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Civil Regular Second Appeal No. 449 of 1954, decided on 15th January 1958, from the decree of the Court of Ch Muhammad Din, District Judge, Gujranwala, dated the 2nd October 1954.

S.5‑Abatement of appeal ‑Belated application‑Appellant filing application for setting aside abatement one year after knowledge of death of one of respondents‑Abatement not to be set aside‑Civil Procedure Code (V of 1908), Order XXII, r. 9.

Order XXII, rr. 4 & 11‑Death of one of respondents‑Legal representatives of deceased not brought on record within time‑Appeal abates if right to proceed with appeal does not survive against surviving respondents.

O. XXII, r. 2-- Appeal arising out of suit for declaration that mortgage of occupancy rights effected by widow would not affect reversionary rights of reversioners after remarriage or death of widow pending in High Court‑Widow not necessary party, but only proper party‑Death of widow during pendency of appeal‑Appeal does not abate.

United Provinces v. Mst, Atiqa Begum and others A I R 1941 F C 16; Thakar Hari Ram v. Central Government through Secretary Commerce Department Delhi A I R. 1941 Lah. 120 ; Poonam Chand v. Motilal A I R 1954 Raj. 287 and Muhammad Amin v. Khammisa and another P L D 1956 Lah. 242 ref.

S. 59‑Muslim widow holding occupancy rights can alienate such rights.

Dr. Mir Haider and others v. Muhammad Ali 14 P R 1911 (Civil) ref.

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Not being purely legal‑Cannot be allowed to be raised in appeal.

Said Akbar Khan for Appellant.

Maqbool Ahmad for Respondents 1 & 2.

Dates of hearing: 9th December 1957 and 6th January 1958.

This second appeal arises out of a suit brought by Abdul Aziz and Kulsum Akhtar respondents for a declaration that the mortgage of the occupancy rights in respect of 44 kanals and 6 marlas of land detailed in the plaint, effected by Mst. Hussain Bibi, defendant in favour of Muhammad Khan defendant‑appellant for Rs. 2,000, by means of mortgage‑deed, dated the 12th of December 1952, shall have no effect on their reversionary rights after the death or remarriage of Mst. Hussain Bibi. In the plaint, it was alleged that the plaintiffs were the reversioners of the husband of Mst. Hussain Bibi and were entitled to inherit the property on her death or remarriage and that they were governed by customary law. They further alleged that the mortgage being without consideration and necessity was not binding on them and that it was in direct contravention of subsection (3) of section 59 of the Punjab Tenancy Act. The suit was resisted by the defendant‑appellant, who denied the allegations made by the plaintiffs, and pleaded inter alia that they were not the reversioners of the husband of Mst. Hussain Bibi and that she was fully entitled to dispose of the property and that the mortgage was for consideration and necessity. On the pleadings of the parties, the following issues were framed by the trial Court:‑

(1) Whether Mst. Kulsum has also got a locus standi to sue If not what is its effect

(2) Whether the other plaintiff Abdul Aziz is estopped by his own conduct from bringing the suit

(3) Whether the land in dispute is ancestral qua the plaintiffs

(4) If not, whether it is necessary to prove that this land is ancestral qua him

(5) Whether Mst. Hussain Bibi succeeded to Hayat as occupancy tenant of the land in dispute

(6) Whether the parties were governed by custom before coming into force of the Shariat Act If not; what is its effect

(7) Whether the alienation was for consideration and necessity

(8) Relief

2. The learned Senior Civil judge gave his findings only on issues Nos. 2, 5 and 6. He held that the plaintiffs were not estopped from challenging the alienation and that Mst. Hussain Bibi had succeeded to his son Hayat as occupancy tenant of the land in dispute. He further held that the parties were not governed by custom, but as the mortgage was effected in contravention of subsection (3) of section 59 of the Punjab Tenancy Act, it was void and was not binding on the plaintiffs who were the reversioners of the husband of Mst. Hussain Bibi. He accordingly decreed the suit with costs. Muhammad Khan defendant went up in appeal before the District judge, who affirmed the findings of the lower Court and dismissed the appeal. Muhammad Khan has now come up in second appeal before this Court.

