1. HAMOODUR RAHMAN, J.-This is a certificated appeal from the judgment and order of a Division Bench of the High Court of West Pakistan in a writ petition.
2. The said writ petition was filed on the 4th of August 1960, by the respondent No. 1 herein for having the order passed by the Custodian of Evacuee Property, West Pakistan, on the 31st of May 1960, in the purported exercise of his review jurisdiction, quashed by a writ of certiorari and for the issuance of a writ of mandamus directing the Settlement authori--ties to give to the said respondent her 1/10th share in the joint family properties of her deceased husband, Mr. Barkat Ram, after partitioning the same.
3. The deceased Barkat Ram was a grandson of the late Sir Ganga Ram and he along with his father Hari Ram and his three brothers Jesu Ram, Tej Ram and Shiv Ram constituted a Joint Hindu family.
4. Barkat Ram married the respondent No. 1 under the Special Marriages Act of 1872 on the 10th of August 1945, but he died about a year later on the 29th of September 1946. After his death his widow, the respondent No. 1, on the 23rd of March 1947, filed a snit for the administra--tion of the property of her late husband. This suit was pending when the two dominions of Pakistan and India were set up and the father and bothers of Barkat Ram, who were defendants in the said administration suit and had duly entered appearance therein through counsel, migrated to India.
5. On the 10th of July 1948, however, a compromise was effected in the said suit and a decree was passed in terms of the compromise. Under the terms of the said compromise the widow was to be paid in full and final settlement of her claim certain movable and immovable properties valued at Rs. 1,87,000. The immovable properties included in the list of properties to be given to the widow were a garden and two shops at Jaranwala in the district of Lyallpur, valued at Rs. 3,500. The widow of Barkat Ram was to be given 20 % of the sale proceeds of certain other properties, if she was unable to realize the estimated value of Rs. 1,87,000 from the properties agreed to be transferred to her and the latter properties were to be charged for the recovery of the shortfall, if any, from the said sum of Rs. 1,87,000.
6. In the meantime, however, on or about the 23rd of December 1947, the Custodian of Evacuee Property, West Punjab, treated the entire joint family properties as evacuee properties and assumed possession of the same under the West Punjab Protection of Evacuee Property Ordinance No. VII of 1947. This Ordinance was replaced an the 19th of February 1948, by the West Punjab Protection of Evacuee Property Act No. VII of 1948 and latter by the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1949. The respondent Mrs. Doreen Barkat Ram, therefore, made an application under section 18 of the above-mentioned Ordinance of 1949 on the 28th of April 1955, for a declaration that she was entitled to a 1/5 share in the afore-mentioned joint family properties and that tile same were not evacuee properties. The Deputy Custodian found that she was not an evacuee but came to the conclusion that by reason of the compromise entered into in the administra--tion suit she could not get anything more, and hence he ordered that after deducting the amount which she may have already received or which she can receive after bona fide efforts to dispose of the shares given to her the balance that may be found to be due out of the said sum of Rs. 1,87,C00 should be paid to her out of the evacuee properties under section 20(2)
(k) of the said Ordinance of 1949. She went on appeal to the Custodian from the above order of the Deputy Custodian. This appeal was heard by the Additional Custodian, Evacuee Property, Lahore, who upheld the finding that the respondent Mrs. Barkat Ram was not an evacuee but reversed the order of the Deputy Custodian and granted her a declaration to the effect that she was the owner of an undivided 1/10th share and not 15th, as claimed by her, in the joint family properties of her deceased husband. He came to this view, because, in his opinion, the compromise decree was hit by the provisions of section 34 of Ordinance No. XV of 1949 and section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, which had since replaced the Ordinance. Both of these were given retrospective effect. The Ordinance invalidated decrees passed after the 14th August 1947, but the Act declared decrees or orders of civil Courts passed between the 1st day of March 1947, and the 15th day of October 1949 (the date the Ordinance came into force), to be incapable of affecting any right or interest of any evacuee in any property or of being binding on the Custodian unless accepted or approved by him. These provisions also took away the jurisdiction of all civil or revenue Courts or any other authority "to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not an evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property."
7. The Additional Custodian was also of the view that the compromise was, in any event, hit by sections 11 and 9 of the West Punjab Protection of Evacuee Property Act No. VII of 1948. Under section 11 of the above Act also the jurisdiction of civil Courts to entertain or adjudicate upon any claim in any suit, appeal, execution application or other proceedings as to whether any property is or is not evacuee property or as to what interest, if any, an evacuee has in such property, was also excluded. Under subsection (2) of the said section any decision of any Court on a claim with respect to the above given between the 15th of August 1947, and the date of the coming into force of the said Act, namely, the 19th of February 1948, was declared to be not binding on the Custodian or to have any affect upon the rights or interests of any evacuee in the property in question. Section 9 of the said Act also made all transfers of evacuee property on or after the 15th of August 1947, invalid and ineffective unless registered by the Custo--dian within the prescribed time. Since theth compromise purported to transfer at least two immovable properties at Lyallpar as also to create a charge on certain other immovable properties, it fell within the mischief of these provisions and was held to be ineffective. As such, Mrs. Doreen Barkat Ram, who had been found to be a non- evacuee, was declared to W entitled to a half share in her deceased husband's share in the joint family properties.
