There was a joint Hindu family before Partition consisting of three brothers--Om Parkash, Bodh Raj and Ralla Rain. This family owned considerable immovable property in Lahore including house No, 3, Abkari Road, Lahore (property No, S-III-10-S-3). Vide Partition-Deed dated 24-4-1947 the property was divided amongst three brothers. Om Parkash died before Partition leaving behind his widow Mst. Shanti Devi and a daughter Mst. Sudesh Kumari. At the time of Partition of the country, all these persons migrated to India. However, Ralla Ram returned to Lahore in December 1947. He embraced Islam publicly through the Imam of Badshahi Mosque, Lahore, and his new Muslim name was Sh.
Muhammad Iqbal. He married a Muslim lady Mst. Mahmooda Begum who was national of Pakistan.
Out of this wedlock there were two issues Mst. Zahida Iqbal and Waris Iqbal who arc the petitioners in the present writ petition.
2. Sh. Muhammad Iqbal alias Ralla Ram made an application under section 15 of West Punjab Protection of Evacuee Property Ordinance, 1947 (VII of 1947) for restoration of four pieces of property including house No, 3, Abkari Road, Lahore, which by that time had been allotted to two Government servants including Nawab Khan respondent. The representative of the Rehabilitation Authority appeared before the Additional Custodian but he had no objection to the restoration.
Mirza Abdur Rab, the then Additional Custodian, West Punjab, vide order dated 12-2-1948 restored the properties including the house in dispute to said Sh. Muhammad Iqbal. It is pertinent to note that the allottees of the house were not protected in any manner and were directed to vacate the premises within one month. However, Sh. Muhammad Iqbal was directed to produce his accounts once a month before the Rehabilitation Authority. There is nothing on the record to show that he did not comply with this direction.
3. Nawab Khan and other allottees neither vacated the premises within the fixed period of one month nor agreed to become tenants of Sh. Muhammad Iqbal. Subsequently these tenants were informed by the Rehabilitation Department that after the restoration order in favour of Sh.
Muhammad Iqbal, they would be the tenants of the owner who was entitled to realise rent from them and in case of default they would be ejected from the premises. The position of the Rehabilitation Department was that after the restoration of the property to the owner, the allotments made earlier stood cancelled. It appears that Nawab Khan respondent and other occupants in spite of this new situation did not pay any rent to the owner, nor vacated the premises. Nawab Khan challenged the order of the Additional Custodian dated 12-2-1948 in revision before the Custodian on 12-9-1955. It was prayed in this revision petition that the restoration order be cancelled and the property be declared as evacuee property. This revision petition was dismissed by the learned Custodian on 23-12-1955 on the question of limitation as well as on merits. On the death of Sh. Muhammad Iqbal in 1952, his widow Mst. Mahmooda Begum subsequently filed a suit for ejectment before the civil Court. Nawab Khan respondent raised an objection that the property in dispute was evacuee. The Civil Judge accordingly made a reference to the Deputy Custodian, Evacuee Property, who after thorough inquiry held that the property in dispute viz. house No, 3, Abkari Road, Lahore, was not evacuee property. This order was subject to the approval of the Additional Custodian, Evacuee Property. The learned Additional Custodian did not confirm the said order but returned the case to the Deputy Custodian with the following remarks :-- (i)Whether the petitioner's husband's two brothers Bodh Raj and Om Parkash had joint share in the property in dispute?
(ii)Whether the petitioner's husband had another wife from Hindu marriage and whether any share was given to her from the property in dispute?
After complying with these directions another Deputy Custodian submitted a different report holding that the property was joint Hindu family property and unless duly partitioned, it would remain a joint family property. However, Mst. Mahmooda Begum and her son and daughter were held to be legal heirs to inherit Sh. Muhammad Iqbal. It was further held that even if the Hindu widow of said Sh. Muhammad Iqbal alias Ralla Ram was alive, she would not inherit from a Muslim husband under the Muhammadan Law. Again the matter came up before the Additional Custodian who vide order dated 8-3-1960 held that the property in dispute was evacuee property and, therefore, the civil Court had no jurisdiction in the matter. Against this order a revision petition was filed before the Custodian who vide order dated 2-7-1960 dismissed the same and declined to interfere with the order of the Additional Custodian.
