1. ' SALEEM AKHTAR, J.--This Letters Patent Appeal has been filed against the judgment of the leanred Single Judge, declaring the order of the Additional Settlement Commissioner dated 13-1-1960 and orders of the learned Settlement Commissioner dated 10-3-1966 as illegal, and without lawful authority. The history of this litigation goes back to the year, 1948 and relates to a residential house No. 284 JM 2 situated in Karachi Co-operative Housing Society Ltd. previously known as Thattai Co- operative Housing Society. This property was originally owned by a Hindu Jiwat Ram. After his death in the year, 1936 it was mutated in the name of Sobhraj and Mewa Ram. Both the brothers were holding half share each in the property. On 5th April, 1948 Sobhraj applied to the Society for transfer of his half share in the house of his brother Mewa Ram. By a resolution dated 10th April, 1948 the Soceity resolved to accept the statement and transfer was accordingly made in its record.
2. Thereafter they applied to the City Deputy Collector for mutation of the name of Mewaram. They appeared with two witnesses before the City Surveyor Karachi and made a statement that Sobraj has gifted his property to Mewa Ram. After recording the statement on 27-4-1948 the entire property was mutated in the name of Mewa Ram. On 5-3-1950 Fazal Ahmed made an application to the Custodian that half share of Sobraj be declared evacuee property as Sobraj has migrated to India. The admitted position is that after mutation of name of Mewa Ram, Sobraj left Pakistan in July, 1948. By the following order dated 8-7-1950 the Custodian declared half share of Sobraj as evacuee property:- 'Meva Ram's brother Sobhraj has a share in the property and to the extent of his share it is Evacuee Property, that is one half. The transfer in favour of Meva Ram is of no effect in the absence of confirmation under section 16."
3. ' It seems that on 1-5-1950 Mewa Ram filed an application under section 16 of Ordinance XV of 1949 stating that he and Sobraj jointly owned plot of land bearing survey No. 284-JM. On 5-4-1948 by oral partition' he became the sole owner of the property. A copy of the extract was also filed. It was further stated that Sobhraj had applied to the Managing Committee of the Society to transfer his interest to Mewa Ram and the Society on 6-4-1948 sanctioned the transfer and entered his name as the sole owner of the property. A copy of the Resolution was also filed. He further stated that the transfer was bona fide and for reasonable consideration. He finally prayed that 'transfer of property be confirmed.' It seems that the matter was dealt with by the Additional Deputy Custodian (Judicial) Evacuee Property before whom Mewa Ram filed a statement, dated 2-5-1950 in which he stated that the partition was made in the presence of two respectable members of the community and further that as Sobhraj wished to leave as a consideration the movable property and cash were given to him. He thereafter specified the movable properties and cash paid to Sobraj in return of which he got Mewa Ram's name mutated. He also produced an income-tax clearance certificate dated 15th June, 1950 which was valid upto 30-7-1950. The'certificate provided that it related to half share in the property No. 284 JM which was intended to be transferred to Mewa Ram for a consideration of Rs. 23,000. On the basis of these documents and the statement of witness Bhagwandas, by his order dated 6-10-1950 Mr. S.M. Jaffery the Additional Deputy Custodian 'confirmed the partition.' Abaida Begum one of the occupants filed an appeal before the Custodian, which was rejected by the following order, dated 3rd March, 1951:- ' It is contended that the consideration for the trasfer by partition was not adequate and that for that reason the application of the partition is supported by the evidence of Bhagwandass Premchand a retired D.S.P. His evidence has been accepted by the Dy. Custodian; I see no reason to doubt its correctness having regard to the fact that the transaction was given effect in the records of the Housing Co-operative Society for which an application was made as early as the 5th April, 1948. I reject the appeal.
