' The validity of the order dated 31-12-1964, passed by the Claims Commissioner in exercise of his revisional jurisdiction has been challenged through this writ petition. The learned Claims Commissioner held that the Compensation Book subject-matter of the gift being a mere certificate vide subsection (2) of section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, could not be gifted. According to him, a Compensation Book cannot be transferred except according to the procedure laid down in the Act itself and the Scheme framed thereunder. It may be adjusted against the price of a property either directly or through association with the transferee of a property or otherwise cash compensation can be obtained in lieu thereof.
2. The facts of the case are that the Deputy Claims Commissioner, Lyalipur (now Faisalabad) by his order dated 14-10-1959, copy Annex. 'A', verified the claims of the parties as follows :- {{TABLE}} Schedule I Rs, 973464 Schedule III Rs, 69,098 Schedule VI {{TABLE}} Rs, 1,01,983.
' The shares of the petitioner's father and respondent No, 1 were worked out as follows :- {{TABLE}} Petitioner's father Rs, 1,01,560 Respondent No, 1 Rs, 1,66,984 {{TABLE}} ' This order of the Deputy Claims Commissioner was challenged in appeal by respondent No, 1 on the ground that he was the sole owner of the property verified under Schedule 1 and item No, 1 of Schedule III. Respondent No, 1 had also prayed for enhancement of the value of the property so verified. This appeal was dismissed by the Additional Claims Commissioner by his order dated 5- 12-1959. The revision petition filed by respondent No, 1 before the learned Claims Commissioner also met the same fate and was dismissed on 31-12-1964.
3. At the time when the revision petition was disposed of petitioner's father had died. Since dispute with regard to the verification of the claim had not been settled, therefore, Elahi Bakhsh, petitioner's father gifted away his Compensation Book to the petitioner. Copy of the gift deed, dated 28-4-1960, has been placed on record. According to that, Compensation Book No, 209598/9498, Lyallpur Centre II as well C. S. Form No, 243 filed for the transfer of shop No, 130-B, Ward No, 1, Raja Chowk, Rail Bazar, Lyalipur were gifted in favour of the petitioner, Mst. Rehmat Bibi. According to the contents of the gift deed, Elahi Bakhsh divested himself of all the rights accruing to him on the basis of the aforesaid two documents and authorised the petitioner to take all the due benefits out of them.
4. It has been argued that the rights vesting in the donor in the Compensation Book being property can be gifted away. The learned counsel has relied upon sections 2 and 129 of the Transfer of Property Act as well as on Sh. Rehmat Ullah v. The Deputy Settlement Commissioner, Centre A.
Karachi and others (1) and Messrs S. Ali Bakhsh and Sons v. Additional Settlement Commissioner and another (2). It is argued that since the Compensation Book can be inherited by the legal heirs of a claimant, therefore, it can be made subject-matter of a gift under the law.
5. Section 2 of the Transfer of Property Act lays down that nothing in the Second Chapter of the Act shall be deemed to affect any rule of Muslim Law. It is argued on that basis that since choses in action or incorporeal rights can be gifted away under the Muslim Law, therefore, the provisions as contained in the Transfer of Property Act contrary to that would not be of any use, so far as the rule of Muslim Law on this point is concerned. Section 129 of the Transfer of Property Act prescribes that nothing in Chapter VII of the Act, relates to gifts of the movable property made in contemplation of death, or shall be deemed to affect any rule of Muslim Law.
6. It has been held in PLD 1963 Supreme Court that a non-claimant displaced person may base his claim for relief upon paragraph 9 of the
(1) PLD 1963 SC 633 . (2) PLD 1968 Lah. 1227 Schedule in relation to any property of which he may be in possession and his claim would be entitled to be examined on that basis, but he cannot claim any right in that property by virtue of that property being in the Compensation Pool for the simple reason that he is not included among the beneficiaries who are to receive compensation as of right out of the Compensation Pool. It has been held that law as it stands permits of a non-claimant displaced person having a right to a property in his possession by virtue, not of any right vesting in him personally, but on the strength of his being in possession subject to satisfaction of all the inquiries and requisites of the Scheme. It has been further held that it is conceivable that this right would not be superior to that of a claimant if the property was in the Compensation Pool, for claimants are vested beneficiaries qua the Compensation Pool.
' The facts of that case are that the petitioner before the. Supreme Court, a refugee from Delhi, was in occupation of a godown at Karachi. After the enforcement of the Displaced Persons (Compensation and Rehabilitation) Act, he submitted his NCH Form on 10-11-1959. He was informed by the Deputy Settlement Commissioner that his application had been rejected on the ground that the property had been acquired by the State Bank of Pakistan. The appeal and revision filed before the Settlement Authority concerned did not succeed. His main claim was that since he was in possession of the property, therefore, he had acquired a vested interest therein by virtue of his possession and as such was entitled to its transfer. The aforesaid finding was given by the Supreme Court in context of this background.