4. On 12-7-1960, Mst. Mahmooda Begum and the present petitioners submitted an application under section 13 of Act XII of 1957 for possession by partition of 1/3rd share in the joint Hindu family property. This application was submitted to the learned Custodian. According to the petitioners the said application is still pending before the Custodian and was not forwarded to any Additional or Deputy Custodian for disposal. Mr. Ashfaque Elahi, Deputy Settlement Commissioner (Undisposed of Properties) initiated proceedings against the petitioners who immediately moved the Additional Settlement Commissioner and obtained a stay order that till the disposal of the application under section 13 by the Custodian no further action should be taken against the petitioners regarding the transfer of the property. Mr. Ashfaque Elahi subsequently was succeeded by Mr. Wali Muhammad Naghar who vide order dated 23-11-1963 transferred the upper residential portion of property No, 3, Abkari Road, Lahore, in favour of Nawab Khan and Mukhtar Khan against their C H Forms but reserved the shops and godowns on the ground floor for auction. Nawab Khan challenged the order of the Deputy Settlement Commissioner in appeal claiming the transfer of the business premises as well. The Additional Settlement Commissioner dismissed the appeal maintaining the order of the Deputy Settlement Commissioner. This order was further challenged in revision before the Settlement Commissioner both by Nawab Khan respondent as well as the present petitioners.
Mr. Muqarrab Khan, the learned Settlement Commissioner, vide order dated 31-7-1968 rejected the revision petition of the petitioners but accepted that of Nawab Khan and transferred the whole property including the business premises on the ground floor in favour of Nawab Khan. The petitioners have challenged the impugned orders of the Settlement authorities through the present writ petition.
5. The main point which requires determination in this case is as to the effect of restoration order dated 12-2-1948 passed by Mirza Abdur Rab, Additional Custodian. According to Mr. Saeed Akhtar, the learned counsel for the contesting respondent, the restoration order did not change the character of the property and it would not amount to a declaration of non-evacuee property.
Reliance in this behalf was placed upon certain decisions given by the Custodian viz. In re: Lahore Electric Supply Company Ltd. , Begum Muhammad Ismail v. Mst. Santosh Lata and P. G. Bhandari v. Rehabilitation Authority .
6. As pointed out earlier Sh. Muhammad Iqbal alias Ralla Ram had submitted his application under section 15 of the West Punjab Protection of Evacuee Property Ordinance, 1947 (VII of 1947). This Ordinance was promulgated on 1-12-1947 and had repealed the earlier Provincial Ordinance No, V of 1947. This application was disposed of on 12-2-1948. Ordinance No, VII of 1947 was succeeded by the West Punjab Protection of Evacuee Property Act No, VII of 1948 which was promulgated on 19-2- 1948. Later on the Central Government promulgated the Pakistan Protection of Evacuee Property Ordinance No, XVIII of 1948 which in turn was succeeded by Ordinance No, XV of 1949. At present the law in the field is Pakistan Administration of Evacuee Property Act XII of 1957.
7. Thus, it is clear that at the relevant time the law applicable to the case was West Punjab Protection of Evacuee Property Ordinance VII of 1947. We will, therefore, examine the effect of restoration under this statute alone. Section 15 of this Ordinance, which deals with the restoration of property, is reproduced below :- "15. Unless in the opinion of the Custodian, the restoration would be prejudicial to the prescribed objects the owner of any evacuee property shall be entitled to restoration thereof if he returns to West Punjab to resume his residence or business in this Province on application to the Custodian and on payment of such excess, if any, of expenditure over receipts in respect of such property, undertaking or business, as appears from the Custodian's account books, and of the fees livable under section 14 : Provided that the Custodian shall give not less than 15 days' public notice of every such application by proclamation in the locality, affixation on the property and any other method which he may consider suitable, and where the application is opposed, if the Custodian is not satisfied after necessary inquiry, concerning the title of the applicant, he shall refuse to deliver possession and shall refer the applicant to a civil Court : Provided further that where the applicant claims as an heir to an evacuee owner, the Custodian may refuse to restore possession, unless the applicant produces a succession certificate or letters of administration or probate of a will from a competent Court : Provided further that every lease validly granted by the Custodian or any Rehabilitation Authority shall have effect as against the owner or any claimant, until determined by lapse of time or operation of law."
