' This suit has been filed for the recovery of Rs, 2,20,000 from the defendant No, 1 which is alleged to be the sale price of the property in the suit, which according to the plaint the defendant was holding as a Benamidar for die Ghulam Hussain Maneck Dhanji, the father of the plaintiffs Nos. I to
7. A further relief for account to be furnished by the said defendant No, 1 for monies realized and profits earned by her for the period the property remained with her is also sought. Both these reliefs are contested by the defendant No, I. She asserts that she is the owner of the property and the plaintiffs have no right or interest in the property which is a 10% share in the Regal Syndicate situated in Saddar Karachi.
2. The parties are Khojas originally belonging to a prosperous family of Bombay. After partition of India the family broke up and dispersed to the various parts of the sub-continent, some remaining in India and others migrating to the Pakistan. Plaintiffs Nos. 1 to 7 are sons and daughters and plaintiff No, 8 is the wife of Ghulam Husain Maneck Dhanji. Defendants Nos. 1 to '3 are sons and daughters and defendant No, 4 is the wife of Wali Muhammad Dhanji who was the brother of Ghulam Hussain Maneck Dhanji. Ghulam Hussain Maneck Dhanji and Wali Muhammad Dhanji, it is alleged by the defendant were carrying on business in Bombay.
3. The case has peculiar features of its own. But before I venture to analyse the real controversy I briefly reproduce the facts as set out in the pleading of the parties.
4. The plaint is a very lengthy document spread over about 15 pages. But the gist of averments contained therein reveals that "in pursuance of his desire to invest money in Pakistan" Ghulam Hussain Maneck Dhanji joined a partnership firm called Regal Syndicate by contributing a sum of Rs, 80,000 in the assets of partnership. This investment was made by him in the name of four persons in equal shares of Rs, 20,000 each in the following manner and in the following proportion :-
(1) Plaintiff No, 1 Muhammad All son of Ghulam Hussain Rs, 20,000 equal to 5% share capital.
(2) Plaintiff No, 8 Jeeno Bai wife of Ghulam Hussain Maneck Dhanji Rs, 20,000 equal to 5% share in the capital of the partnership.
(3) Defendant No, 3, Ahmad Ali son of Wali Muhammad Dhanji Rs, 20,000 equal to 5% share of the capital of the firm.
(4) Defendant No, 4 Khadija Bai wife of Wall Muhammad Dhanji Rs, 20,000 equal to 5% of the capital.
5. A copy of the partnership deed has been produced showing the four names of these four persons and also of the other partners of the partnership. It is dated 28-2-1948 and is Exh. 9/2.
6. It is alleged that these four persons were Benamidars and had only lent their names for being shown as partners in this firm. The real owner was the said Ghulam Hussain Maneck Dhanji.
' Foy; mouths later Ghulam Hussain Maneck Dhanji desired a change.
' The four shares of Rs, 20,000 each held by the aforesaid Benamidars are, on the direction of Ghulam Hussain Maneck Dhanji, transferred to defendant No, I who is the daughter of Wali Muhammad Dhanji. The reason for this change is stated to be that defendant No, I was by that time the only close relation in the family who was living in Pakistan. None of the plaintiffs had left India by that time. This was the time when the Evacuee Laws were shortly expected to be enacted in India. According to the plaint a further change was brought about. It is stated in para. 14 that some time in the beginning of the year 1950 the said Ghulam Hussain Maneck Dhanji desired to split up holding in the hands of defendant No,
1. Under this change half of his share in the said firm was to continue to remain in the name of defendant No, 1 as aforesaid and the other half was to be ostensibly transferred in the name of defendant No,
2. It is proper to quote paras. 14, 15 and 16 of the plaint in extenso to reproduce the story in the words of the plaintiffs themselves.
"(14) Thereafter, in the beginning of the year 1950, the said Ghulam Hussain Maneck Dhanji desired that half 'of his share in the business and properties of the said firm should continue to stand in the name of the defendant No, I as aforesaid and other half of his said share should be ostensibly transferred in the name of the defendant No, 2 (who had also been residing in Pakistan) eversince its establishment Benamidar and/or agent and/or trustee of the said Ghulam Hussain Maneck Dhanji as aforesaid and accordingly required the defendant No, 1 to make an ostensible and apparent gift of the half of his share in the business and properties of the said firm (standing in the name of defendant No, 11 in favour of the defendant No, 2 to hold the same as Benamidar and/or agent and/or trustee of the said Ghulam Hussain Maneck Dhanji as aforesaid.