7. It was held in PLD 1968 Lah., with reference to expression "shall be entitled to receive payment . . . ." occurring in section 15(1) of the Act, that it created vested right in favour of a person whose claim stood registered under section 12. It was held that such right was not an ex gratis grant, but a person whose claim had been registered had a right to the issuance of Compensation Book. It was further held that a claimant had a vested right to receive compensation out of the Compensation Pool. Such right was created by the Statute and the Compensation Book was a mere compendious statement to be used as a handy evidence at a glance to enable the Settlement Department to discharge its obligation. It was held that in that respect it was not dissimilar from the "pass book" issued to a depositor of a Saving Book Account. The right of the depositor from his account arose from the deposit itself and not from the entries in the pass book or even the account books.
8. A contrary view was taken in Syed Abdur Rashid v. Pakistan through the Secretary, Ministry Refugees and Rehabilitation, Karachi and others and Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (2). It was held in the former report that under the Registration of Claims (Displaced Persons) Act, 1956, a claim was merely the assertion of a right to the ownership of, or to any interest in, property which had been treated as evacuee property in India or of which a displaced person had otherwise been deprived under any law in force in India. It was held that in order to constitute a claim, therefore, within the meaning of the Act it was sufficient that a displaced person should merely assert that he had a right to the ownership of, or some interest in, a property in India which had been treated as evacuee property or of which he had been deprived by some law in India. According to that report,
(1) PLD 1962 SC 42 (2) PLD 1971 SC 258 under the Act of 1956, referred to above, there was no question of the claimant being allotted any property, at all, in respect of his claim ; as stated in the statement of Objects and Reasons pre- facing the Act, it was a first step towards the framing of a Scheme similar to the one adopted unilaterally in India for allotment of the Urban immovable property in India left by the Muslims. It was held that the purpose of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was neither to grant property in lieu of the properties expropriated in India nor to limit the benefits of the Scheme to such expropriated displaced persons, but its purpose extended to the rehabilitation of others also who did not fall in the above category. It was held that that was, therefore, not a case in which a displaced person was entitled as of right to get properties in Pakistan equivalent to properties left by him in India, but it was a measure designed purely to alleviate the hardship and misery of as large number as possible of displaced persons who had been compelled, as a result of the disturbances consequent upon the setting up of two dominions of India and Pakistan, to migrate from India, by compensating them or rehabilitating them. It was further held that this was not a scheme of compensation on any quid pro quo basis, but merely grant of a privilege or a benefit. It was held that when this was a scheme for participation in which the claims were registered as a first step, then it was fallacious to conceive of a claim under the Act of 1956 as being in the nature of right or interest in the property which could devolve like property according to the personal law of the deceased. The deceased displaced person had not, up to that stage, become vested of any property ' in Pakistan which could devolve upon his heirs according to the law of . Succession prevailing in Pakistan. The properties, if any, left by him being situated in India would devolve according to the law framed in India and succession thereof could not be regulated by law made in Pakistan.
9. Similar view was taken in Mian Rafi-ud-Din's ease. It was held that there was no question of displaced persons coming to Pakistan from territories now constituting India being entitled as of right to get properties in Pakistan in lieu of properties left by them in India. The Evacuee Laws were designed purely to alleviate hardship and misery of as large number of displaced persons as possible who had been uprooted as a result of the setting up of two dominions of India and Pakistan by rehabilitating them and in that sense too it was fallacious to conceive of a claim as being in the nature of a right or interest in the property ; it was rather a question of purely granting a benefit or privilege and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit. It was held that even though mandatory words were used in some places in the Schedule and the Schemes with regard to the transfer of property, yet the transfer was in implementation of the entitlement under section 15 of the Registration of Claims (Displaced Persons) Act, 1956 and this entitlement was basically to receive payment out of the Compensation & Rent Pool in the manner prescribed by the Schedule, the Schemes and the Rules, which only gave preferential position to a claimant who came before all others and his claim had to be satisfied first. It was held that it was in this sense that it had been said that a claimant displaced person was in the position of a vested beneficiary so far as the properties in the Compensation Pool were concerned, but this was not something as saying that he had a vested right to a particluar property in the Compensation Pool for after acquisition the legal title to the property vested in the Central Government and until that was divested, no one could be said to have a vested right or title thereto. The right of a claimant was merely a general beneficial right which he shared in common with all claimants. It was held that to accept that a right became complete and accrued as soon as one elected to assert that right would, in any view, be accepting a startling proposition. It was further held that it was necessary to keep in mind that there was a distinction between the right to claim a transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who could claim transfer of a particular property, but the right to the transfer of the property accrued or became vested only after a final order for such transfer had been made in accordance with the provisions of the Act itself, the Schemes, the Rules framed under the Act and the instructions issued from time to time. Until a final order of transfer was made it could not be said that the property had been disposed of and was no longer available for transfer.