3. The learned counsel for the plaintiffs‑respondents raised a preliminary objection that the appeal has abated. . To appreciate this point, it may be mentioned that Mst. Hussain Bibi, who was one of the respondents in this appeal, had died on the 14th of May 1956. Muhammad Khan appellant put in an application on the 13th of May 1957, under Order XXII, rule 4 and section 151, Civil P. C., wherein he stated that Mst. Hussain Bibi being a mortgagor was not a. necessary party to the suit and consequently it was not necessary to implead her legal representatives. It was also stated that the plaintiffs who claimed to be the heirs of the deceased were party to the appeal and, therefore the appeal could not abate. In the alternative it was alleged that the appellant had no information about the death of Hussain Bibi, and had therefore, sufficient cause for not presenting the application earlier. He prayed that the appeal may be proceeded with in the absence of the legal representatives of Mst. Hussain Bibi but in case the Court held that the appeal had abated, then the abatement be set aside and the legal representatives of the deceased mentioned in para. 5 of the application may be brought on the record. This application was hotly contested by the counsel for the plaintiffs respondents. It was urged by him that the application had been made long after the period of limitation had expired. Article 177 of Schedule I of the Limitation Act covers such an application which prescribes 90 days for filing an application from the date of the death of the deceased defendant or respondent. It appears from the record that the clerk to Raja Said Akbar Khan, Advocate, who is the counsel for the appellant, had been informed by the office of the High Court on the 19th of June 1956, that Mst. Husain Bibi had died, yet the appellant had slept over the matter for about a year. In these circumstances, if the appeal has otherwise abated then I am not prepared to extend the benefit of section 5 of the Limitation Act, to such a belated application.

4. The question, therefore, which requires 'determination is whether the appeal has really abated. Order XXII, rule 4, Civil P. C. which deals with the question of abatement provides as follows:

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, or 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."

Rule 11 of Order XXII reads as follows:

"In the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word suit an appeal."

Reading rule 4 in the light of rule 11, it becomes clear that the appeal abates against the deceased respondent in case the right to proceed with the appeal does not survive against the surviving respondents alone. But where the right to proceed with the appeal survives against the surviving respondents) then the case is governed by Order XXII, rule 2, Civil P. C.I which prescribes that in such circumstances the appeal shall be proceeded with against the surviving respondents. It is, therefore necessary to determine if the appeal could be proceeded with against the remaining respondents in the absence of the legal representatives of Mst. Hussain Bibi. Learned counsel for the appellant contended that she was not a necessary party to the suit. The plaintiffs had no doubt impleaded her as one of the defendants, but no relief had been claimed against her. Their object was to secure a declaration that on the termination of the interest of Mst. Hussain Bibi, the mortgage would have no effect on their reversionary rights. The only person to be effected by the declaration sought for by the plaintiffs is Muhammad Khan appellant and no one else. It is true that her right to mortgage the property in suit has been challenged by the plaintiffs but the only person to be affected by the decision of the suit is Muhammad Khan mortgagee and not Mst. Hussain Bibi. She may have been a proper party, but in my opinion, she was not a necessary party. The distinction between a necessary and a proper party is well recognised. Order I, rule 10, Civil P. C., brings out the distinction very clearly, which inter aha provides that a person may be added as a party to the suit in the following two cases :‑

(1) When he ought to have been joined as plaintiff or defendant, or

(2) When his presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

In the first case, he is a necessary party, because his presence is enjoined by law, and in whose absence the Court would not be able to give an effective decision at all, but in the other case the party is only a proper party, whose presence is not essential, but whom it may nevertheless be desirable or even necessary to have before the Court. The distinction between "necessary" and "proper" party was explained in Thakar Hari Ram v. Central Government through Secretary Commerce Department Delhi (A I R 1941 Lah, 120), where it was held by a Division Bench of the Lahore High Court as follows:

