept as heir and the widow agrees to that mutation so that the mutation may be regarded as a kind of alienation by the widow, the widow need not be joined as a party in a suit to impeach the mutation. In that case, it was alleged, that the last male? holder Bakhsha was governed by agricultural custom and, as such, could not gift away the property in favour of the respondent before the High Court. It was further pleaded that since the last male-holder was governed by the custom, therefore, after his death the whole property would devolve upon his widow, Mst. Azmat, as limited owner and for this reason it was prayed that the alienation by way of gift made by last male-holder would not affect the reversionary rights of the plaintiff. As such, it was conceded there that the property had devolved upon the widow of the last male-holder, but in spite of that no relief or decree had been claimed against her. It was only alienation by way of gift, made against the defendant, which was challenged. Similarly in the present case the validity of the gift made by Mst. Barkat Bibi, a limited owner according to the plaintiff, has been challenged and no relief has been claimed against her. The only relief sought by way of declaration is that when Mst. Barkat Bibi dies the plaintiff may get the property, as the effect of the decree in his favour would be that no person, who claims through respondent Wali Muhammad would be entitled to resist the suit of the plaintiff for possession of the property in suit after the death of Mst. Barkat Bibi. In the circumstances Mst. Barkat Bibi was a proper party, whose presence might be necessary in order to completely and effectively adjudicate upon the question involved in the suit. However, the relief claimed by the plaintiff can be granted even in he absence and the decree to be passed as such in favour of the plaintiff would be fruitful. It may, however, be made clear at this stage that the limited interest of Mst. Barkat Bibi in the property is not accepted by the respondent, who claims that she was a complete owner in the given circumstances of the case. However, the question ; as to whether she was a necessary or a proper patty is to be determined in the light of the averments as made by the plaintiff in his plaint.

4. The view as taken in 1956 Lahore has been followed in Muhammad Khan v. Abdul Aziz and others (1) wherein it was held in the similar circum?stances of the case, that widow was not a necessary party but only a proper party and on account of her death during the pendency of the appeal the same would not abate.

5. The result of the above discussion would be that since Mst. BaIkat Bibi was only a proper party, therefore, with her death the appeal would not abate. Since the learned District Judge has held otherwise, his findings in this regard are set aside. The appeal would be deemed to be still pending decision on merits. The appeal is accepted without any order as to costs and the case is remanded to the learned District Judge to be decided in accordance with law, after hearing the parties. S. A. H.????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.