10. According to rule 3 of the Displaced Persons (Application for Compensation) Rules, 1959, a claimant was required to submit his application, in duplicate, in Form 'A' to the Deputy Settlement Commissioner of the area within such period as might be notified by the Chief Settlement Commissioner. According to rule 4 of the said rules, on receipt of such application the Deputy Settlement Commissioner concerned was to prepare a Compensation Book (in triplicate in Form B') after due verification of the entries made in Form 'A'. Rule 5 provided that copy of the Compensation Book issued to a claimant was to be produced by him before the Settlement Authority concerned whenever he obtained compensation in any form for making entries therein in the aproptiate places. Rule 7 of the said rules provided that a claimant in possession of a house or shop, which he desired to retain under paragraph 8 of the Schedule to the Act, would apply to the Deputy Settlement Commissioner of the area in which the property was situated.
' According to section 2(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, "claim" has the meaning assigned to it under the Registration of Claims (Displaced Persons) Act, 1956. According to that definition as provided in subsection (3) of section 2 of the Act of 1956, "claim" means assertion of a right to the ownership of, or interest in, property which has been treated as evacuee property or of which a displaced person has otherwise been deprived under any law for the time being in force in India. "Claimant" was defined in section 2(2) of he Displaced Persons (Compensation and Rehabilitation) Act, 1958 as a displaced person whose claim had been registered under the Act of 1956. The Chief Settlement Commissioner was authorised to invite applications for the payment of compensation under the Act from such claimants as specified in the notification. Under section 12 of the Act of 1958, the authority concerned was authorised to ascertain the amount of compensation to which the applicant was entitled separately under the Compensation Pool and the Rent Pool, having due regard to the prescribed scales of compensation, the nature and value of his verified claim and other circumstances of the case.
Under subsection (2) of section 12, the aforesaid authority was competent to determine the net amount payable to the applicant from the Compensation Pool and from the Rent Pool after deducting the public dues recoverable from him and thereafter "certificate" was liable to be issued to the applicant to that effect in the prescribed Form.
11. The above discussion would show that filing of claim by a displaced person, who owned some property in India, amounted only to an assertion of a right to the ownership of, or any interest in, the said property which had been treated as evacuee property. After the verification of that claim, a Compensation Book in the form of a certificate, as defined in section 12(2) of the Act of 1958 was to be issued to a claimant displaced person, who on the basis of that was entitled to submit his application under rule 7 of the Displaced Persons (Application for Compensation) Rules, 1959, for the transfer of the evacuee property in his possession. He was also entitled to make application for the compensation in cash on the basis of the Compensation Book issued in his favour. However, that does not mean, as held in PLD 1962 SC and PLD 1971 SC, referred to above, that claimant has a vested right to the transfer of a particular property in the Compensation Pool, as after acquisition of such property under the relevant provision of law, the legal title to the property vests in the Central Government and until that is divested, no one can be said to have a vested right or title thereto.
12. In the present case it is admitted that only Compensation Book had been issued in favour of father of the petitioner, who had neither received any compensation on the basis thereof in cash nor got transferred any property in lieu thereof. It means that at the time of his death no property in tangible or definite form vested in him. He asserted his right to the ownership of a particular property left in India by filing his claim form, which was duly verified up to the level of the Claims Commissioner.
13. "Hiba" (gift) has been defined in Muhammadan Law by Syed Ameer Ali, 1976 Edition, Vol. 1 ; Principles of Muhammadan Law by D. F. Mulla, 1975 Edition and Hedaya by Hamilton, to mean transfer of the right of property in the substance (Tamliq-ul-Ain) by one person to another without B consideration. It is a voluntary gift without consideration of property o the substance of a thing by one person to another so as to constitute th donee, the proprietor of the subject matter of the gift. It requires three conditions to be fulfilled in order to make the gift valid:-
(a) a manifestation of the wish to give on the part of the donor ; (b), he acceptance of the donee either impliedly or expressly ; and
(c) the taking, possession of the subject-matter of the gift by the donee either actually or constructively.
' It amounts to conferring of right of property in same thing specific without an exchange. A "Hiba"
(gift) pure and simple, is the voluntary transfer, without consideration of some specific property whether existing in substance or as a chose in action. It has been defined by Ibni Kamal (Author of Fath-ul-Kadir ) as an immediate conferment of the right of property. As mentioned by Syed Ameer Ali in his famous book referred to above Shiah Jurists also declared it to be an obligation by which the property in a specific object is transferred immediately and unconditionally. According to Syed Ameer Ali anything over which dominion or the right of property may be exercised or anything which can be reduced into possession or which exists as a specific entity or as an enforeable right, or anything, in fact, which comes within the meaning of the word `mar may form the subject of gift.
