KHALIL-UR-REHMAN KHAN, J.--This judgment will dispose of this petition (W.P. 521-R/77) as well as seven other petitions (W.Ps. 1300-R/77, 324/R-78, 325-R/78, 563-R/78, 693/R-78, 760-R/78 and 803/R-78) as in all these petitions, questions of fact and law involved are one and the same.
2. The facts necessary for appreciating the controversy raised in these petitions are that the land measuring 310 kanals and 15 marlas situated in village Hardo Chicharwali, a suburb of Gujranwala city belonged to one Gandha Singh and on his death in 1943 the land in dispute was mutated vide mutation No.483 in the name of Amar.Singh, his only son who also died issueless on 2-11-1945 and the land in dispute was mutated in the name of Harnam Kaur, his mother under Custom as widow of Gandha Singh till death or re-marriage vide mutation No.512 dated 22-3-1946. This mutation, was challenged by Balwant Singh and others, the reversioners of Gandha Singh by filing a civil suit contending that Mst. Harnam Kaur had lost the right to maintenance as widow of Gandha Singh as she had remarried by way of Chaddar Andazi. The suit was compromised on 28-11-1946 whereby the reversioners, respondents Nos.5 to 8 agreed to (i) deposit Rs.2600 for the marriage of Gurbachan Kaur daughter and (ii) to deliver three Manis of paddy within one week of Lohri and three Manis of wheat without barley at the end of month of Haar in every year to Harnam Kaur till her death or remarriage. It was further agreed that in case of non-compliance of the terms of compromise Harnam Kaur would be entitled to take the possession of the land.
3. The reversioners deposited Rs.2600 with the Civil Court (Imperial Bank of India) for payment to Gurbachan Kaur and Rs.151 for payment to Harnam Kaur as cost of the yearly crop entitlement on 18th January, 1947. Mst. Harnam Kaur withdrew the sum of Rs.151 without any objection on 12th February, 1947. The reversioners thus complied with the compromise decree in full and on Partition of the Sub Continent, migrated to India.
4. Mst. Harnam Kaur widow and Mst. Gurbachan Kaur, the daughter of Gandha Singh remained in Pakistan and as they embraced Islam, were named Noor Begum and Khurshid Begum respectively.
Mst. Noor Begum is respondent No.1 and is the main contesting respondent. It appears that she on 11th March, 1948 moved the Civil Court claiming delivery of possession of the land in dispute on account of non-compliance of the terms of compromise and the Civil Court granted warrant of possession dated 12th March, 1948 which was returned with the report dated 3rd April, 1948 that possession has been delivered.
5. The land in dispute was treated as evacuee property by the Rehabilitation Authorities and was allotted to various refugees in the years 1953 to 1955. Some of these allottees sold and transferred that land received in allotment to others. The petitioners are either the allottees or vendees from allottees or their successors-in-interest.
6. Mst. Noor Begum respondent No.l in 1953 filed a petition under Section 18 of the Pakistan Administration of Evacuee Property Ordinance, 1949 seeking declaration that she is not an evacuee and that the land in dispute is also not an evacuee property. This petition was decided by Mr. Zia Ullah Khan, the then Deputy Custodian vide order dated 19th January, 1954 holding that (i) Mst.
Noor Begum is not an evacuee; (ii) the land in dispute is evacuee property and that (iii) there is a charge on the said evacuee property of three Mams of paddy and three Manis of wheat payable every year to Mst. Noor Begum. This order was confirmed by the Deputy Custodian (General) vide order dated 8th February, 1955 with the following observation:- "All that she is entitled is that she be paid 3 Manis of Wheat paddy a week after Lohri and 3 Manis of wheat in Harr every year. The Rehabilitation Authorities when making an allotment of this land shall ensure that this part of the compromise is carried out and she is duly paid the paddy and wheat. In case this payment is not made it will be open to the petitioner to come to the Custodian and seek appropriate remedy, when the whole position shall be reviewed." These orders were not interfered with by the then Custodian (Mr. Justice Khurshid Zaman) as the revision filed by Noor Begum respondent No.l was dismissed by him vide order dated 12-9-1955. The review petition was also dismissed by the Custodian (Mr. Justice A.M. Jan) vide order dated 2nd December, 1956. He, however, directed that Rs.2600 deposited by the revisioners with the Civil Court be paid to Khurshid Begum (Gurbachan Kaur) as she has attained majority. The amount was accordingly withdrawn by Khurshid Begum on 28th March, 1959.
7. Mst. Noor Begum after remaining silent for about nine years again moved a miscellaneous application in 1965 before the then Custodian for payment of maintenance allowance and restoration of possession. This application was dismissed on 18th February 1967 with the observation that the Rehabilitation Authorities may be approached for seeking implementation of the order dated 19-1-1954 as regards payment of maintenance allowance. Mst. Noor Begum at this stage also filed nine appeals against the orders of allotment passed in favour of various refugees.