To determine the real import of this section we will have to examine some other provisions of this Ordinance. According to the preamble this Ordinance was enacted "to make provision for the protection and care of the property of evacuees from that Province". For the purposes of carrying out the provisions of this Ordinance the Provincial Government was required to appoint a1 2 3 Custodian and an Additional Custodian of Evacuee Property for the Province generally and Deputy Custodian and Assistant Custodians of Evacuee Property for such local areas as may be specified in the Notification. Under section 4 of this Ordinance the Custodian was to take such measures as he considered necessary or expedient "for preserving or safeguarding" evacuee property. Under section 8 any occupant or holder of evacuee property or any other persons claiming an interest therein, could, by a petition to the prescribed Custodian, ask for a declaration (a) that the property in question was not evacuee property and (b) that it was evacuee property to a limited extent only.
Under section 20 "evacuee property" is defined as under and "evacuee" as owner of such property : -- "20(d).--`Evacuee property' means any property in the West Punjab which owing to the recent disturbances, the owner cannot personally occupy or supervise, or take delivery of from the place of deposit, or in the case of a corporation property which forms the assets of any business or undertaking which has ceased wholly or partially to operate owing to the said disturbances."
From the perusal of the various provisions of Ordinance VII of 1947 the intention of the Legislature becomes clear about (a) the nature of the evacuee property, (b) the power and duties of the Custodian, and (c) the rights of the evacuee owners who returned to West Punjab and were restored their properties or business. It appears from the preamble of the Ordinance and the definition of "evacuee property" that at that stage the Government did not contemplate that the exchange of population between India and Pakistan was permanent but the absence of the real owner of the evacuee property during that period was considered purely of temporary nature believing that he would return and occupy his property or business. During such temporary absence of an evacuee owner his property was to be looked after by the Government or the Custodian on his behalf. During such absence, it appears, the intention was not to impose any disability upon such an owner in relation to his property. On return of such an owner to West Punjab when his property or business was restored to him, the owner was placed in his original position as before as if temporary abandonment had no adverse affect upon his right as owner. Even the ordinary dictionary meaning of "restoration" supports this view. It is in this background that we have to examine the legal significance of the restoration order.
8. The analysis of section 15 of this Ordinance shows the following conditions which the Custodian is required to take into consideration while dealing with an application for resto-ration :- (a)Whether the restoration would be prejudicial to the prescribed objects.
(b)Whether the owner has returned to West Punjab to resume his residence or business in this Province.
(c)Whether the owner is liable for payment of such excess, if any, of expenditure over receipts in respect of such property, undertaking or business as appears from the Custodian's account books.
(d)Whether the owner is liable to pay any fee leviable under section 14.
In the present case there is nothing in the order of the learned Additional Custodian dated 12-2- 1948 that the restoration would be prejudicial to the prescribed objects. Similarly there is nothing on the record to show that any expenditure was incurred by the Custodian for this property for which the owner could be liable. There is also no direction about the payment of fee leviable under section 14 of the Ordinance. The most important condition that the owner should return to West Punjab to resume his residence or business has been duly fulfilled as Sh. Muhammad Iqbal alias Ralla Ram did return to Lahore in December 1947 and resumed his business and occupied his residence. Thus, he has complied with the requisite conditions laid down under section 15 and there is nothing on the record that he did not fulfil the conditions imposed upon him. The words "shall be entitled to restoration" in section 15 are also significant to indicate the intention of the Legislature regarding the right of an owner for restoration of his property. Thus, at the relevant time mere return of an owner of a property or business made him entitled to the restoration of his property.
