1. MUHAMMAD MUNIR, C. J.-This appeal raises some important issues of law none of which has been considered by the High Court, the Custodian or the Rehabilitation Board.
2. By a deed of partnership, dated the 5th November 1942, Wadhumal Tejumal, Nanikram Hotchand, Chandumal Danomal, Gagandas Hotchand, and Lilaram Nanikram, of the one part, and Kersondas Mulji and Tulsidas Mulji of the other, entered into a partnership-at-will with the object of carrying on the business of general marchants in the name of Messrs T. K Brothers & Company. Parties to the one part were to contribute the entire capital, while those of the other were to act as working partners. The capital contributed was to carry interest at 6% per annum payment of which was not dependent on the earning of profits. Profits and losses of the business were to be shared by the partners in the following proportion:
(1) Wadhumal Tejumal, Gagandas3--annas Hotehand, and Lilaram Nanikram
(2) Nanikram Hotchand 1 anna 4--pies
(3) Chandumal Danomal
(4) Kersondas Mulji5 "
(5) Tulsidas Mulji5 "
3. In the event of any dispute the matter was to be referred and decided under the Indian Arbitration Act for the time being in force.
4. Wadhumal Tejumal died and on 26th April, 1948 a new deed of partnership was drawn up, substituting for the deceased his widow, Mst. Parbati, as a partner in the firm on the same terms and conditions.
5. Mst. Parbati, Gagandas, Hotchand and Lilaram Nanikram left Pakistan some time after April 1948.
6. On the 1st December 1949, the Central Government held that the two Muljis and Nanikram Hotchand were not evacuees. On 7th December 1947, the Custodian, Mr. Akbar Hussain, treating Mst. Parbati, Gagandas Hotchand and Lilaram Nanikram as evacuees made the following order :- "The partnership deed has been produced. It is proved from the deposition of Chandumal Danomal that he is also not evacuee. The following shares are non- evacuee: Karsondas Mulji... Rs. 0-5-0 Tulsidas Mulji... Rs. 0-5-0 Nanikram Hotchand... Rs. 0-1-41 Chanduram Danomal... Rs. 0-1-41 The remaining 4-- annas share is evacuee. The non-evacuee partners shall be responsible for giving accounts and depositing the profits for the Evacuee Shares of 3--annas."
7. On 4th January 1952, the Rehabilitation Bo-rd allotted the evacuee share to Begum Syed Yusuf Ali and Begum Jalal Pirzada in equal shares, subject to the following conditions: "The concern will continue to be run and managed by the present management; but the two allottees will be entitled to the net profits equal to their shares of allotment with effect from 7-12- 1949 the date on which the above share of the concern was declared by the Custodian to be evacuee property."
8. Kersondas Mulji and Tulsidas Mulji on behalf of the Firm T. K. Brothers & Co. Made an application for the revision of this order to the Custodian but by his order dated the 20th May 1956, Mr. Mansur Alam who bad by now taken the place of Mr. Akbar Hussain dismissed the petition by the following order: "Admittedly 3-- annas share of the partnership was declared as evacuee by Mr. Akbar Hussain as far back as 6th December 1949 and yet no accounts have yet been furnished by T. K. Brothers in respect of this evacuee share. This evacuee shar stands allotted to a refugee.
9. It was argued by Mr. Fazlur Rahman that partnership is a relationship and a personal right and not property. It is however overlooked that a right to partnership carries with it a right to a rateable share in the assets belonging to the partnership and in the income earned by the partners and having regard to the wide definition of the term `property' it would clearly be a property.
10. It was then urged that no one can compel the partners to accept anyone else as a partner and accordingly it is argued that the allottee cannot be forced on the applicant as a partner. The argument, however, is fallacious inasmuch as it assumes that some one else is being substituted as a partner in place of the evacuee. The legal position, however seems to be quite different. On a person becoming an evacuee the Custodian step would not be case of a new partner continuing in the form of the Custodian. The allottee has been introduced not as a new partner but as an agent of the partner which the Custodian is.
11. On the whole, I see no merits in the revision and there seems absolutely no reason why the applicant should not render accounts. The revision is dismissed and the Deputy Custodian shall take all necessary steps to see that proper accounts are rendered by the applicant without much delay."
12. Not being satisfied with the arrangements Messrs T. K. Brothers made a petition under section 170 of the Constitution of Pakistan before the Karachi Bench of the High Court of West Pakistan against the Custodian of Evacuee Property, the Rehabilitation Commissioner and the two allottees. The ground taken in this petition was that the partnership of 26th April 1948, that accounts between the partners had been settled and the Firm in which the evacuees were supposed to have had a share had ceased to exist and had been replaced by a new partnership between Kersondas Mu1ji and Tulsidas Mulji, the working partners, and Nanikram Hotchand Chandumal Danomal, the capitalist partners, that the share of the evacuee partners in the assets and liabilities of the Firm had bean taken over by Nanikram Hot--chand. It was further alleged that partnership being a personal relationship the Custodian could not make himself or the allotees partners in the Firm, and that if he could, he was subject to the liabilities of the evacuee partners. In the end, it was prayed that a writ of prohibition or certiorari to quash the proceedings or a writ of mandamus or any other appropriate writ may be ordered to be issued against the respondents. This petition came up for hearing before Muhammad Bachal and Z. H. Lari, JJ. Who by their order dated the 10th July 1956 dismissed it summarily, remarking: "The order of the Custodian is not on the face of the record illegal. It is open to the petitioner to file a regular suit and get complete remedy". It is from this order that the present appeal has been presented by special leave.
