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Civil Petition No.l of 1977, decided on 6th June, 1984.

(On appeal from the judgment, dated 2-11-1976 of the Lahore High Court in R.S.A.No.69 of 1963).

---Art.185(3)--Appeal (civil)--Abatement--High Court holding that it was a case where there was only one joint transaction in favour of appellants by way of alleged gift and as such interests of appellants were indivisible and if appeal was to be accepted two inconsistent decrees could come into existence, and for that reason appeal had abated as a whole--Leave to appeal granted to consider contention that view of High Court was not correct and that High Court was not justified in dismissing appeal as having abated in toto but should have decided same on merits.--[Abatement].

Kh. Mushtaq Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th June, 1984.

Petitioner No.l and his brother Muhammad Din instituted a suit on 19-10-1957 against the respondents for a declaration to the effect that they were owners in possession of 69 Kanals 4 Marlas of land alongwith a residential Ihata (hereinafter referred to as the property in dispute) situated in Chak No.200/R.B., Tehsil Jaranwala, District Lyallpur (now Faisalabad). As a consequential relief, they prayed for a permanent injunction restraining the respondents from disturbing their possession. According to the averments in the plaint after the death of Ali Bakhsh, the father of Fazal Din, Petitioner No.l and his deceased brother Muhammad Din, their mother Mst. Jiwan remarried their father's elder brother Nabi Bakhsh, who, having no issue of his own, brought up the petitioners and his brother Muhammad Din, who were minors at that time, as his own sons. As a token of his love and affection for these two brothers, Nabi Bakhsh executed a Will Exh.P.4 on 7-1-1946 whereby he created a life estate of the property in dispute in favour of Mst. Jiwan to be held by her as a limited owner during her lifetime and on her death, Petitioner No.l and his brother Muhammad Din were to be its owners in equal shares. It was further alleged in the plaint that in furtherance of his intention he made an oral gift in the year 1954 in respect of the property in dispute in favour of Petitioner No.l and his brother Muhammad Din in equal shares and delivered its possession to them. In this regard, he also submitted an application, dated 9-12-1954 (Exh.P.l) to the Tehsildar, Jaranwala for entering mutation regarding the oral gift on the basis of which Mutation No.380, dated 20-1-1955 was entered but subsquently it was cancelled behind the back of the donor and the donees on the ground that the gift. had been revoked.

After the death of Nabi Bakhsh on 3-1-1956, the Revenue Officer did not act upon the Will (Exh.P.4) and instead, vide order dated 9-4-1956, divided the property in dispute in accordance with the Muslim Personal Law (Shariat) Application Act by giving 2/3rd share- in it to Respondents 2 and 3, the sisters of Nabi Bakhsh in equal shares and 2/3rd share in it equal shares to Petitioner No.1, his brother Muhammad Din and Respondent No.1, a nephew of Nabi Bakhsh.

Aggrieved by the above mutation, an appeal was filed by Petitioner No. l and his brother Muhammad Din which failed and led them to file a suit for declaration and perpetual injunction as mentioned above.

The respondents in their joint written statement admitted that Mst. Jiwan married to Nabi Bakhsh but denied the existence and the validity of the Will and the gift and pleaded that in any case the Will had been revoked by the gift. The land trial Court framed the following issues:-

(1) Whether Nabi Bakhsh deceased made any valid gift in favour of the plaintiffs. If so, to what effect

(2) Whether Nabi Bakhsh deceased made any valid Will about the plaint property in favour of the plaintiffs. If so to what effect

(3) If Issue No. l is proved, what is its effect on the Will

(4) Relief.

After appraising evidence led by the parties, the learned trial Court answered Issues Nos. 1 and 2 in the negative and held Issue No.3 as redundant on account of Issue No.l having remained unproved. The suit was consequently dismissed by the learned trial Court vide its judgment dated 15-11-1961.

The appeal of Petitioner No.l and his brother Muhammad Din was dismissed by the learned District Judge, Lyallpur (now Faisalabad) vide judgment dated 3-12-1962. Where after, they filed Regular Second Appeal (R.S.A. 69/63) before the Lahore High Court. This appeal was admitted to a full hearing and was pending final disposal in the High Court when Muhammad Din died in 1967. However, the heirs of the aforesaid Muhammad Din were not brought on the record. On the other hand, on 26-4-1975, an application (C.M.P.No.1752/C of 1975) was submitted on behalf of the respondents stating that since Muhammad Din (one of the appellants) had died in 1967 and his legal representatives had not been brought on the record so far the appeal had, therefore, abated in toto as it could not proceed in the absence of the legal representatives of the deceased-appellant.

The learned Judge of the High Court considered the said applica tion and came to the conclusion that this was a case where there was only one joint transaction in favour of the appellants by way of the alleged gift and as such the interests of the appellants were indivisible and if the appeal was to be accepted two inconsistent decrees could come into existence. He, therefore, vide his judgment dated 2-11-1976, held that the appeal had abated as a whole. The appeal, was accordingly, dismissed as having totally abated.

Hence this petition for leave to appeal.

We have heard Kh. Mushtaq Ahmad, in support of this petition, he has referred to the application of Nabi Bakhsh dated 9-12-1954 (Exh.P.l) to the Tehsildar, Jaranwala for entering mutation regarding oral gift in favour of Petitioner No.l and his brother in equal shares to show that the view of the learned Judge that the transaction was a single and indivisible one was not correct. He has also submitted that the view of the learned Judge that if the appeal was decided on merits there was a likelihood that it would result in inconsistent decrees, was not correct. In short, the learned Judge was not justified in dismissing the appeal as having abated in toto but should have decided the same on merits.

These submissions, inter alla, require further consideration. Leave is, accordingly, granted.

Security Rs.1,000.

The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any.

M. Z. M. Leave granted.

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