Now the question is that when the property was restored on 12-2-1948 to the owner without any condition, what will be the effect of such restoration on the nature of the property itself. According to Mr. Saeed Akhtar the restoration order under this section does not alter the nature of the property, which had already been treated as evacuee, otherwise, according to him a restoration order would also amount to a declaration of non-evacuee nature under section 8 of the said Ordinance. This brings us to the examination of section 8 of the Ordinance and whether it is applicable to an owner of the property or not. For the sake of convenience this section is reproduced below :- "8.---(1) Subject to the other provisions of this Ordinance any occupant or holder of evacuee property or any other person claiming an interest therein may by petition to the prescribed Custodian, ask for a declaration -- (a)that the property in question is not evacuee property, or (b)that it is evacuee property to a limited extent only.
(2) On receipt of such a petition, the Custodian may record such evidence as the petitioner can produce in support of his claim and may hold such further inquiry into the matter as he may deem fit. At the close of the inquiry, the Custodian may pass an order allowing the claim on such terms and conditions as he may deem just or rejecting it in whole or in part."
This section gives right to three classes of persons viz. (a) "occupant", (b) "holder of evacuee property", and (c) "any other person claiming an interest therein". The simple question now is whether an owner of evacuee property is covered by any of these three categories. An owner cannot be described as mere occupant or holder of the evacuee property. Therefore, the only possible category under which such owner can be brought is the last category of "any other person claiming an interest therein". Even this category will not cover the owner because the status of a person under the last category cannot be superior in character to the first mentioned two categories. Generally an occupant means a person in possession of a property under the authority of the owner. Similarly a holder also means a person with possessory title. The third category in the descending order will apply to a person of still inferior status. If the intention of the Legislature was to apply this section to an owner, the construction of it would have been different. The word "owner" having the real title in the property then should have been mentioned prominently in clear and unambiguous terms before the word occupant etc. because the status of an owner is admittedly superior to all these categories mentioned therein. Mr. Saeed Akhtar could advance no valid reason for the omission of the word "owner" from this section. Similarly he could not explain that if the Legislature wanted to apply this section to an owner also, why persons with inferior rights have been specifically mentioned but the owner with superior rights is omitted.
The only legitimate and reasonable inference, therefore appears to be that section 8 does not apply to the owner. This inference is supported by the fact that the section is subject to other provisions of this Ordinance which include section 15. This conclusion gets support from section 15 under which an owner was given the right to apply for restoration and once the property was restored there was no need of further obtaining any declaration under section 8 about the non- evacuee nature of the property. Thus, on 12-2-1948 when the property in dispute was restored to Sh.
Muhammad lqbal alias Ralla Ram by the Additional Custodian, it ceased to be evacuee property and there was no need of obtaining any further declaration under section 8 of the Ordinance which did not apply to the owners. It is an admitted fact that after 12-2-1948 no action whatsoever has been taken by the Custodian either against Sh. Muhammad Iqbal alias Ralla Ram or his property.
The next conclusion which follows is obvious. The property will not become part of the pool and, therefore, would not be available for transfar under the Displaced Persons (Com-pensation and Rehabilitation) Act, 1958, and the Settlement authorities would have no jurisdiction to transfer this property in favour of the respondents or otherwise deal with it. Consequently the transfer of the house in dispute in favour of Nawab Khan and Mukhtar Khan is clearly without lawful authority. The view I have taken is in accordance with the law enunciated by the Supreme Court of Pakistan in P.
G. Bhandari's case . In fact, the present case stands on higher footing. The property in that case was restored to Mr. Bhandari on 10-5-1948 under West Punjab Protection of Evacuee Property Act VII of 1948 on certain terms and conditions which are missing in the present case. The Custodian in that case had inter alia held that the property remained evacuee even after restoration. Their Lordships of the Supreme Court, however, reversed that finding and held that the property was no longer evacuee property. The principle enunciated by their Lordships is fully applicable to the present case. I accordingly hold that the properties including the house in dispute restored to Sh.
Muhammad lqbal alias Ralla Ram on 12-2-1948 by the Additional Custodian ceased to be evacuee property.