According to him choses in action and incorporeal rights may form the subject of gift equally with corporeal property. According to Kifaya a debt is considered with reference to the prospect of payment in 'mar or corporeal property. If the property is in the hands of somebody else, who is claiming to hold direct possession of it by some title either derived from or independently of the donor, gift in respect of that property would not be valid and in neither of the cases possession is with the donor which can be transferred by him explicity or impliedly. According to Hedaya if the property is in the hands of donor or in the hands of his depository from whom he can resume possession at any time its gift would be valid. Where a person has a subsisting recurring right in something which is neither variable nor uncertain, gift of such right can be made validly. An assignment of the ascertained rents of any particular property movable or immovable may validly be effected. A gift of a share in the partnership stock capable of division is invalid because of the invalidity of the gift of an undefined part of a divisible subject. As mentioned above, subject of gift should be specific and certain.
14. According to Transfer of Property Act gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person to another.
According to para :;144 of Mohammadan Law by Mulla (1975 Edition) gift may be made of debts, negotiable instruments, or of Government promissory notes of Malikana or of zamindari rights of property let on lease or under attachment. A gift may also be made of a right to receive a specified share in the offerings that may be made by pilgrims at a shrine and also an insurance policy. A gift can be mad of anything which comes within the definition of the word 'mar i. e., property.
15. The above discussion would show that the Compensation Book in question cannot be considered to be a corporeal property. At the time of its gift ownership rights in no immovable property vested in the donor nor any such property has been made subject-matter of the gift. It has been argued that the Compensation Book involves incorporeal rights or chose in action which has been gifted to the petitioner. Choses in action' as defined in Wharton's Law Lexicon, 14th Edition, page 190, is a thing of which a man has not the possession or actual enjoyment, but has a right to demand by action or other proceeding, as a debt, bond etc. According to Stroud's Judicial Dictionary, Vol. I, 1952 Edition, a chose in action implies the existence of some person entitled to rights which are rights in action as distinct from rights in possession. According to Stroud a share in a company is not a chose in action until it is issued and a person entitled to such rights exists.
Incorporeal rights have been defined in Wharton's Law Lexicon at page 471. They are such rights which are not tangible and are the rights and profits annexed to or issuing out of land. It includes money held in trust to be laid out in land. Incorporeal rights, according to the author, are such as rents, services etc. And generally denote the subject of property, apart from its nature and extent.
They are inheritable rights relating to specific property or something issuing therefrom or exercisable therein. Incorporeal right has also been defined by Stroud in his Judicial Dictionary as a right issuing out of a thing corporate, whether real or personal or concerning or annexed to, or exercisable within the same. It is not the thing corporate itself which may consist in lands, houses, jewels or the like, but something collateral thereto as rent issuing out of those lands and houses.
16.It means that a chose in action or incorporeal right relates to something tangible or specific. A person who is not in actual possession or enjoyment of property can demand its possession through legal action or proceeding. Such right to demand possession of a tangible or specific thing can be gifted according to law. Similarly, incorporeal rights which themselves are not tangible but are annexed to or arise out out of a tangible and specific property can be made subject-matter of gift.. Such position does not obtain in the case of Compensation Book. It relates to a claim submitted by a displaced person in lieu of his property left in India. It contains verification of such claim in terms of value of the said property. There is no doubt, as held in 1971 Supreme Court, that a displaced person on the basis of his Compensation Book can claim transfer of property in the Compensation Pool vesting in the Central Government on the basis of certain mandatory provisions in the Act, the Scheme and the Rules framed thereunder, but he has no vested right is the transfer of the property. This delicate distinction between these two aspects has to be appreciated while deciding the point involved in this case. The Compensation Book gives entitlement to a displaced person to claim transfer of property under various mandatory provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Schemes and the Rules framed thereunder, but the fact remains that the said property at the time of submission of Form A and even at the time of issue of Compensation Book, after due verification of the claim, vests in the Central Government being in the Compensation Pool. The Compensation Book holder has no control or dominion over the said property. He can claim transfer of the said property under the law, but having no dominion or control over the same has no vested right in its transfer, as held by the Supreme Court. In this view of the matter the principles involved in a chose of action or in an incorporeal right would not be attracted in the case of a Compensation Book, which does not relate to anything tangible or specific. A property in the Compensation Pool which a Compensation Book holder claims to be transferred in his favour, may or may not be transferred to him after scrutiny of his claim.
17. As a result of the above discussion, it is held that the Compensation Book in question cannot be made subject matter of gift as held by the Settlement Commissioner in his impugned order dated 31-12-1964. The writ petition having no force is hereby dismissed. The parties are, however, left to bear their own costs in view of the difficult question of law being involved in the case.