1980 PLP 1794 (CLC)

Muhammadan Law by Mulla, 17th Edn., p. 32; Mst. Sakina Begum v. Shahrbano Begum 11, R 10 Luck. 443; Chakopy v. Iypevarghese A I R 1956 Tray.-Co. 147; Dinar Trading Company v. Allah Bux and others P L D 1965 Kar. 36; Jehrabai Sadullah Khan Mokasi v. Bismillahbi Sadruddin Kaji A'I R 1924 Bom. 420; 891 C 281 and Muthuraman Chettiar v. Adaikappa Chetty, and others A I R 1936 Mad. 336 ref. (b) Civil Procedure Code (V of 1908) O. XXII, r. 4 as amended by Law Reforms Ordinance (XII of 1972), S. 2 and Sched. Item (ix), (C. P. C.) read with Civil Procedure Code (V of 1908), O. XXII, r. 4-Substitution of sub-rule (31 and addition of new sub-rule (4) in O. XXII-Effect: Non-joinder of legal heirs of plaintiff or defendant, held, of no legal consequence. Fakhruddin Farooqui for Plaintiff. Niaz Ahmed Khan for Defendent. These are the objections under section 47 read with Order XXI, rule 58, C. P. C. filed by Messrs Afshan Qureshi and 6 others legal heirs of the deceased Nazir Ahmed Qureshi, hereinafter referred to as the objectors. The facts leading to the filing of the above objections are that the plaintiff bank filed a suit on 9-2-64 for the recovery of Rs. 56,130.06 against Nazir Ahmed Qureshi (hereinafter referred as the deceased) who expired on 16-2-65. Thereupon., the plaintiff bank filed an application on 8-5-65 under Order XX, rule 4, C. P. C. (Miscellaneous Application No. 672/ 65), supported by an affidavit praying them, that the widow Mrs. Begum Nazir Ahmed Qureshi and Mr. Jamshed Qureshi son of the deceased be brought on the record in place of the deceased. The above application was allowed by an order dated 23-5-66. Thereupon, an amended plaint was filed, but the remaining heirs the present objectors were not brought on the record.- The above two legal heirs were served with the summons but remained absent and; therefore, the suit proceeded ex parte and it was decreed on 25-4-67. The plaintiff bank filed the present execution application as far back as on 31-5-68 and sought the attachment of the building bearing No. 42/1/C situated in PECHS, Karachi, which belonged to the deceased prior to his death. The above property was attached it pursuance of an order dated 13-5-68. Objectors have filed the present application on 277-3-79, i.e. nearly after 11 years, from the date of the attachment order. 2.(a) In support of the above application Mr. Niaz Ahmed Khan, learned counsel for the objectors has urged that upon the death of Nazir Ahmed Qureshi on 16-2-65 the. property in question automatically stood vested in all the legal heirs and, therefore the widow and one of the sons were not competent to represent the other legal heirs. His further submission was that the concept of representation .is not recognised under the Muslim Law. In support of his above contention Mr. Niaz Ahmed Khan has referred to the principles of Muhammadan Law by Mulla 17th Edn., p. 32 and has also referred to the case of Mst. Sakina Begum v. Shahrbano Begum (1 L R 10 Luck. 443), and the case of Chalcopyll v. Lypevaghese (A I R 1956 Trav: Co. 147). On the other hand, Mr. Fakhruddin learned counsel for the decree-holder has urged that tile plaintiff bank after making full efforts could ascertain the names of the two legal heirs who were brought on the record and, therefore, the estate of the deceased was duly represented. In support of his above contention lie has referred to the case of Dinar Trading Company v. Allah Bux and others (P L D 1965 Kar. 36) and the case of Jehrabai Sadullah Khan Mokosi v. Bismillahbi Sadruddin Kaji (A I R 1924 Bom. 420). (b) Reverting to the above contention of Niaz Ahmed Khan, it may be observed that Mulla in section 46 of his book on the Muslim Law referred to hereinabove has pointed out the diversity in the opinion of the various Courts on the point in issue and has pointed out that Calcutta's view was that one or more Muslim legal heirs could represent the estate of a Muslim deceased. In some cases of Bombay the latter view was followed. However, in some cases Bombay High Court concurred with the view of the Allahabad High Court to the effect that one or more legal heirs cannot represent the estate of a Muslim deceased. It seems that the latter view was followed by the Chief Court of Oudh in the aforesaid cited case of Lucknow in 'which the parties were Muslims. In the above 1956, Travancore Cochin case (which is a case of Full Bench), after considering the theory of substantial representation, it has been held that under Muslim or Christian Law on the heirs cannot represent others except where he could do so on account of any custom. (c) On the other hand, in the above Karachi case, Waheeduddin, J. (as his Lordship then was) took the view that one legal heir of the deceased defendant in a money suit could represent the estate of the deceased. It may be observed that the facts of the above case were that a suit for the recovery of Rs. 23,C00, was brought against Rais Gullan Khan Magsi Baloch and Allah Bux his son and during the pendency of the suit Rais Gullan Khan died. Thereupon. the plaintiff filed an application praying therein, that as the plaintiffs were unable to ascertain the names of the legal heirs of the deceased, Allah Bux the deceased's son who was already a defendant to the suit may be treated as representing the estate of the deceased. The learned Civil Judge dismissed the suit on the ground that it abated on account of non-joinder of all the legal heirs. The judgment of the Civil Judge was maintained by an Additional District Judge, Karachi but in the second appeal both the judg ments were up set by the High Court and it was held that the deceased's estate was properly represented. The above Karachi case followed Bombay's view reflected in the above-quoted case of 1924 Born. 420, in which one of the legal heirs was brought on the record and it was held that the deceased's estate was properly represented. In the above Karachi case reliance was also placed on the cases 89 1 C 281 and A I R .1936 Mad. 336. (d) It has been urged by Mr. Niaz Ahmed that in the above Karachi judgment the effect of the Muslim Personal Law was not considered. Ill my view the above Karachi and Bombay's view is not in conflict with Muslim Law, but is not consonance with it. It may be observed that it as the religious duty of the legal heirs of a Muslim deceased to discharge the debts of the deceased out of the estate of the deceased before distributing the same among; themselves. A Court of will lean towards the enforcement of the above' religious duty. If the estate of a Muslim deceased is represented by one or more legal heirs, the decree passed if any in such suit cannot be defeated on the ground of non joinder of some of the legal heirs, particularly when the other legal heirs had acknowledge of the pendency of the suit. It may be pertinent to mention that the law Reform Ordinance, 1972 (Ordinance XII of 1972), has settled the above controversy by substituting sub-rile (3) of rule 4 of Order XXII, C. P. C. and by incorporating a new sub-rule (4) to the above rule

4. The effect of the above amendments is that non-joinder of the legal heirs of a plaintiff or a defendant is of no legal consequence. In the instant case the plaintiff bank had brought on tile record the widow of the deceased as well as one of iris sods and, therefore, it cannot be urged that the other legal heirs had no knowledge about the pendency of the above suit or that the deceased's. estate was not represented. It may again be observed that the plaintiff-decree-holder caused the attachment of the property admittedly left by the deceased. I am, therefore, inclined to follow the above Karachi and Bombay cases and hold that the objections are not sustainable and hence, the same are dismissed with no order as to costs. The execution shall proceed from the stage at which it was. K. M. A Appeal dismissed.