4. ' Thereafter Mr. Mansoor Alam took over as the Custodian and under his suo motu powers to revise the order, he reopened the case on 14-10-1954 and Mr. S. Riazuddin the Additional Custodian (Judicial) was directed to enquire into the facts. In pursuance thereof Mewa Ram was examined by him on 28-12-1954 when he stated that Sobraj had migrated to India in 1948. The learned Additional Custodian submitted an exhaustive report on 1-1-1955 to the Custodian stating that order, dated 6- 10-1950 passed by Mr. S.M. Jaffery was obtained by Mewa Ram by fraud and that it was a fit case for interference. On receipt of this report Mr. Muhammad Bux Memon who had succeeded Mr. Mansoor Alam as Custodian started suo motu proceeding to suo motu revise the order of 6-10- 1950 and also to suo motu review the Custodian's order, dated 3-3-1951. The learned Custodian passed order on 15-3-1958 operative part of which reads as follows: ' I, therefore, in exercise of my powers of revision suo motu set aside the order of Mr. Jaffary and consequence the order of Mr. Akbar Hussain dated 3-3-1951 will also be set aside in the exercise of my powers to review suo motu."
5. ' Mewa Ram filed writ petition No. 137/58 challenging the order of the learned Custodian which was allowed by a Division Bench on 26-3-1959 and the judgment is reported in PLD 1959 Kar.
335. The learned Custodian's order was set aside, on the ground that the provision to subsection
(6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957 did not permit review of a final order passed on or before the 17th November, 1956 declaring any person to be not evacuee or any property to be not evacuee property. The respondents in that petition applied to the High Court for certificate to appeal to the Supreme Court but it was rejected on 24-9-1959.
6. Thereafter, the Central Government referred the matter to the Custodian of Evacuee Property for reappraisment of entire orders. It was contended before the Custodian that (1) the order of Additional Deputy Custodian dated 6-10-1950 and the order of the Custodian dated 3-3-1951 were obtained by Mewaram by fraud, (2) the order, dated 6-10-1950 had been tampered to the benefit of Mewaram. The order, dated 6-10-1950 confirmed the partition between Mewaram and Sobhraj and not the transfer of Sobhraj's share to Mewaram as the word 'transfer' was added in it afterwards, and (3) the order, dated 8-7-1950 holding that in the absence of confirmation under section 16 the transfer in favour of Mewaram was invalid has not been set aside. This reference was rejected by the Custodian as all the orders passed by the earlier authorities had merged in the judgment of the High Court passed in W.P. 137/1958. The learned Custodian was of the view that the proper course was to approach the High Court for recalling the writ issued on 26-3-1959.
7. Thereafter, on 13-6-1959 Mst. Anwar Jehan the mother of the appellant filed C.H. Form which was rejected on 23-10-1964 mainly on the ground that in view of the order passed in the writ petition, the matter cannot be opened. Mst. Anwar Jahan filed an appeal which was allowed on 29-4-1965 and half share in the property in dispute was transferred to her. Mewa Ram filed Revision Application which was dismissed in default on 13-1-1966. An application filed for restoration of the revision application was also dismissed on 10-3-1966. Finally Mewaram filed Constitutional Petition No. 249/66 with the following prayer:- "That the petitioner abovenamed, therefore, prays that for the reasons and grounds shown above this Honourable Court will be pleased to issue a Writ of Certiorari in the matter to quash the impugned orders, dated 13-1-1966 and 10-3-1966 passed by the respondent No.1 and order, dated 29-4-1965 passed. By the respondent No.2 mentioned in paragraphs Nos. 21, 24 and 17 hereinabove respectively. Any other order, writ and such other direction, as may be just and proper, be also passed in the matter and the petitioner be granted costs of the petition."
8. ' The petition was allowed by the learned Single Judge on 5-4-1971. It seems that during the pendency of this petition Mewa Ram died and his widow Radha Bai has been joined as respondent No.1 who sold her share to respondent No.2.