These appeals were disposed of by the then Additional Rehabilitation Commissioner vide order dated 13th July, 1968 with the observation that possession of the land should not be transferred to the fresh allottees unless and until the condition is not fulfilled and that her appeal to the extent that order of the Civil Court should be given effect to, is accepted. The allottees preferred four revision petitions against the aforesaid order dated 13-7--1968 and the Settlement Commissioner dismissed the same vide order dated 8--10-1969 with the observation: "I find nothing wrong with the impugned order and hold the view that the property in question will continue to be treated as evacuee and the order of the Civil Court will continue to be implemented unless it is set aside on civil side."
Another revision petition filed by Mst. Noor Begum seeking restoration of possession was also dismissed by the Settlement Commissioner on the same date i.e. 8-10-1969 under a separate order.
8. Mst. Noor Begum respondent on 13th February 1971 moved yet another application under section 22 of the Administration of Evacuee Property Act 1957 for declaration that she is the owner of the land and that the land in dispute is not evacuee property. This petition was accepted with the following observations by the Deputy Custodian vide order dated 9-1-1973:- "The upshot of the discussion is that the petitioner who is a widow of 70 years of age should not be deprived of her limited interest of possession or recovery of maintenance as stipulated in the compromise decree as the Rehabilitation Authorities have failed to pay her maintenance as fixed in the compromise decree and approved by the Custodian Authority it is incumbent to leave whole possession and to order and declare that the petitioner is entitled to have possession of the land in question till her death after which the property would automatically become an evacuee property.
Since the petitioner's main grievance was against the Rehabilitation and allottees were not made parties to the suit their possession cannot be upset without giving them notice as required by law ..................................................................................................Rehabilitation Authorities should issue a notice to the allottees and make them realize that if maintenance already agreed in the compromise decree is not paid within 30 days of receipt of notice by them the possession of the land will be handed over to the petitioner and their allotments will have to be cancelled as no permanent allotment can be made of land in question till life time of the petitioner after which automatically the status of the property would become that of an evacuee property."
Learned Custodian to whom the file was forwarded for confirmation of the order of the Deputy Custodian confirmed the same vide order dated 6-8-1973 with the observations recorded therein.
The observations which are pertinent for the purposes of the present controversy are being reproduced for ready reference: "There is no doubt that the property in question was in the possession or ownership of the collaterals of Amer Singh who have since become evacuees, but on account of the decree passed by the Civil Court there is a charge over the same created in favour of the petitioner. If the terms and conditions as agreed upon between the parties i.e. The petitioner and the collaterals of Amer Singh, are not fulfilled then the petitioner is certainly within her right to take over the possession of the land and remain in possession thereof till her death or remarriage. I am of the view that in the presence of the civil decree passed on the basis of the compromise between the parties, there was no need for the petitioner to approach the Custodian or any other authority to seek the necessary declaration in her favour. All the authorities concerned were bound to honour the said decree unless it was proved that the same had been set aside by some competent authority. As mentioned above, the learned Civil Judge, Gujranwala, Ch. Muhammad Tufail had ordered for the restoration of the possession of the land in question to the petitioner, the warrant of delivery of possession in the execution proceedings started by her. According to the petitioner she was put into the possession on 3-4-1948 and necessary mutation was also entered on 5-11-1949. If it is so then the Rehabilitation authorities were not competent to allot the land in favour of any displaced person, in the absence of the said order of the Civil Court having been set aside by some competent authority.
8-A.The allottees of the land in question were not made party in the present proceedings before the learned Deputy Custodian. However, in order to get over this difficulty, the learned Deputy Custodian has rightly held that since they are in possession of the land, therefore, they should be issued notice by the Rehabilitation Authority i.e. Settlement Commissioner (Land) Lahore Division, Lahore to pay the maintenance out of the produce of the land in question right from the period when they were put into possession of land, failing which their allotment of land would be liable to be cancelled and the petitioner would beentitled to be put into possession of the land in accordance with the decree passed by the Civil Court on the basis of the compromise as mentioned above. The notice to be issued to the allottees may be for a period of three months instead of one month as observed by the learned Deputy Custodian." The findings recorded by the learned Custodian are:-
(1) the land in question was in possession or ownership of the collaterals of Amar Singh who have since become Evacuee;
(2) there is a charge over the land in dispute on account of decree of the Civil Court;
(3) If the terms and conditions of decree are not fulfilled Noor Begum is entitled to take over possession of the land and remain in possession thereof till death or remarriage;
(4) In the presence of compromise decree, there was no need to approach the Custodian or any other authority to seek necessary declaration;
(5) If Noor Begum was put in possession by Civil Court and mutation was entered, Rehabilitation Authorities were not competent to allot land in favour of displaced persons unless the said order of possession was set aside by some competent authority;
(6) As allottees were not parties to these proceedings, the difficulty to be got over by issuing notice to pay the maintenance since date of allotment.