9. Mr. Saeed Akhtar relied upon the partition deed dated 24-4-1947 under which the shares of three brothers were specified. According to him since the requisite approval of the Custodian under section 20 of Act XII of 1957 had not been obtained, the entire property including the share of Ralla Ram would vest in the Custodian and would be deemed as evacuee property. It is an admitted fact that nobody got the approval or confirmation of the said partition deed from the Custodian. The result is that no party can claim any right under the said deed, and it amounts as if this deed does not exist in the eyes of law. This being so, the property will continue as belonging to the joint Hindu family as it was before the execution of the said deed and each member can claim his respective share. Sh. Muhammad Iqbal alias Ralla Ram would be entitled to his 1/3rd share in the joint Hindu family property. Even if the contention of Mr. Saeed Akhtar be admitted to be correct that in the absence of the approval of the Custodian under section 20, all the properties mentioned in the partition deed would be deemed as evacuee, his clients cannot be benefited because of the view I have taken regarding the effect of restoration order dated 12-2-1948.
10.As regards the application filed by the petitioners under section 13 of Act XII of 1957, it is contended by Mr. Sued Akhtar that the same has been disposed of by Mr. Wali Muhammad Naghar who apart from being the Deputy Settlement Commissioner, was also appointed as Additional Custodian. It is not clear whether the application of the petitioners submitted to the Custodian has actually been disposed of or not. The Department in its report stated that the said application was not on the file before Mr. Wali Muhammad Naghar. To verify this fact I requisitioned the said file and in spite of thorough scrutiny I could not find this application on the file of Mr. Wali Muhammad Naghar. It appears that the said application was submitted before the Custodian and neither he himself disposed of that application nor forwarded it to any Additional or Deputy Custodian for necessary action. This is so far as the actual application is concerted. The fact, however, is that Mr. Wall Muhammad Naghar while dealing with the transfer of the property on the Settlement side as Deputy Settlement Commissioner, he has also dealt with the partition of the property. It appears that this objection was raised before him and, therefore, he has disposed of that objection. It further appears from the perusal of his judgment that he has adopted partition as it was done by the family on 24-4-1947. It is argued by Mr. Saeed Akhtar that it should be presumed that the application given by the petitioners under section 13 has been disposed of as Mr. Wall Muhammad Naghar being the Additional Custodian was competent to deal with the matter. The matter is not so simple. Even if it be conceded that the application submitted by the petitioner before the Custodian has in fact been disposed of by Mr. Wr II Muhammad Naghar while dealing with the case on the Settlement side, his mode of partition is open to objection on mere than one ground. Re has merely endorsed or approved the partition of 1947 although the conditions on 2341-1963 when has dealt with the case were entirely different. It is true that according to the partition deed of 24-4- 1947 Ralla Ram was not given any share in the house in dispute as he was given the business of the family along with goodwill, but when Mr. Wali Muhammad Naghar passed the impugned order the4 said business was no longer in existence. According to the affidavit filed by Muhammad Umar Mirza the next friend of the petitioners, on the death of Sh. Muhammad Iqbal alias Ralla Ram in 1952 the business which was carried in a rented shop, was sealed by the Rehabilitation Department and later allotted to Haji Muhammad Ismail Paul on 14.10-1954 who took possession on the same day.