9. ' Mr. Fazle Ghani Khan the learned counsel for the appellant has contended that the judgment passed by the Division Bench in W.P. 137 of 1958 is against the provision of law and the principle laid down by the Supreme Court and, therefore, it is not binding and should be ignored. In this regard the learned counsel has referred to B.A. Shaikh v. Custodian Evacuee Property PLD 1969 SC 330 where relying on Sahibrai's case PLD 1957 SC 63 it was held that the Custodian is empowered to review the order passed by any other Custodian and to impose any restrictions upon their power either in respect of person or in point of time would have the effect of defeating the provision of law. The learned counsel also referred to Abdul Qayum v. Salah-ud-din PLD 1974 Kar. 10 according to which a Division Bench can dissent with the judgment of another Division Bench where it has acted in ignorance of a decision of Supreme Court which covers the point. In such case the subsequent Bench is bound to follow the judgment of the Supreme Court.
10. 'The learned counsel for the appellant has heavily relied on Sahibrai's case and B.A. Shaikh's case to show that judgment passed in W.P. 137/1958 was erroneous and not binding on us. This argument suffers from serious misconception and completely overlooks the provisions of law under which these judgments were pronounced by the Surpeme Court. In those cases Supreme Court was considering the Custodian's jurisdiction to review the order under section 36(5) of Pakistan (Administration of Evacuee Property) Ordinance XV of 1948 which did not contain provision equivalent to section 43(6) of Pakistan (Administration of Evacuee Property) Act XII of 1957 on the basis of which the learned Division Bench held that the Custodian could not review the order, dated 3-3-1951. The proviso to section 43(6) of Act XII of 1957 imposed a limit to the Costodians power of review which runs as follows:- ' Provided that no final order passed on or before the seventeenth day of November, 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed.'
11. ' The learned counsel for the appellant did not challenge the applicability of section 43. It, therefore, follows that the aforestated judgments of the Supreme Court do not apply to the present case and we respectfully agree with the view expressed by the learned Division Bench.
12. ' The learned counsel for the appellant has contended that the order of confirmation was obtained by practicing fraud, therefore, it is void and should be ignored. The learned counsel recounted the facts that although the Additional Deputy Custodian had confirmed the partition in the order produced before the authorities subsequently the words and transfer added. In this regard the learned counsel has also pointed out that enquiry was instituted and finally a criminal case was also filed in which some officials of the Custodian Department were involved. During the investigation it had transpired that on the statement recorded before the City Surveyor ink had been spilt to make it illegible. The learned counsel for the appellant referred to the contents of Mewaram's application under section 16 of Act XV of 1949 and the proceedings taken in pursuance thereof culminating in the order, dated 6-10-1950. It was pointed out that in this proceeding only Mewa Ram and his brother Sobraj were joined as parties. It has been contended that Mewa Ram did not disclose that he had obtained mutation in the office of the City Deputy Collector by making a statement on 14-4-1948 that Sobraj had given his share as a gift to Mewa Ram. Another fact which has been emphasised by the appellant's learned counsel is that the Custodian had passed an order on 8-7-1950 that in the absence of confirmation Sobhraj's share was evacuee property and copy of this order was forwarded to Mewa Ram, but no action seems to have been taken by him nor it was brought to the notice of Mr. Jaffery who passed the order on 6-10-1950. Reference has been made to the inquiries made by the learned Additional Custodian (Judi.) who in his enquiry report, dated 28-12-1954 after discussing the facts and the principles of Hindu Law came to the conclusion that Mewa Ram had suppressed the gift and falsely set up a case of oral partition which was not legal and further that oral partition was bogus. It was on this basis that the learned Custodian exercising suo motu power of review and revision passed the order on 15-3-1958. By this single order the order passed by Mr. Jaffery was set aside in exercise of the suo motu Revisional power while the order of Mr. Akbar Hussain, Custodian, dated 3-3-1951 was set aside in exercise of power of suo motu review. In the Writ Petition filed by Mewa Ram, this order, dated 15-3-1958 was set aside on the ground that the learned Custodian did not have the power to review.