"A 'necessary' party is one, whose presence on the record is enjoined by law, or in whose absence no effective decision can at all be' given. Without such party the action, appeal or proceeding is not properly constituted and is liable to be dismissed on this ground, alone A 'proper' party on the other hand, is one whose presence is not essential for the constitution of the suit, appeal or proceed ing, but whom" it may nevertheless be desirable, or even necessary, to have before the Court in order to properly, or completely and adequately, adjudicate on the matter involved. As observed in Pomeroy on Remedies (section 330) necessary parties defendants are those without whom no decree at all can be rendered: proper parties defendants are those whose presence renders the decree more effectual and all the proper parties are those by whose presence the decree becomes a complete determination of all the questions which can arise, and of all the rights which are connected with the subject‑matter of the controversy,

It is the duty of the person, bringing the action appeal or proceeding to implead all 'necessary parties to it and his omission to do so is a fatal defect, which if not remedied, with the permission of the Court within the period pre scribed by law, results in its dismissal. No such duty however is cast on him in the case of a 'proper' party nor does the absence of such a person from record entail any such serious consequences."

In United Provinces v. Mst. Atiqa Begum and others (A I R 1941 F C 16), Mr. Justice Suleman of the Federal Court of the pre‑Partition India referred to this distinction at page 28 in the following words:‑

"A person would be a necessary party if he ought to have been joined, that is to say in whose absence, no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary effectual or complete adjudication."

''It is, therefore, clear that the distinction between neces sary" and, a "proper" party is a real one. The test for finding out of Mst. Hussain Bibi in the present case was a necessary party to the appeal is whether m her absence no effective decree could be passed at all. Learned counsel for the plaintiff‑respondents argued that in her absence no effective decree could be passed by this Court and in support of his contention he placed reliance on Poonam Chand v. Motilal (A I R 1954 Raj. 287), where it was held by a Division Bench of the Rajasthan High Court that the alienor in the circumstances of that case was a necessary party. In that case the plaintiff had alleged that he and Motilal deceased respondent were descendants of a common ancestor and that there had been a partition in the family and the property in dispute had fallen to the share of the plaintiffs' branch and that Motilal had no authority to sell this property to Gulab Das respondent's father and grand father. One Dandas had a decree outstanding against Gulabdas and in that decree the property had been put to sale and purchased by Dandas respondent. During the pendency of the appeal Motilal respondent had died and two of his three minor sons were brought on the record as his legal representatives. The question arose whether the appeal had abated in view of the fact that the third son of Motilal had not been brought on the record. The appellant had contended that Motilal was not a necessary party and while dealing with this point the learned judges had observed as follows:‑

"In these circumstances, it is true that Motilal was not very interested in this litigation and that is why he, did not appear to contest it; but that does not mean that he was not a necessary party to the suit. The foundation of Gulabdas's ownership to the property was the sale‑deed by Motilal and his sister‑in‑law in favour of Gulabdas's father and grandfather. It is that foundation which is being attacked by the plaintiff, and in the circumstances, we are of opinion that Motilal was a necessary party to the suit. The array of parties would not have been complete without him and it is really his right to the property which is under dispute. Motilal, therefore, cannot be called a pro forma defendant. He appears to us to be a necessary party, and therefore, his representatives also are necessary parties to the suit and must be brought on the record."