It is pertinent to point out here that from the findings that the collaterals of Amer Singh Evacuees were owners and in possession and the maintenance agreed by them was charge on the land in question, it clearly follows that the land in question, was Evacuee Property and that the view of the Deputy Custodian that land on remarriage or death of Mst. Noor Begum would become Evacuee Property was not upheld by the learned Custodian.
9. The file of the case was then sent for necessary action to the Settlement Commissioner (Lands)
Lahore Division, Lahore, who in turn forwarded the same tothe Deputy Commissioner/Additional Settlement Commissioner (Lands) Gujranwala for compliance. This officer reported vide report dated 30-12-1975 that as per report of the Tehsildar Assistant Settlement Commissioner (Lands) the allottees of the land have failed to turn up in spite of service of notices and that they have also not paid any maintenance to Noor Begum in accordance with the decree of the Civil Court and the order of the Custodian. The Settlement Commissioner, Lahore Division, Lahore, took cognizance of the matter and directed issuance of notices to allottees and as is apparent from the order passed by him, only five allottees namely Abdul Ghani, Rashid, Akbar, Javed lqbal and Akbar Ali entered appearance through their counsel Ch. Faqir Ullah, Advocate who also represented some of the vendees in possession. It may be noted here that the assertion of the petitioners that they were neither impleaded as party to the proceedings before the Settlement Commissioner nor any notice of the proceedings was issued to them, was not controverted before us by the respondents. It further appears that the allottees or the vendees from the allottees who had entered appearance in the proceedings before the Settlement Commissioner sought adjournment on 17-3-1977 as they had submitted an application to the Chief Settlement Commissioner for transfer of the case to some other Settlement Commissioner. The matter was adjourned to 26-4-1977 for further orders.
The transfer application was dismissed by the Chief Settlement Commissioner on 25-4-1977. The respondents in the proceedings before the Settlement Commissioner did not appear on 26-4-1977 and the Settlement Commissioner observing that the respondents have already been heard at length, proceeded to dispose of the matter and vide order dated 27-4-1977 resumed the land from the allottees and ordered restoration of the same to Noor Begum respondent in accordance with the terms and conditions of the compromise decree dated 28-11-1946 by recording the conclusion that the allotments of the land in dispute were defective and allottees concerned had failed to comply with the terms and conditions of the compromise decree. So as to complete the factual history of the case, it may also be mentioned that the petitioners filed the constitution petition (WP.
521-R/77) on 28-3-1977 during the pendency of the proceedings before the Settlement Commissioner, Lahore Division, Lahore. It is pertinent to note at this stage that by invoking provision of Article 245 of the Constitution and the Defence of Pakistan Act, Armed Forces were called upon to act in aid of civil power on 21st April, 1977 and curfew was imposed in Lahore and on 23rd and 24th April, 1977 curfew restrictions were relaxed for a few hours. Again on 25th and 26th April, 1977 curfew restrictions were relaxed from 4.00 a.m. To 12.00 noon. The learned counsel representing the allottees and vendees who had joined the proceedings sent on 26th April, 1977 telegrams to the Settlement Commissioner and the High Court for adjournment on the ground that due to curfew restrictions, he is not able to appear and prosecute the matters respectively pending before them.
The petitioners who had filed the petition (WP. 521-R/77) were 14 in number, some of them subsequently have withdrawn from the petition and as such their names have been deleted. This writ petition was amended so as to impugn the order dated 27-4-1977 passed by the Settlement Commissioner, Lahore Division, Lahore during the pendency of writ petition and now the orders finally impugned are order dated 9-1-1973 of the Deputy Custodian, order dated 6-8-1973 of the learned Custodian and the order dated 27-4-1977 of the Settlement Commissioner, Lahore Division Lahore. The other petitions mentioned above were filed subsequently by other petitioners.
10. The learned Judges while admitting the petition (WP.521-R/77) on 24-5-- 1977 directed the petitioners "to deposit Rs.17353 the amount representing the maintenance on account of right of limited estate-holder for disbursement to the limited estate-holder on her furnishing surety." This amount as is noted in the order dated 31-5-1977 was deposited with the Registrar of this Court and accordingly the possession of the allottees or transferees from them was orderednot to be disturbed subject to notice. This matter of stay did not come up before the Court for disposal and is as such still pending. It may further be noted that during the pendency of this petition Noor Begum respondent has sold to different parties, a sizeable part out of the land m dispute and has thus collected considerable amount of money. This information was laid through submission of applications as well as by initiating contempt proceedings which matter is being dealt with separately.