Later on the said allottee applied on his C S Form for the transfer of the said shop but it was treated as a part of Nizam Hotel building which was declared as big mansion and was subsequently on 29-8-1960 permanently transferred to Messrs Muhammad Latif, Muhammad Younas and Abdul Hakim for Rs, 7,50,000/. Thus, on the day when Mr. Wall Muhammad Naghar purported to have partitioned the properties this business, which in 1947 was most valuable and was given the maximum value, was no longer in existence. It is ununderstandable how this business could be taken into consideration in 1963 when it was no longer in existence. If Mr. Wali Muhammad Naghar really partitioned the property, then he should have taken into consideration the properties as they existed at that time. He should have restored to the heirs of Sh. Muhammad Iqbal alias Ralla Ram the business which was given to him under the partition deed of 1947. Since this was not possible and practicable, he should have partitioned the properties as they existed on the day he passed the order. If the order of Mr. Wali Muhammad Naghar Is allowed to stand, then Sh. Muhammad Iqbal or his heirs would practically get nothing as what he got in 1947 was not available in 1963. The other material circumstances which has not been taken into consideration by him is an important clause contained in the partition deed of 1947, which reads as under:-- {{URDU TEXT}} It seems that Mst. Shanti Devi had only life interest in the house mentioned at serial No, 4 and after her death this was to be divided between Ralla Ram and Bodh Raj. The interest of the Custodian in this property on behalf of Mst. Shanti Devi, therefore, cannot be more than what she herself had in this property. The Custodian can claim only life interest and so far as the inheritance is concerned, half of it must come to the present petitioners as heirs of Ralla Ram. Another objection against this order of Mr. Wali Muhammad Naghar is that if he wanted to deal with this case on the Custodian side, he should have passed separate independent order and should have exercised his powers as Additional Custodian. It was not proper for him to deal with this aspect while disposing of the case on the Settlement side as Deputy Settlement Commissioner. In the circumstances this order cannot be allowed to stand and I quash the same.
11.Apart from the legal aspect of the case, it has to be borne in mind the bona fides of Sh.
Muhammad Iqbal alias Ralla Ram. He returned to Lahore in December 1947 and settled here permanently. He gave up his previous Hindu faith and embraced Islam publicly. He married a Muslim lady and the present petitioners are the issues out of that wedlock. Since his return to Lahore he never visited India again but remained here throughout till his death. The present petitioners admittedly being his son and daughter are entitled to 1/3rd share of their father in the joint Hindu family property. While safeguarding the evacuee interest, the Custodian as well as the Settlement authorities have completely failed to safeguard the interest of their own nationals, namely, the petitioners. The simple question is whether the present petitioners have got one-third share out of the joint Hindu family property, if not, that should be made good without further delay.
At one stage, a doubt was created that Ralla Ram had a Hindu wife and children from her who had migrated to India. Although there is nothing on the record to substantiate this fact yet even if it be so, it will not adversely affect the rights of the petitioners because it is now a well-settled principle of Muhammadan Law that if a Hindu who has a Hindu wife and children embraces Islam, and marries a Muslim lady, and gets children by her, his property, on his death, will be inherited by B his Muhammadan wife and children and not by his Hindu wife or children. Since after embracing Islam Sh. Muhammad Iqbal alias Ralla Ram died here, in Pakistan, as a Musalman, he cannot be inherited by his alleged Hindu wife or children. The present petitioners alone are entitled to inherit him under the Muhammadan Law.
12.Mr. Saeed Akhtar also argued that the order of the Custodian dated 2-7-1960 and of Mr. Wali Muhammad Naghar dated 23.11-1963 (only that portion which dealt with the partition of the property) have not been challenged by the petitioners and therefore have attained finality. It appears the petitioners did not challenge the order of the learned Custodian further as their application under section 13 for separating their one-third share of the property by way of partition was submitted to the Custodian on 12-7-1960 and if accepted it would have given them complete relief. As indicated earlier, this application has neither been disposed of by the Custodian nor forwarded to any Additional or Deputy Custodian for disposal. As regards the order by Mr. Wali Muhammad Naghar, I need not repeat what I have observed above about it. Moreover, as held earlier, since the property had ceased to be "evacuee property" on 12-2-1948, the Custodian authorities had no jurisdiction to deal with this property after its restoration.
13.Since the Custodian authorities have not properly determined the shares, one-third share of the petitioners in the Joint Hindu Family property, it will be open for the Custodian to ascertain the exact share of the present petitioners In accordance with law and to take back excess, if any, from them.
14. For the foregoing reasons, the writ petition is allowed and the impugned orders are hereby declared to have been passed without lawful authority, and therefore, of no legal effect. The parties shall bear their own costs. PLD 1956 Cust. (Pb.) 12 PLD 1957 Cust. (W P) 10 PLD 1958 Cust. (W P) 17 P D 1961 SC 89