The only ground given by the learned judges for holding that Motilal was a necessary party was that it was really his right to the property which was under dispute. If I may say so with respect the distinction between a neces sary and a proper party was not considered by the learned Judges, otherwise they would have reached a different con clusion. It appears that the learned judges had not applied their mind to the question whether an effective decree could have been passed or not in the absence of Motilal. With all respect to the learned Judges, I find myself unable to accept their view. In my opinion, Motilal was undoubtedly a proper party but was not a necessary party. In the present case also, I am of the view that Mst. Hussain Bibi: was not a necessary party to the suit, although she was a proper party. The Court could have passed an effective decree even in her absence. I am fortified in this view by a decision of this Court in Muhammad Amin v. Khammisa and another (P L D 1956 Lah. 242), where Kaikaus, J., while dealing with a similar question, observed in the course of the judgment as follows:‑

"In cases where a male alienates any property and the revesioner files a suit challenging the alienation the alienor is not a necessary party and if impleaded is only a pro forma defendant."

Mst. Hussain Bibi was alive at the time when this appeal was filed and she had been impleaded as a pro forma respondent. Muhammad Khan had filed this appeal to get the decree set aside which had been passed in favour of the plaintiffs respondents. He sought no relief against Mst. Hussain Bibi. In terms of sub‑rule 3 of rule 4 of Order XXII, Civil P. C., this appeal, therefore, could have abated only against Mst. Hussain Bibi. But in my opinion, on the death of Mst. Hussain Bibi respondent the right to proceed with the appeal survived against the remaining respondents. The case is, therefore, more appropriately covered by Order XXII, rule 2, Civil P. C. I accordingly hold that the appeal has not abated. I, therefore, direct in terms of Order XXII, rule 2, Civil P. C., that an entry be made on the record that Mst. Hussain Bibi respondent is dead and the right to proceed with the appeal survives against the remaining respondents. In the circumstances of the case, it is not necessary to bring her legal representatives on the record.

5. In passing I would like to note that the plaintiffs' suit is in a representative capacity and they are as much legal representatives of Mst. Hussain Bibi as any of her other heirs would be and as such the estate of Mst. Hussain Bibi can be said to be well represented. However, in view of my finding that the appeal had not abated it is not necessary to give any decision on this aspect of the matter.

6. As regards the merits of the case, it was strenu ously argued by the learned counsel for the appellant that the Courts below have decided the case on the basis of section 59 of the Tenancy Act as it existed before 1951, and have completely ignored the new section which had been substituted by the Punjab Tenancy (Amend ment) Act IV of 1951. Here it seems desirable to place the two sections in juxtaposition, to find out its effect on the merits of the case:‑

It will thus be seen from a comparison of the two sections, that subsection (1) of the new section which is altogether a new addition now governs succession to the right of occupancy on the death of Muslim tenants, and subsection (2) is applicable to non‑Muslim occupancy tenants whereas before 1951, both Muslim and non‑Muslim occupancy tenants were governed by subsection (1) of the old section. Subsections (3), (4) and (5) of the new section correspond to subsections (2), (3) and (4) of the old section, but in subsection (4) of the new section which corresponds to subsection (3) of the old section, a complete change has been brought about by adding the words "subsection 2" after the words "to a right of occupancy", occurring in sub section (3) of the old section. It is, therefore, clear that after Act IV of 1951, came into force on the 20th of January 1951, the restrictions placed on the rights of the widows to transfer the rights of occupancy by sale, gift or mortgage, etc., mentioned in subsection (3) of the old section, were completely removed in the case of Muslim widows, although these restrictions continued as before in the case of non‑Muslim widows as provided by subsection (4) of the new section. Subsection (4) of the new section is applicable only if the widow has succeeded under subsection (2) of the new section which, undoubtedly deals with the case of non‑Muslim tenants. I have, therefore, not been able to understand, how the Courts below applied subsection (3) of the old section to the facts of the present case. The mortgage was effected by Mst. Hussain Bibi on the 12th of December 1952, long after the new section had come into force. There is nothing in the Act to show that Muslim widows who had succeeded to the rights of occupancy before 1951, were to be governed by subsection (3) of the old section. In the absence of any clause to that effect in the new section, it is legitimate to presume that the legislature had intended to remove all restrictions on the rights of Muslim widows, which were imposed upon them before 1951. In my opinion, the Courts below have, therefore, erred in holding that the mortgage was void. Subsection (3) of the old section which was held to have been contravened had in fact ceased to exist long before, and was inapplicable to the facts of the instant case. That was the sole ground on the basis of which the suit of the plaintiffs‑respondents had been decreed. For the reasons stated above, the decrees passed by the lower Courts in favour of the plaintiffs‑respondents cannot, there fore be allowed to stand.