11. Messrs MAnwar Bhindar, Iftikhar Ali Syed and Mr. Abid Hassan Minto, Advocates submitted arguments on behalf of the petitioners. Mr. A.R. Shaukat, Advocate for respondents Nos.9 to 18 supported the case of the petitioners. The main contentions raised were (i) the petitioners who are allottees or vendees from the allottees were condemned unheard as they were neither impleaded in proceedings throughout nor were granted opportunity of hearing either by the Deputy Custodian or the Custodian or the Settlement Commissioner; (ii) that the second and third applications under Section 22 of Administration of Evacuee Property Act, 1957 were incompetent, in any case these could not be entertained in the year 1973 and neither the Custodian nor the Deputy Custodian could review the orders passed previously; (iii) that the property having gone into the Compensation Pool and having been permanently settled on the allottees, the Custodian authorities stood divested of the jurisdiction and as such the orders passed are without lawful authority; (iv) that the Deputy Custodian as well as learned Custodian had no authority to give finding as to the legality of the allotment and that they acted illegally in directing the Settlement Commissioner/Rehabilitation Commissioner to issue notices to the allottees; (v) that the allottees are not liable to pay any amount as the property vested m the Compensation Pool free of all charges and encumbrances and hence any such charge even if earlier existed, stood extinguished on issuance of Notification under Section 4 of the Displaced Persons (Land) Settlement Act 1958;
(vi) that Noor Begum respondent at best could claim the amount of the so- called charge from Chief Settlement Commissioner out of the Compensation Pool under the Satisfaction of Charges Land Settlement Rules 1962.
12. The petitions were contested by Mst. Noor Begum respondent alone as no one entered appearance on behalf of Settlement and Rehabilitation and Custodian Authorities as well as the Reversioners. Mr. Ahmad Saeed Kirmani, Advocate for Mst. Noor Begum submitted that position of Noor Begum respondent is that of a Muslim Local lady and as such the legal status of the property as well as that of Noor Begum respondent is to be seen and determined with reference to Ist of March, 1947. He added that the rights vesting in her cannot be declared "Evacuee Property". She was a Muslim local and was delivered possession on 3rd of April, 1948 in pursuance to the warrant of possession issued by the Civil Court and the possession so delivered should be acknowledged, recognized and maintained. According to the learned counsel the General Order dated 23-12-1947 passed by the Custodian taking possession of the Evacuee property was ineffective to divest Noor Begum of her possessory rights; that non-evacuee interest in any case was neither resumed nor could legally be resumed and as such the allotments made were void ab initio and the Custodian authorities were right in holding and declaring the allotment of the land illegal and void. It was added that as the allottees were neither necessary nor proper party to the proceedings, as such they were rightly not granted an opportunity of hearing. He added that the Rehabilitation Department was necessary party which was admittedly before the authorities and was heard.
Learned counsel added that the impugned orders were passed competently and that the Authorities had in fact redressed the grievance of Noor Begum, the poor old lady and as substantial justice has been done interference in extraordinary jurisdiction would not be warranted.
He pointed out that the learned Judges of the Division Bench in writ petition No.760-R/78 have observed that the authorities have taken 30 years to extend justice to the respondent and hence, he argued these petitions merit to be dismissed with cost.
13. We have given serious consideration to the respective submissions of the parties and have also gone through the impugned orders and the other record of the proceedings placed on the files as well as the one made available by the parties during the hearing.
14. We agree with Mr. Ahmad Saeed Kirmani, learned counsel for Mst. Noor Begum respondent that in order to determine the legality and validity of the impugned orders, the legal status of Mst. Noor Begum, nature and legal effect of the compromise decree dated 28-11-1946 of the Civil Court and the effect of the Evacuee Laws enforced after the establishment of Pakistan, and change in the character of the land in dispute and in status of Mst. Noor Begum due to her conversion to Islam will have to be gone into. We, however, do not agree with him that effect of these changes is to be determined with reference to Ist of March, 1947. This date is mentioned in Section 20, Act XII of 1957.
This section provides that creation or transfer of any right or interest in or encumbrance on any property made on or after Ist day of March 1947 by or on behalf of an Evacuee shall not be effective unless confirmed by the Custodian. Similar provisions existed in the earlier Evacuee Laws also. This date as is apparent is not relevant in the present controversy. The legal status of Mst. Noor Begum and the rights claimed by her will have to be determined with reference to the date of the initiation of the proceedings before Civil Court, the Custodian Authorities and the Settlement and Rehabilitation Commissioner.