8. Against the said order of the Additional Custodian the Rehabilitation Authority went up in revision before the then Custodian Mr. Muhammad Jan. He affirmed the decision of the Additional Custodian and dismissed the revision petition. There--after, the Central Government referred the case to the Tribunal set up under section 43-A of the Pakistan (Administration of Evacuee Property)
9. Act, 1957, but during the pendency of the reference before the Tribunal the Rehabilitation Department acting upon a suggestion which fell from the Tribunal applied to the successor Custodian Masud Ahmad, J. For a review of the order passed by his predecessor Mr. Muhammad Jan on the 4th of July 1958. Masud Ahmad, J. Took the view that the Custodian's power to review his predecessor's order was very wide and that such an order of a predecessor Custodian could be reviewed by the successor Custodian without any limit of time suo moto "on any ground whatsoever as the justice of the case may require. In his view the justice of the present case required that the compromise decree should be approved under the powers given to the Custodian by subsection (3) of section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, and the respondent Mrs. Doreen Barkat Ram should get only the "fruit of the compromise decree which she had obtained in the year 1948 and nothing more." He, accordingly, restored the order of the Deputy Custodian.
10. This was the order that was challenged by the respondent Mrs. Doreen Barkat Ram in the High Court. The High Court disagreed with the view of the Custodian Masud Ahmad, J. That the Custodian's power of review was as wide as claimed by him. Relying upon some observations in the decision of this Court in the case of Sahibrai v. Custodian of Evacuee Property, Karachi (PLD 1957 SC (Pak.) 63) the High Court held that even though the provisions of Order XLVII of the Code of Civil Procedure were not in terms applicable to proceedings for review before the Custodian of Evacuee Property yet they served as a valuable guide for determining the scope of the powers of review. The power of review of the Custodian, however wide it might be, could not, it was held, possibly extend to the passing of an order in review which was opposed to law, merely because the Custodian, as he claimed, was satisfied that the justice of the case demanded the making of such an order. Having rejected this wide claim of the Custodian the High Court went on to hold that the compromise decree was invalid in law and could not have been acted upon and, therefore, the Custodian in purporting to give effect to the said compromise decree in the exercise of his powers of review had acted contrary to law and in excess of his jurisdiction, for he was purporting to validate something which the evacuee property law then in force declared to be invalid and of no legal effect whatsoever. The order passed in review by the Custodian Masud Ahmad, J. Was, therefore, quashed by a writ of certiorari and as n consequential relief a further direction in the nature of a mandamus was issued to the Settlement authorities to partition the joint family properties of the deceased Barkat Ram and to give to his widow a 1/10th share therein after partitioning the same.
11. Since the value of the subject-matter in dispute in the writ petition was worth more than Rs. 15,000 and there was also an important question of law arising, namely, as to the scope of the powers of review of a Custodian of Evacuee Property under the relevant evacuee laws, a certificate was also granted on the application of the Custodian of Evacuee Property for preferring an appeal to this Court.
12. Learned counsel appearing on behalf of the Custodian in support of this appeal has not attempted to support the claim of the Custodian that his power of review was so wide that he could review any order of his predecessor, if, in his opinion, the justice of the case so required or that when exercising such powers of review he could pass any order that he thought fit. He has contended, however, that the High Court was wrong in taking the view that section 41 of the Act of 1957, which is more or less in the same terms as section 34 of Ordinance XV of 1949, invalidated all the decrees passed by civil Courts between the 1st of March 1947, and the 15th of October 1949, for subsection
(3) of section 41 gave to the Custodian the power to accept or approve of such decrees. The relevant provisions of section 41 of the Act of 1957 are in these terms :- "41. Jurisdiction of Courts barred.-(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction-
(a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property ;
(b) .................................
(c) .................................
(2) .................................
(3) No decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March 1947, and the fifteenth day of October 1949, shall be binding on the Custodian or affect any right or interest of an evacuee in any property affected by such decision, decree or order unless it is accepted or approved by the Custodian.
(4) .................................
(5) .................................