13. ' The question, therefore, arises whether the respondent No.4 (Additional Settlement Commissioner) could investigate into these facts, set aside or ignore the order of the learned Custodian, dated 3-3-1951 and treat the property as evacuee property. The next question will arise whether the learned Single Judge could have held that the order dated 3-3-1951 was a product of fraud and misrepresentation and refuse to exercise his discretion.
14. 'The law is well-settled that an order obtained by fraud is not void but voidable. As held in Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 : 'It remains operative as long as it is not set aside rescinded, or recalled, by a competent authority in proper proceedings. An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to "a usurpation of power unwarrant by law", and accordingly it would be a nullity.
15. ' If, on the other hand, an order is made by a Court or authority having the necessary jurisdiction it is not an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf. While it is true, as has been so often stated, that fraud vitiates all proceedings, it must neverthe less, be borne in mind that allegations of fraud generally raise mixed questions of law and fact which can be established in an elaborate inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it.'
16. ' Such an order can be set aside or avoided directly by way of proceeding under the law providing for such a remedy by way of appeal revision or review. Another form of challenge is by way of collatral attack in which the Court is not asked to invalidate the disputed decision but as the impugned decision is a nullity in law the Court is required to disregard it. On this aspect a very instructive discussion is found in Muhammad Fazil's case PLD 1975 SC 331 and Raunaq Ali's case PLD 1973 SC 236.
17. ' We have seen that direct challenge to the order dated 3-3-1951 has not succeeded. Even after the judgment passed in this Writ Petition the reference made to the Custodian was not accepted. The Custodian had the jurisdiction to pass this order, therefore it is not void ab initio. The question arises whether Custodian's order dated 3-3-1951 could collaterally be impeached. This order could not have been challenged before the Additional Settlement Commissioner. The challenge seems to have been made before the learned Single Judge. As observed in Muhammad Fazil's case quoted above 'allegation of fraud generally raise mixed question of law and fact which can be established in an elaborate inquiry.' Such inquiry in disputed questions of fact could not be made before the learned Single Judge in writ proceedings. We are also doubtful that a collateral challenge was possible in a proceeding in which custodian was not a party. Therefore, the order dated 3-3-1951 even if obtained by fraud being voidable will continue in operation till such time it is set aside.
18. ' It has been contended on behalf of the appellants that the learned Custodian while setting aside the two orders was exercising two different jurisdiction. Under .the Revisional Jurisdiction, he set aside the order of confirmation of partition passed by Mr.S.M. Jaffari and under the suo motu review he set aside the order of Custodian passed on 3-3-1951. According to the learned counsel in Writ Petition only order passed in review has been set aside but the order setting aside Mr. Jafri's order, dated 6-10-1950 has not been interfered. The writ petition was filed challenging the entire order dated 15-3-1958 praying that writ of certiorari be issued quashing the said order. The learned Bench being satisfied of the illegality set it aside on a short legal ground and passed the judgment in the following terms:- 'We accordingly issue writ of certiorari and quash the said order.'
19. ' Thus the entire order was set aside without any exception. If the intention of the learned Bench would have been to save any part of the order dated 15-3-1958 then the same would have been specifically mentioned. In the absence of any such indication we are of the view that the entire order has been quashed. Even if for argument sake it is accepted that part of the order setting aside the order of the Additional Custodian dated 6-10-1950 stands saved, therefore, there is no basis for the order, dated 3-3-1951 does not seem to be correct. Against the order dated 6-10-1950 appeal was filed which was dismissed by Custodian's order dated 3-3-1951, therefore, the said order of the Additional Deputy Custodian has merged in the order of the Custodian which after the judgment in W.P. No.137 of 1958 holds the field.
20. ' The learned Single Judge has taken the view that the order of confirmation dated 6-10-1950 in effect confirms the transfer. In this regard the contents of the application under section 16 have been produced in the impugned judgment and need not be repeated here. It has been noted that in the application although oral partition was made basis for claiming title prayer was to confirm the transfer. In the impugned judgment it has been held that "if the partition itself has been confirmed it follows that several arrangements comprised therein are also automatically confirmed."