15.In this context the relevant facts to be noted are that Mst. Noor Begum respondent before embracing Islam was widow of Gandha Singh and on the death of Amer Singh the only son of Gandha Singh had succeeded under the then prevailing custom as widow of Gandha Singh and not as mother of Amer Singh. For understanding the true nature of, the capacity under which she held the land reference is invited to observations made in the case of Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others PLD 1971 SC 791 as follows: "It is now well settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law (vide Rattigan's Digest of Customary Law, 13th Edition, page 787). If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for this reason that it is said that during the time the widow is alive or does not re-marry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. "Hindu Law", according to J.D. Mayne, "Knows nothing of estate for life, or in tail, or in fee. It measures estate not by duration but by use .... The restrictions upon the use of an estate inherited by a woman are similar in kind to those which limit the powers of a male-holder, but different in degree. The distinctive feature of the estate is that, at her death, it reverts to the heirs of the last male owner. She never becomes a fresh stock of descent."
The observations made further at page 806 of the report being relevant are also being reproduced: "A Hindu widow's estate is, therefore, neither an estate for life nor the estate in tail nor an estate in fee simple. This difference arises from the anomalous character of her estate in her husband's properties. It is because of this fact that the peculiarities emanate and it is for this reason that it is said that she is neither a trustee for the reversioners nor do the reversioners have any present interest in the properties until the widow's estate terminates. Their position is at best that of a person having a spes succession is or an expectancy of succession. Even under the Hindu concepts, therefore, the whole estate of the last male owner for the time being vests in the female heir like a widow or a mother and she represents the estate completely and so long as she is alive no one has any vested interest in the succession."
The land in dispute being the property of Gandha Singh the last male owner, thus vested in Harnam Kaur the widow for the time being and she represented the estate completely but this status was abandoned by her in the suit filed by the reversioners as under the compromise she abandoned her limited estate and instead agreed to receive three Manis of paddy and three Manis of wheat. It would be noted that the right to receive the possession on account of any default in delivering the fixed quantity of grain was not in the nature of customary limited estate but only a right to recover the agreed quantity of grain. This right to recover the possession would come to an end as soon as the requisite quantity of grain is delivered. The decree dated 28-11-1946 cannot be interpreted in any other manner as it was not the condition that on failure to pay the agreed quantity of grain the suit shall stand dismissed or the decree would be deemed to be a decree of dismissal of suit. Thus compromise decree entitled Harnam Kaur to receive the fixed quantity of grain till her death or remarriage and this entitlement was conceded by the reversioners of Gandha Singh to the widow of Gandha Singh namely Harnam Kaur and to none else. This is at best the right which thus vested in Harnam Kaur under the decree dated 28-11-1946. It was not in any sense Customary Limited Estate of a widow.
16. Now the question whether Mst. Noor Begum respondent after embracing Islam could claim in 1948 the rights vesting in Harnam Kaui as widow of Gandha Singh under the decree? Mst. Noor Begum had admittedly embraced Islam before institution of the execution application by her. The right to receive fixed quantity of grain till remarriage or death was conceded by the Hindu reversioners and was based on the agreement of the parties to the suit and not on any rule of customary law which essentially was the extension of Hindu Law. This right of the widow was thus subject to the law of contract. The question still arises whether the right conceded to a Hindu widow could be claimed by Noor Begum after embracing Islam. Hindu Law, the personal law of Noor Begum before her conversion contemplates forfeiture of right of persons who are deprived of caste on account of their renouncing or being excluded from Hindu religion. The disabilities due to which a person is excluded from inheritance given in para 596 of Mayne's "Treatise on Hindu Law and Usage" 10th Edition are: "Manu states the following grounds of disqualification "Impotent persons and outcasts, persons born blind or deaf, the insane, the idiot and the dumb as well as those deficient in any organ (of action or sensation) receive no share."
17. The Hindu Inheritance (Removal of Disabilities) Act (XII of 1928)1 amended the rule of Hindu Law relating to exclusion from inheritance on the I grounds of disease, deformity, physical or mental defect except that of insanity since birth. The pertinent point to be noted is that under custom as well as under , Hindu law a Hindu after conversion to other religion forfeits right to succeed to property of his Hindu collateral or ancestor. The same is the position of Muslim Law. A Muslim does not inherit from a non-Muslim nor does a non-Muslim A inherit from a Muslim. (Fatwai Alamgiri Vol. VI page 631). Article 125 of Institutes of Mussalman Law by Nawab Abdur Rahman, is to the effect that difference of religion deprives the husband of all right to inherit his wife's estate and wife of all right to inherit her husband's estate. Thus conversion to Islam according to Muslim law also, brings about a complete change as regards the right of inheritance. But the rules of exclusion from inheritance of Hindu as well as Muslim Law and forfeiture of rights otherwise on account of renouncing the religion, were rendered ineffective and unenforceable in British India by extending the principle of Section 9 of Bangal Regulation No.VII of 1832 by enacting 'The Caste Disabilities Removal Act 1850 (XXI of 1850). This Actprovides that: "1. So much of any law or usage now in force within the territories subject to the Government of the East India Company as inflicts on any person forfeiture of rights or property, o; may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in the Courts of the East India Company, and in the Courts established by Royal Charter within the said territories."
