MUHAMMAD ASLAM Versus HAKAM BIBI

This petition has been filed to challenge an order dated 20th October 1970, passed by Ch. Anwar Ali, Civil Judge Ist Class, Wazirabad, dismissing the petitioners' application for impleading respondent No. 5 as a defendant in the suit.

2. The facts are that the property in. dispute which is the subject-matter of the pre-emption suit was purchased by Muhammad Saeed vendor on 17th September, 1968. The present suit for pre-emption was filed by the petitioner on the 17th September, 1969, after the death of the vendee He impleaded respondents Nos. I to 4 as defendants since they are admittedly the legal representatives of Muhammad Saeed. It may be stated that Mst. Hakam Bibi is widow, Mst. Aisha Siddiqua is daughter, Ch. Muhammad Sharif is brother and Mst. Chiragh Bibi is sister of Muhammad Saeed.

3. On the 5th January, 1970, a written-statement was filed by the defendants in which they took an objection that Mst. Iqbal Begum another sister of Muhammad Saeed, who was a necessary party, had not been impleaded. It was in these circumstances that an application was submitted under Order I, rule 10, C. P. C. on the 10th January, 1970, for impleading Mst. Iqbal Begum.

4. The petitioners case is that they came to know about the existence of Mst. Iqbal Begum only from the written-statement. It was disputed by them that she was at all a necessary party.

5. The learned trial Court dismissed the application on the ground that the petitioners themselves considered Mst. Iqbal Begum to be unnecessary party. In these circumstances it would not be necessary to implead her. Its was further held that she might be a proper party according to the plaintiffs' version but it was of no use to probe into that matter since it is not necessary to implead a proper party in the suit.

6. The learned counsel for the petitioners has taken exception to the judgment on the ground that Mst. Iqbal Begum, even as a proper party, ought to have been impleaded. He explained that Mst. Iqbal Begum had relinquished her right in favour of the other legal representatives and as such she has ceased to be a necessary party.

7. I agree with the finding of the learned trial Court that in the circumstances of this case, if Mst. Iqbal Begum is merely a proper party it would not be necessary to implead her as a legal representative of Muhammad Saeed. I do not, however, agree with the finding that since the petitioners themselves do not dub her as a necessary party, she should not be treated to be such a party. Under the Islamic Law there being no son, brother and sister can take the balance of the property as residuaries. In these circumstances, it cannot be said that Mst. Iqbal Begum was not a necessary party. The admission of the plaintiffs on this score would not nullify the legal position. The learned trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction to that extent.

8. But it would be of no benefit to the petitioners since there is another impassable hurdle in their way. The suit against Mst. Iqbal Begum was barred by time on the 10th January, 1970. In these circumstances, it would e be of no use to implead her as a party to the suit. The revision petition is, therefore, dismissed on this ground without any order as to costs.

Appeal dismissed.