13. The 15th of October 1949, was the date on which the Ordinance No. XV of 1949 came into force and it is worth noting that under section 34(3) of the said Ordinance no power was given to the Custodian to approve or accept any such decree of a civil Court which adjudicated upon any question as to whether any property was or was not evacuee property or what right or interest, it' any, an evacuee had in any such property. It is clear, therefore, that from after the 15th of October 1949, no civil Court had any power to adjudicate upon any such question, for, that power was expressly taken away and exclusively vested in the Custodian. Subsection (3) of section 41, therefore, made provision for decrees which may have been passed between the Ist March 1947, and the 15th of October 1949, and it was provided that even if any such decree had been made by a Court which was competent at that time to pass such a decree that decree would not be binding on the Custodian or affect any right or interest in any evacuee property unless it was accepted or approved by the Custodian. So far as West Punjab was concerned, it has to be noticed that under section 11 of the West Punjab Protection of Evacuee Property Act, 1948, which came into force on the 19th of February 1948, before the compromise decree in this case was passed, there was a similar exclusion of the jurisdiction of the civil Courts with regard to such matters and subsection (2) of the said section provided:- "11. Jurisdiction of civil Courts barred in certain matters.--(1) .
(2) No decision of any Court on a claim such as is referred to in subsection (1) given between the 15th of August 1947, and the coming into force of this Act, shall be binding on the Custodian or shall affect the rights or interests of any evacuee --in the property in question."
14. So far, therefore, as the territories of West Punjab were concerned, the civil Courts did not from and after the 19th of February 1948, possess any jurisdiction either to entertain or to adjudicate upon any claim in any suit, appeal, execution application or other proceeding as to whether any property is or is not evacuee property or as to what interest, if any, an evacuee has in such property, except in a case where the claimant has been referred to the civil Court by the Custodian authorities for the establishment of his or her title. On the 10th of July 1948, therefore, the civil Court at Lahore had no jurisdiction to pass the compromise decree, the effect of which was to transfer certain evacuee properties to a non-evacuee and to declare a charge over certain other immovable evacuee properties in favour of such a non-evacuee. The decree passed in terms of the compromise was certainly a decree which purported to give to Mrs. Doreen Barkat Ram certain properties which were evacuee properties and to determine that the shares of the evacuees other than Mrs. Doreen Barkat Ram in certain other properties were to be subjected to decree, therefore, fell mischief of the West Punjab Act of 1948, section 34 of the Ordinance of 1949 and clause (a) of subsection (1) of section 41 of the Act of 1957 and was, therefore, a matter with respect to which the jurisdiction of the civil Courts had been expressly excluded as long ago as the 19th of February 1948.
15. Subsection (3) of section 41 was designed to invalidate even decrees passed before the Ordinance of 1949 came into force. Its intention was not to protect, as contended by the learned counsel appearing on behalf of the Custodian, all and every decree purported to be passed during the said period by a civil Court but only such decrees which were competently passed. On the 10th of July 1948, so far as West Punjab was concerned. The jurisdiction of the civil Courts there had already been excluded with regard to such matters by section 11 of the Act of 1948 and, therefore, the civil Courts at Lahore h to no jurisdiction at the relevant time to pass any decree on the basis of a compromise and the same could not be approved or accepted by the Custodian under subsection
(3) of section 41 of the Act of 1957. The contention that the Custodian had the power even to approve of invalid decrees is not tenable. The exception made by subsection (3) of section 41 is available only in the case of decrees or orders passed by a civil Court or other authority in respect of any evacuee property between the dates mentioned therein only if such a decree or order is made competently in the lawful exercise of the jurisdiction of that Court or authority. A decree or order passed without jurisdiction is a nullity and it would be wholly unreasonable to hold that the Legislature intended to give by subsection (3) of section 41 of the Act of 1957 any power to the Custodian to accept or approve of something which did not exist in the eye of the law.
16. Another argument advanced on behalf of the Custodian was that since the suit filed by Mrs. Barkat Ram was only a suit for administration, it was not a suit of the nature in which any question as to the evacuee nature of any property or as to the share of interest of any evacuee in such property could legitimately arise for consideration. This argument is also without any substance, for, whatever might be the true nature of an administration suit pure and simple, the decree that was actually purported to be passed on the basis of the compromise in the present case did directly affect evacuee property by providing for the transfer of some in favour of Mrs. Barkat Ram and for the creation of a charge over some others. If the decree is given effect to, then the evacuee nature of the properties transferred to Mrs. Barkat Ram will be certainly affected and to that extent also the shares or interests of the evacuee owners in these properties will be diminished. The decree passed, therefore, came within the mischief of the provisions of section 41(1)(a) of the Act of 1957, section 34 of the Ordinance of 1949 and also, of subsection (1) of section 11 of the West Punjab Act of 1948,.
17. In this view of the matter we are satisfied that the High Court rightly set aside the order of the Custodian. This appeal must, accordingly, fail and is dismissed with costs.