18. This provision was declared to apply whenever in any civil suit the parties; may be of different pursuasions, when one party shall be of Hindu and the other of Muhammadan pursuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu pursuasion, the law of these religions shall not be permitted to operate to deprive such party or parties of any property to which but for the operation of such laws they would have been entitled. It may be added that by Section 3 of the Laws Local Extent Act 1874 (Act XV of 1874), the application of various laws including the "Caste Disabilities Removal Act, 1850" then extending to the territories of Government of East India Company, were extended to whole of British India except to scheduled districts. Then by Adaptation Order 1949, the expression "the whole of British India" was substituted to read as "all the Provinces and the Capital of the Federation", and the latter expression was replaced by the word "Pakistan" by Central Laws (Statute Reform Ordinance 1960 (21 of 1960). It will also be noted that in view of above changes the expression "of the East India Company and in the Courts established by Royal Charter within the said territories" appearing after the words "to be enforced as law in Courts" in Section 1 of Act XXI of 1850 as amended in 1963 by Act X of 1963 will have to be replaced and adopted by the word "Pakistan". Section 1 would, therefore, be read as: "1.So much of any law or usage now in force within Pakistan as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in the Courts of Pakistan: Provided that nothing contained in this Act shall apply to the rights of inheritance to the property of a Muslim."
Appropriately the Legislature should have through legislation amended the aforesaid Section as was done in India by substituting the words "in any Court" for the expression "in the Courts of the East India Company and the Courts established by the Royal Charter in the said territories" through Part B States (Laws) Act 1951(3 of 1951). See A.I.R. Manual, Vol.I, Page 856. Reverting to the Act XXI of 1850 it will be seen that by this enactment, the Legislature virtually set aside the provisions of Hindu and Muslim Law which excluded the person from inheritance on account of renunciation of religion or exclusion from caste. Accordingly neither a convert to Islam or Christianity nor one deprived of caste forfeits his existing interest in the joint family property or other rights or property. This Act XXI of 1850 as amended by West Pakistan Act X of 1963 still exists on the statute book of Pakistan. It is, therefore, apparent that Mst. Noor Begum respondent despite conversion could claim the right reserved to her under the decree dated 28-11-1946.
19. The other question, whether the Civil Court could entertain, adjudicate and grant relief of possession in execution of the decree to which Evacuees were party may now be attended to. For answering this question, it will be appropriate to notice the laws pertaining to Evacuee property enforced since partition. The West Punjab Evacuee Property (Preservation) Ordinance 1947 (V of 1947) was the first legislation on the subject. This Ordinance was repealed and replaced by West Punjab Protection of Evacuee Property Ordinance 1947 (VII of 1947) promulgated on 1-12-1947 and the same was then replaced by the West Punjab Protection of Evacuee Property Act, 1948 (VII of 1948) which was promulgated on 19-2-1948. Later on the Central Government promulgated the Pakistan Protection of Evacuee Property Ordinance (XVIII of 1948) which in turn was succeeded by Ordinance XV of 1949. The last in the series was the Pakistan (Administration of Evacuee Property)
Act, XII of 1957. These laws were with respect to administration of evacuee property. On the Rehabilitation side, the Pakistan Economic Rehabilitation Ordinance 1948 was enforced, which was succeeded by Pakistan Rehabilitation Ordinance XIX of 1948 as amended by Pakistan Economic Rehabilitation (Amendment) Ordinance 1949. This Ordinance was replaced by Pakistan Rehabilitation Ordinance XVII of 1956 Finally Pakistan Rehabilitation Act 1956 (XLII of 1956) was enforced. The settlement operations with regard to the evacuee agricultural land were commenced by promulgating the Displaced Persons (Land) Settlement Act 1958. These laws were then repealed by Evacuee Property and Displaced Persons Laws (Repeal) Ordinance 1974 (XV of 1974), and the law finally enforced was "the Evacuee Property and Displaced Persons Laws (Repeal)
Act 1975 (XIV of 1975)'.
20. At this stage, it will be pertinent to recapitulate a few relevant facts for the purposes of determining the effect of Evacuee Laws. These are as follows:- The learned Custodian vide order dated 23-12-1947 assumed possession of all the evacuee properties, whether movable or immovable where so ever in West Punjab under sub-section (1) of Section 4 of Ordinance VII of 1947. Mst Noor Begum admittedly embraced Islam soon after the establishment of Pakistan. She submitted an execution application complaining non-payment of the value or the fixed quantity of grain by the reversioners on 11-3-1948 in Civil Court at Gujranwala.