13. If the view taken by the High Court, that the appellants had their remedy in a civil Court by the procedure of a suit, had been correct we would not have interfered, but it seems to us that the order of the Custodian by which he declared the evacuees' interest in the partnership to be evacuee property could not, under the law, be called in question in a civil Court, the law in force at the time of the Custodian's order being the Pakistan (Administration of Evacuee Property)
14. Ordinance, 1949, section 34 of which ousted the jurisdiction of the civil Courts to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property. This provision has remained in force throughout, being one of the basic provisions of evacuee law, and has been enacted as section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. Now if a suit by the appellants does not lie and the High Court refuses to interfere there is an obvious possibility of justice having been denied to the appellants, if they are right in their contention that the order of the Custo--dian and the subsequent order of the Rehabilitation Board were wrong in law and had the effect of adversely affecting their property.
15. One of the points raised before the High Court was that the partnership, a share of which had been allotted to the two ladies on the ground that it was evacuee property, did not exist because it had been dissolved by means of a notice and settlement of accounts on 31st October 1948, and that thereafter a new partner--ship had been entered into between the two Mu1jis and Nanik--ram Hotchand and Chandumal Danumal which was in existence at the time of the Custodian's order, the correctness of which was called in question in the High Court. Some documentary evidence in support of this allegation appears in the paper book, but as suggested by the respondents to this appeal it may have been subsequently manufactured. We can give no finding on this part of the case and if this plea had been taken before the Custodian it was obviously his duty to consider it.
16. The record of the Custo--dian's proceedings is not before us and the order that he actually made does not show that any new partnership was relied on before him. His order is very brief, and is quite consistent with there having been or not having been a plea to this effect, but since the question had been directly raised and a suit did not lie, the High Court should have examined it in order to do justice.
17. The second important point now raised and which should have been present to the mind of the Custodian and the Rehabili--tation Board is, whether when some partners of a firm become evacuees the Custodian can take their place in the constitution of the firm. A partnership is not created by statute and is a personal relation between the several partners. If, as seems to have been supposed by Mr. Mansur Alam, the Custodian steps into the shoes of the outgoing partner and by a fiction of law the other partners and the Custodian continue to constitute the partnership then, as admitted by the learned Attorney-General whose assistance we sought in the solution of the difficult questions that arise in these proceedings, the Custodian would be subject to all the incidents of partnership including his liability to contribute to the capital and losses of the partnership and to attend to the business of the partnership. It is perfectly clear to us that in the present case the Custodian intended to undertake no such liability and that what he thought was that the two allottees, without any corresponding liability, would share the net profits of the partner--ship. This seems to us to be clear from the direction given by Mr. Akbar 'Hussain and the Rehabilitation Board, that the concern shall continue to be run and managed by the non-evacuee partners and that the share in the profits of the business shall be paid to the allottees. The position would have been perfectly simple if the Custodian, as the representative of the outgoing partners, had chosen to terminate the partnership and declared the share of the outgoing partners in the net assets of the firm as evacuee property. But he did nothing of the kind and deemed it fit to substitute himself in their place as a partner, without being alive to the responsibilities that he was thus assuming. We, therefore, think that the best course in the circumstances is to quash the order of Mr. Akbar Hussain dated the 7th December 1948, and the order of the Rehabilitation Board allotting to the two ladies a share in the running concern and to issue to the Custodian follow--ing directions :-
(1) He should first decide whether the partnership a share in which has been allotted to the two refugee ladies had ceased to exist when the order of 7th December 1949 was made. If he finds that the partnership had been dissolved and another partnership of which none of the partners was an evacuee was functioning, then the order of the 7th December 1949 and the subsequent order of the Rehabilitation Board dated the 4th January 1952 must both be held to be illegal.
(2) If the Custodian finds that on the date of that order no new partnership had been formed and that the old partnership was in existence and functioning then he should examine the question whether a share in future profits without any cor--responding liability could be allotted to the two ladies. In case he holds that such allotment is possible in law, he should con--sider the advisability of his undertaking the liabilities which, the learned Attorney-General admits, devolve on him of contribut--ing to the capital and the losses of the firm which is liable to.
(3) It seems to be common ground that the original firm does not now exist. If the Custodian agrees with this and holds that the partnership has come to an end, he should ascertain what interest in the net assets the evacuee partners on the date of the dissolution had which can be held to be evacuee property and whether they were competent under the evacuee law to transfer their rights and liabilities to Nanak Ram Hotchand in the manner in which the appellants allege they did.
18. He will deal with these questions and others if any arise or are raised and then pass a considered order. Of course it will be open to him, if he so likes, not to pursue the matter further. In the circumstances of the case we direct the parties to bear their own costs throughout.