(15) Accordingly, the defendant No, 1 made an ostensible and apparent gift 10% share in the business and properties of the said firm (out of the 20% share standing in her name) in favour of the defendant No, 2 to hold the same as Benamidar and/or agent and/or trustee of the said Ghulam Hussain Maneck Dhanji as aforesaid and thereafter 10% share in the business and properties of the said firm was held by defendant No, 1 and 10% share was held by defendant No, 2 as . Benamidars and/or agents and/or trustees of the said Ghulam Hussain Maneck Dhanji as aforesaid.
(16) From February, 1948 to early 1950 the entire 20%.Of the profits of the said business on account of the share of the said Ghulam Hussain Maneck Dhanji therein were received and held wholly by the defendant No, 1 and thereafter she received and held 10% of the said profits was received and held by the defendant No,
2. Neither the defendant No, 1 nor the Defendant No, 2 however, paid any amount out of such profits either to the said Ghulam Hussain Maneck Dhanji or to his heirs the plaintiffs.
7. The plaintiffs who it appears were already restless, but had so abstained from taking any concrete steps for recovery of their claims pressed their demands for the reimbursement of the sale price to them. Paragraphs 20 and 21 of the plaint reveal what happened thereafter :-
(20) In so far as the defendant No, 2 is concerned, she admits that the 10% share held by her in the business and properties of the said firm really belonged to the said ehulam Hussain Maneck Dhanji and the election of the returned candidate to be void if he is satisfied that the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Chairman or. Vice-Chairman and has submitted that the two provisions read together make the question of qualification of a candidate as regards his age fall within the exclusive jurisdiction of the Election Tribunal and section 17(2) of the Ordinance (which lays down that in spite of subsection (I) of section 17 the Election Authority will have no power to enquire into any matter or pass an order in respect of anything relating to election which shall be called in question before the Election Tribunal by an election petition under this Ordinance) excluded the disputes as regards age, qualification from the jurisdiction of Punjab Local Council Election Authority and as such the impugned order of the said Election Authority was of no legal effect as having been passed without lawful authority.
7. We have considered the question raised by the learned counsel for the petitioner but the said question appears to have already been decided by the highest Court of the realm conclusively and finally; Their Lordships of the Supreme Court in case of The Punjab Local Councils Election Authority Lahore v. Malik Muhammad Aslam and another (1) held pat it is only postelection disputes which bad been excluded from the jurisdiction of the Election Authority under section 17(2) and no ogler. The election in the present case had been held on 5-10-1983, The said Election Authority had decided the matter on 24-9-1983. Obviously, therefore, the Election Authority had the jurisdiction to decide the question whether the petitioner had the necessary age qualification on the last date fixed for filing the nomination papers to make him eligible to contest the election to the membership of the non-Muslim seat. The point, therefore, has no force and the same is repelled.
8. Faced with this situation, learned counsel for the petitioner has next contended that under proviso (iii) to. Sub-rule (3) of rule 15 of the Punjab Local Councils (Election) Rules, 1979, the Returning Officer could not, while scrutinizing the nomination papers, enquire into the correctness or validity of any entry in the eiectoral roll and petitioner's age as recorded in the electoral roll on 1st January, 1979 being 21 years, he was clearly more than 25 years of age on the last date on which the nomination papers were filed and since Returning Officer had not committed any legal error and had acted in accordance with the said provision and Punjab Local Councils Election Authority which under subsection (1) of section 17 of the said Ordinance had expressly been shown to be a reviewing authority should not have interfered in the matter. On these premises, it is submitted that the said Election Authority had acted illegally in exercise of its authority in relying on the entry in Municipal Birth Register and in holding on its basis that petitioner was less than 25 years of age on the said date.