On this date the West Punjab Protection of Evacuee Property Act 1948 (VII of 1948) enforced w.e.f.
19-2-1948 held the field. The land in dispute on 14th August, 1947 vested in Hindu reversioners and possession was also with them. This land as such under the order dated 23-12-1947 vested in Custodian who had also assumed possession thereof. Section 11 of the Act VII of 1948 bars the jurisdiction of Civil Court even to entertain or adjudicate an execution application in respect of evacuee land. Section 11 reads as under: 11.Jurisdiction of Civil Court barred in certain matters: (1) No Court shall entertain or adjudicate on a 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 except m the case of a claimant who has been referred to the Civil Court under Section 17 of the Act for establishment of his title.
(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 m the property in question.
(3) All property of which the Custodian has assumed possession or control under section of this Act, shall be exempted from attachment or sale in execution of a decree of a Civil Court or. In pursuance of an order issued by any Court. Moreover the jurisdiction of Civil Court stood impliedly barred in view of provisions of Section 13 of the aforesaid Act VII of 1948. The relevant provisions are as under:- 13.Powers of Custodian.--The Custodian shall have power--
(a) ................
(b) ................
(c) ................
(d) out of any money belonging to an evacuee in his possession or out of the income or proceeds of sale if necessary of evacuee property to pay (i)
(ii) sums due to a person having a claim against the person or property of any evacuee, if the claim in opinion of the Custodian does not involve any complicated question of law or fact or if the claim is based on a decree or order of a competent Court. Section 14 (2) of Ordinance XVIII of 1948 reads as under:
(2) No decision of any Court on any claim such as is referred to in subsection (1) given between the date prescribed in respect of any area and the coming into force of this Ordinance, shall be binding on the Custodian or shall affect the rights or interests of any evacuee in the property in question.
21. The aforesaid provisions were also contained in the laws enforced subsequently. See Section 14 of Ordinance XVIII of 1948, Section 34 of Ordinance XV of 1949 and Section 41 of Act XII of 1957. The effect of these provisions is that decisions given by any Court or any authority affecting the rights or interest of any Evacuee in the property are neither binding on the Custodian nor are to affect the rights or interest of .The Evacuee in any such property. It is unfortunate that attention of the learned Custodian was not drawn to these provisions. Had these provisions been noticed, learned Custodian in his order dated 6-8-1973 would not have observed that if respondent had been put into possession under the order of the Civil Court, the Rehabilitation Authorities were not competent to make allotment of the land in dispute to the displaced persons." The execution application could not be entertained what to say of passing order of delivery of possession and issuing warrant of possession and that too without issuing notice to the Custodian or Rehabilitation Authorities. It will, therefore, be seen that allotment on account of existence of so-called charge or issuance of warrant of possession or sanctioning of mutation could not be held to be defective in law.
22. These allotments were, on appeal filed by Mst. Noor Begum, held to be valid and binding. We may point out that even if at any subsequent stage a property is declared to be non-evacuee property, the allotments made earlier are not rendered illegal or inoperative. See Section 19-A of Ordinance XV of 1949, Section 24 of Act XII of 1957. The learned Custodian, in the presence of the declaration that the land in question is evacuee property, and after recording the finding that the conditions agreed in the compromise amount only to a "charge" on the land in question could ,pot legally hold that the allotments could not be made to the displaced persons. Again the observation that on non-compliance of the condition as to payment of agreed quantity of grain, which is charge on the property, the possession can be recovered by the respondent till life or remarriage, is illegal being contrary to the position obtaining in law after enforcement of Evacuee laws. It will be seen that right to retain or recover possession on the basis of such a charge existing in favour of a Local was not recognised by Evacuee Laws enforced from time to time. The Rehabilitation Laws, The Rehabilitation Settlement Scheme 1952, The Rehabilitation Settlement Scheme 1956 as well as The Displaced Persons (Land Settlement) Act, do not authorise a local, Muslim or a Hindu, to retain or recover the possession of Evacuee Land on account of any such charge or claim of the nature granted by the compromise decree. The right of a mortgagee of the land alone was recognised.
See para 4-A of the Rehabilitation Settlement Scheme which excluded land mortgaged with possession from allotment. Such mortgages were declared to be treated as a "charge" on the land by adding Section 14-A vide Ordinance XIII of 1964 in Displaced Persons Land Settlement Act 1958.