7. Learned counsel for the plaintiffs‑respondents, how ever, contended that being a widow, Mst. Hussain Bibi had only a limited interest, and she could not have mortgaged her rights of occupancy, without consideration and legal necessity. But it was held by the trial Court that the plaintiffs and the husband of Mst. Hussain Bibi were not governed by custom and before me the learned counsel for the plaintiffs was unable to challenge this finding. He, however, stressed the point that even though they were not governed by custom, yet in view of the fact that the widow had taken over the whole of her husband's estate, a natural presumption arises, that she had done so as life‑holder only, subject to control by the reversioners. In support of his contention he relied upon Dr. Mir Haider and others v. Muhammad Ali ((1) 14 P R 1911 (Civil)), where it was held by Johnstone, J, that in the case of non‑agricultural Sayads residing in Sialkot City, where widows took over the entire estates, of their husbands in defiance of Muhammadan Law, a presumption arose in favour of custom under which alienations by a widow could be contested by her husband's reversioners. The facts of that case are distinguishable from the facts of the present case. In that case there was evidence that in a number of cases the widows had taken over the entire estates of their husbands in defiance of Muhammadan Law. In the present case, however, there is nothing to indicate under what cir cumstances Mst. Hussain Bibi had come into possession of the property in dispute. It is clear from the evidence on record that her son. Hayat, had died about 40 years before the present litigation. Before 1939, a widowed mother could not have succeeded to the occupancy rights at all under section 59 of the Punjab Tenancy Act. It was not disputed that since 1882, when the Punjab Tenancy Act came into force, succession to occupancy rights was governed by statutory law as provided by section 59 of the Act and not by custom. It was only in 1939 that a widowed mother was given the right to succeed under the provisions of the Punjab Tenancy (Amendment) Act IX of 1939. Before that she had no right to succeed to the occupancy rights of his deceased son. Copy of the jamabandi for the year 1911‑1912, shows that Mst. Hussain Bibi was entered in occupation of the land in dispute as an occupancy tenant and was described as mother of Hayat. Under the statutory law, she could not have succeeded as mother of her deceased son. Beyond this there is no indication on the record in what capacity he had succeeded to this property. Her husband was an Alim and probably was the Imam of the village mosque and it may be that for the services rendered by her husband, she was allowed by the landlords to continue in possession of the property, although in fact the occupancy rights had become extinct on the death of her son under section 59 of the Tenancy Act. The contention of the learned counsel for the plaintiffs‑respondents that her power of transfer was subject to the control of the reversioners has, therefore, no substance in it. The position, of course, would have been different, if she had been governed by custom.

8. It was also urged by the learned counsel for the plaintiffs that in fact the tenancy was a joint tenancy of the plaintiffs and Mst. Hussain Bibi, and she could not have mortgaged her rights without the consent of her co‑tenants. However, it appears from the record that the plaintiffs had not based their claim on this ground. In fact, this point which is not purely a legal point was never agitated before the lower Courts. It is altogether a new point, and is intended to change the very basis of the suit. Under the circumstances, I did not permit the learned counsel for the plaintiffs to argue this point.

9. For the foregoing reasons I accept this appeal, and setting aside the judgments and decrees passed by the lower Courts in favour of the plaintiffs‑respondents, I dismiss the plaintiff's suit with costs throughout.

K. M. A. Appeal accented.

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