9. We have given our anxious thought to the point raised. The said point calls for interpretation and construction of proviso (iii) to sub-rule (3) of rule 15 of the Punjab Local Councils (Election) Rules, 1979. However, before we embark upon that venture, it is necessary to know what exactly is the scope of an electoral roll prepared under Electoral Rolls Act and what is exact legal effect of entries made in the said electoral rolls prepared under the said Act and the allied question as to what is the legal effect of the entry of age as recorded in the electoral roll vis-a-vis the qualification of 25 years of age prescribed for candidature for membership of local councils as laid down in section 20(b) of the Punjab Local Government Ordinance, 1979.
(1) 1982.SCMR 1084 ' We will, therefore, first proceed to look into the latter two questions before we proceed to find the legislative intent behind the said proviso.
10. Various provisions of the Electoral Rolls Act, 1974, and the rules framed thereunder show that an elaborate machinery has been provided under the Act and the Rules for preparation and finalization of the electoral rolls. Firstly, preliminary eletoral roll is prepared and is published along with a notice inviting claims and objections and applications for corrections. On this, claims for inclusion of name in the electoral roll and objections or applications for correction of entries in the preliminary electoral roll are filed by interested persons on the prescribed form within a prescribed period of limitation. Thereafter necessary enquiries are made and decisions are arrived at by the competent officers. It is thereafter that additions, deletion, modifications or corrections as a result of said decisions are made and the final electoral roll is published in the, prescribed manner.
Further, in, order to cater for he changes which take place due to the lapse of time, there is a provision in the said Act for annual revision of the electoral rolls. Not only that, a further provision has been made in the said Act for enrolment o new voters at times other than the annual revision and the preparation of thy rolls. Rules have been framed to give effect to the said provisions of law.
However, on a close scrutiny of all the provisions of the Act and the Rule made thereunder, it is clear that the object of entire exercise undertaken under these provisions is to name and particularize the persons who are found to qualified to vote ip an election as valid voters. The electoral roll of an electoral unit thus serves the purpose of showing that persons named in it are entitle to vote in the election of that unit and the rights of any such person to vote cannot be questioned, as, the entry in the electoral roll has been made after elaborate enquiry and taking into consideration the objections and the claim for the said purpose. Entries in respect of age, profession etc. In the electoral roll are meant only as an aid for affording some identification for ascertainment of the person who has been registered therein as a voter an cannot in the light of provisions of the Electoral Rolls Act, 1974, be said to be final and conclusive . As regards their correctness, except insofar as the touch the right of a person registered therein to vote. As for entry of age, it is true, that in the pro forma prescribed under the Rules for lodging the claim for inclusion of a name in the electoral roll, there is a column provided for the age, but it must be noted in this connection that at the time o preliminary preparation of the electoral roll under section 6(2) (b) of the Electoral Rolls Act, 1974, a person can be enrolled as a voter of an electoral area if he is not less than 18 years of age on the first day of January in the year in which the preparation or revision of the electoral rolls comment under the Act.. There is no duty cast on the Registration Officer in this provision to see as to what is the exact age of the person who has been registered. Furthermore, neither under any provision of the Electoral Roll Act nor under the Rules made thereunder it is incumbent upon the Registration Officer to record the age of a voter with exactitute. Although in the prescribed pro forma, the applicant who wishes to be enrolled is to give hi actual age, and normally the registration officer is also to enter his correct age, but the . Said entry cannot be said to be final as the ascertainment of the actual age of the voter is not a legal necessity for the purpose of preparation of the rolls. It is enough if as laid down in section 6(2) (b) of the Electoral Rolls Act, 1974, it is found that the person concerned is not less than 18 years of age on the first day of January in the year in which the preparation or revision of the electoral rolls commences under the Act. The entry o certain number of years as age of a person registered as a voter in th electoral roll cannot, therefore, be considered to be final and incontrovertible.
11. So far as the candidature for election to the local councils is concerned, section 20(b) of the Punjab Local Government Ordinance, 1979, says that a person shall be qualified to be elected as a member of an electoral unit of a local council if he has attained the age of 25 years on the last day fixed for the filing of nomination paper and his name for the time being appears on the electoral roll of that unit. It is clear that the said subsection lays down two qualifications for a candidate, one is that he is to be a voter of the unit from which he seeks to contest the election and second is that he is not less than 25 years of age. The entries in the electoral not are final so far as the first qualification is concerned, as the roll is prepared essentially for the purpose of showing as to who are the persons entitled t vote and the entries in the same are final and cannot be questioned so far a that right goes. In regard to the second qualification, though as earlier stated, the actual age of a voter, is to be recorded in the said form, this entry cannot be said to be final. The requirement of minimum age of 25 years is a statutory provision laid down by section 21 of the Ordinance. It is an essential qualification for a candidate. The qualification of age of 25 years as laid down in section 20 (b) of the said Ordinance has got to be satisfied independently of the entry appearing in the electoral roll. The said entry does not, therefore, bar a returning officer from enquiring into, or from entertaining evidence in regard to, the correct age of a candidate.