21. ' Mr.Mushtaq Memon, the learned counsel for the respondent No. 2 has contended that the partition of property was in consequence of an agreement between the parties and does not amount to assignment or transfer, and will not be hit by section 15 & 16 of Ordinance XV of 1949, and therefore even confirmation was not required. The learned counsel has referred to Hindu Law by Dr.Tahir Mahmood 1981 Edn. where, relying on Lilavati v. Paras A.I.R 1977 H.P.1 he has observed that a partition may be effected outside the Court by agreement of the coparceners by mutation or otherwise. In case of such partition the learned author has stated that the intention of the parties is of great importance and "in the absence of a clear intention to effect a partition severence of family will not follow." Reliance has been placed on AIR 1936 P C 281 and AIR 1956 Nag.
261. Therefore, an agreement of partition between Hindu coparcener may be oral or in writing. The governing factor is the intention of the parties and unless the parties clearly agree to such a partition there will be no partition in law. The learned counsel also contended that a family arrangement does not amount to a transfer or a creation of interest in the family property. The learned counsel contended that as the partition amongst the two Hindu brothers was merely a family arrangement it did not amount to a transfer of property and was not hit by the provision of Evacuee Laws particularly section 15 and the Notifications issued under the Act XV of 1949. Section 15 of Act XV of 1949, prohibits transfer of property generally. It provide that the Central. Government may by Notification in the official Gazatte prohibit the transfer of any property or class of property or the creation of any right or interest thereon or encumberance thereon. Section 16 of Ordinance XV of 1949 provides that creation of any right or interest or encumberance on any property made in any manner whatsoever after 1st day of March, 1949 by or on behalf of Evacuee or by or on behalf of a person who is or may become evacuee after the date of such creation or transfer shall be effected only if it is confirmed by the Custodian. The question for consideration is whether the words 'transfer' or creation of any right or interest' would cover the family arrangement or partition between the two Hindu co-owners. The object of the Ordinance was to protect the properties left by Hindu owners, and also to see that the transfer or creation of interest in any form whatsoever is not effected without the permission of the Custodian. Considering the purpose and object of legislation and the notifications that were issued, we are inclined to hold that the words creation or transfer of any right or interest in any property will cover all such transactions arrangements a devices by which a Hindu owner divests himself of his ownership right in favour of a co-owner or a third party. The meaning and implication of the word partition as canvassed by the learned counsel for the respondent No. 2 will be applicable while considering the rights of Hindu coparceners according to Hindu Law. This interpretation will not be available for inter-preting the words "transfer or creation of interest" as used in sections 15 and 16 of Act XV of 1949. The objection of the sections is completely different from the principles of transfer and partition enunciated by Hindu Law. In fact these sections impose restriction on the right to transfer the property whether the transfer is under the Hindu Law or the general Law. When a person agrees to partition the joint property whereby the other co-owner acquires the entire immovable property, he creates an interest of such co-owner in the immovable property because but for this arrangement the said co-owner could not have acquired the remaining share. Therefore, such an arrangement will be covered by sections 15 and 16. Consequently confirmation of such a transaction is necessary, and this confirmation was obtained from Mr. Jaffry the Additional Custodian.
22. ' Mr. Mushtaq has contended that the Additional Commissioner, the respondent No. 2 has no jurisdiction to declare any property as Evacuee Property. This power vests exclusively with the Custodian. Reliance has been placed on 1974 SC Y R 474, PLD 197/ Lah. 390 and PLD 1983 Kar.
353. In view of the legal position discussed above the respondent No. 2 could not have travelled beyond the order passed by the High Court in W.P. 137/58 which in effect maintained the order of Custodian dated 3-3-1951. While exercising the extraordinary constitu tional jurisdiction the High Court has to examine whether the impugned order has been passed without lawful authority. For purpose of determining the status of property the respondent No. 2 could not exercise any jurisdiction and could not go behind the Custodian's order. In these circumstances the learned Single Judge rightly held that the impugned orders were passed without lawful authority. The appeal is dismissed with no order as to costs.