ALLAH BAKHSH ETC. vs GHULAM SHABBIR SHAH
The petitioners filed a suit for declaration of ownership based on an alleged verbal sale of land, which was dismissed by the trial court and the first appellate court. During the pendency of their second appeal in the High Court, one of the co-plaintiffs died. Despite an objection regarding the abatement of the appeal being raised, the petitioners failed to bring the legal representatives of the deceased on record, leading the High Court to dismiss the appeal on the ground that it had abated in toto. The Supreme Court granted leave to appeal to examine the matter. Upon review, the Court observed that the plaint claimed a joint purchase without specifying individual shares or the apportionment of consideration paid by the vendees. Consequently, the Court held that the transaction was indivisible. Applying the principle that the death of one co-purchaser in an indivisible transaction results in the total abatement of the suit, the Supreme Court upheld the High Court's decision and dismissed the petition, confirming that the appeal could not proceed.
- Does the death of a co-plaintiff in a suit involving an indivisible joint purchase result in the total abatement of the appeal?
- Can an appeal proceed when a co-appellant dies and their legal representatives are not brought on record?
ORDER
' KARAM ELAHEE CHAUHAN, J.-(i) Allah Bakhsh (petitioner No, 1) and Faiz Muhammad alias Faiz Bakhsh (petitioner No, 2) (deceased) (now represented by his legal representatives) filed a suit against Ghulam Shabbir Shah (defendant/respondent) for a declaration that they were the owners in possession of the land in dispute described more fully in their plaint on the basis of some alleged verbal sale which according to them took place in May, 1954. The suit was dimissed by the learned Civil Judge, on 7-3-1960. The first appeal of the plaintiffs/petitioners also met the same fate and was dismissed by the learned Additional District Judge on 19-12-1960.
2. The petitioners filed a second appeal being R. S. A. No, 158/1961, in the High Court. During the pendency of that appeal the co-plaintiff Faiz Muhammad alias Faiz Bakhah died somewhere in year 1967 and even though the objection on that basis regarding abatement of appeal was taken in year 1973, but no steps were taken by the petitioners to rectify the same or to bring his legal representatives on the record, with the result that the learned Single Judge of the Lahore High Court dismissed the said appeal on 20-5-1974, holding that the same has abated in toto.
3. The petitioners have come up in a petition for special leave to appeal against the same to this Court.
4. Before proceeding further it may be mentioned that we asked the learned counsel to read out the plaint before us which he did. The plaint showed that the plaintiffs claimed a joint sale in their favour without specification of any particular share and without indicating as to how much price was allegedly paid by each plaintiff. This will show that it was a joint purchase without specification of the share purchased or the apportionment of the consideration paid by the vendees. The sale in these circumstances, it is thus obvious, was indivisible and the death of a co-purchaser in these circumstances was rightly held by the High Court to have resulted in the total abatement of the suit. Reference may be made to Abdullah and 3 others v. Abdul Karim and others (1) and Ahmad and others v. Ghulam Haider (2), which no doubt pertained to cases of pre-emption, but the principle laid down therein can be applied to as situation of the kind involved herein.
5. The result is that this petition has no merit and is dismisse.
(1) P L 1968 SC 140 (2) 1972 SCM R 357