12. After having seen the scope of entries made in the electoral roll including one in respect of the age of a voter vis-a-vis section 20(b) of the said Ordinance, we will now proceed to construe the meaning of proviso (iii) of sub-rule (3) of rule 15 of the Punjab Local Councils (Election Rules, 1979, which lays down that the Returning Officer shall not enquire into the correctness and validity of any entry in the electoral roll. In our opinion, this embargo placed on the power of the Returning Officer by the provision has to be construed in the light of aim, object and purpose for which the Electoral Rolls Act, 1974, was promulgated. The finality ostensibly appearing to have been attached to entries in the electoral roll under proviso (iii) to sub rule (3) of rule 15 of Punjab Local Councils (Election)
Rules, 1979, cannot be extended beyond the object and purpose for which the electoral roll is prepared, namely, to ascertain whether the person has a right to vote Therefore, the only meaning which can be assigned to the said proviso in that it places an embargo on the power of the Returning Officer to entertain an objection to the effect and reject nomination paper of a candidate on the ground that candidate was not a valid voter if he stood already registers as a voter in the said electoral roll. It only tells the Returning Officer that the stage for entertaining an objection that candidate is not qualified to be a voter has already gone by with preparation of the final electoral roll an prohibits him from allowing any such objection on any account and enjoin upon him to accept the factum of candidate being a voter as recorded in the said electoral unit as a proved and inviolable fact. This is the only effect of the said proviso and nothing more. In consequence we think that merely because of the said proviso, the Returning Officer is not to consider the entry of age appearing in the electoral roll as final insofar as the question of candidature for membership of a local council is concerned and for the purpose of ascertainment of the same, be can take independent evidence irrespective of the entry in the electoral roll. We are fortified in this view of ours by a number of judicial pronouncements based upon provisions of the statutes then in force which were pari materia with the Electoral Rolls Act, 1974 and section 20 of the Punjab Local Government Ordinance, 1979.
' The said decisions are : Di wan Mahboob Ahmad v. The Controlling Authority (Collector, Bahawalpur) and another (1), Ahmed v. Mir Muhammad Khan and others (2), Muhammad Tufall v.
Muhammad Salim and others (3) and Seraj-ul-Islam Khan v. Ahsan All Mandel and others (4).
13... In consequence of the above discussion, we hold that the Returning Officer had misconstrued the said proviso and hid acted illegally in exercise of his jurisdiction in holding that in matter of age of Emmanual Masih for the purpose of his candidature for membership of Municipal Committee Chakwal, be could not go behind the relevant entry in the electoral roll. We further hold that the Punjab Local Councils Election Authority had followed the correct view of law so far as the said proviso was concerned and had rightly proceeded to take evidence aliunde on the question of Emmanual Masih's age, irrespective of the entry appearing in the electoral roll and had rightly held on the basis of entry of birth of Emmanual Masih in the original birth register maintained by the Municipal Committee, Chakwal that he was not of the age of 25 years on 1-9-1983, t. e. The last day of filing nomination paper and was, therefore, not qualified to contest the election for membership of Municipal Committee, Chakwal. The second point has also, therefore, no merit in it and the same is also rejected.
14. For the foregoing reasons we have no hesitation in holding that Writ Petition No, 416/83 filed by Emmanuel Masih has, no substance in it. We accordingly dismiss the same with costs.
15. Since in Writ Petition No, 416-83, the order of Election Authority has been upheld, Writ Petition, No, 417-83, filed by Tariq Francis has been rendered wholly inconsequential. It is also, therefore, dismissed as having become infructuous. There will however be no order as to costs in this' Writ Petition.
(1) PLD 1961 13 J 15 (2) PLD 1966 Lah. 927
(3) PLD 1967 Kar. 104 (4) P-L D 1969 SC 5