The existence of mere charge as such did not debar the Rehabilitation Authorities to allot such an encumbered land. It is, therefore, apparent that learned Custodian was, therefore, wrong in observing that in the presence of the charge or order of delivery of possession, the allotments made were defective in law. Before concluding discussion in this respect we may further point out that the observations of the Deputy Custodian as well as learned Custodian that in case of non- compliance of the agreed terms and conditions, Mst. Noor Begum is entitled to recover and retain possession of the land till death or remarriage is the result of non-reading or misreading of the compromise decree. The correct reading of the Decree would show that no such words as "till death or remarriage" have been used where right to recover possession on non-payment of the agreed quantity of grain was conceded. Even otherwise no such interpretation can reasonably be put to the words used in the Decree as has already been shown in one of the paras above.
23. This brings us to the question whether the allottees were liable to pay the agreed quantity of grain to Mst. Noor Begum respondent under the Evacuee Laws; if so, how and when they were made liable; Have they defaulted in paying the maintenance.
The first thing to be noticed in this regard is that throughout the proceedings held before the Custodian authorities in the years 1953, 1954, 1956 and 1967 as well as in the proceedings held before the Rehabilitation authorities, the allottees were never directed to pay the fixed quantity of grain yearly to Mst. Noor Begum respondent. It was only the Deputy Custodian in his order dated 9- -1-1973 and the Custodian in the order dated 6-8-1973 directed that the allottees be notified to pay the maintenance in terms of the compromise decree. The question is, could this direction be made and such a condition be attached in 1973. The Custodian no doubt has the authority under the Law (See Section 14 of Ordinance XV of 1949 and Section 18 of Act XII of 1957) to determine the terms and conditions on which property will be held by allottees. Section 7 (1) of the Pakistan Rehabilitation Ordinance 1948 (IX of 1948) and Section 6 of the Pakistan Rehabilitation Act 1956 empowered the Rehabilitation Commissioner to allot the evacuee agricultural land to persons residents in Pakistan whether refugees or not in accordance with the Scheme to be prepared in this behalf. The Rehabilitation Commissioner, then, in pursuance to the order dated 15-6-1950 of the Central Government prepared the Scheme known as "Rehabilitation Scheme" 1952 Punjab. This Scheme was amended in 1956 and Para. 2 of Chapter lI of the Rehabilitation and Settlement Scheme 1956 provides that all persons who in the prescribed area, owned land or held occupancy or other rights of a similar nature in land as may be specified by the Rehabilitation Commissioner (Lands) from time to time may be allotted land subject to such terms and conditions as may be prescribed by him. Paras. 14 to 20 of Chapter 11 prescribe conditions of allotment. It is true that Rehabilitation Commissioner in exercise of powers vesting in him can impose any other condition or condition of the type sought to be placed by the Custodian in his order dated 6-8-1973 but admittedly the Rehabilitation Commissioner never exercised such power nor prescribed such a condition till the repeal of Evacuee Laws. It will be seen that the learned Settlement Commissioner was right in observing in his order dated 27-4-1977 that the charge was basically on the land and not against the allottees individually and therefore the same is indivisible and it is both anomalous and impracticable to divide the liability created by the Civil Court decree and to effect partial recovery from some of the allottees. In case the Custodian or Rehabilitation authorities were so minded as to honour the decree dated 28-11-1946 the only course open to them under law was to reserve a piece of land measuring 2 or 3 acres out of the land in dispute and to allot the same to Mst. Noor Begum for the purposes of yielding to her the fixed quantity of grain invoking, the powers vesting m them under the provisions noted above, or to order payment of the amount representing yearly quantity of grain out of the Rehabilitation pool under Section 13 (2) (ii) of Act 7 of 1948 or Section 25 (2) (q), (r) of Act XII of 1957.
24. The property being evacuee property was rightly allotted to the refugees in lieu of the land abandoned by them m India and on issuance of Notification dated 15-4-1959 under Section 3 of the Displaced Persons (Land) Settlement Act 1958, the same ceased to be evacuee property and formed part of the Compensation Pool free of all encumbrances. The land so held in allotment by the refugees came to vest permanently in them under Sections 1and 16 of the Displaced Persons
(Land) Settlement Act 1958. The Custodian as such in the year 1973 could not order the Settlement Commissioner, Lahore, to direct the allottees to honour the Civil Court decree or to pay maintenance to Mst.Noor Begum respondent since the date of allotment as the property had come to vest in the claimants/allottees permanently and fully many years ago.
25. Assuming that the land in dispute did not form part of the Compensation! Pool and assuming that the Custodian could attach conditions to the allotments in 1973 still no such order attaching the condition with retrospective effect could be passed. The direction to pay the maintenance since the date of allotment in any case is without lawful authority.
26. In any case the orders passed by the Deputy Custodian and the learned Custodian are not sustainable as the same were passed admittedly without associating the allottees in the proceedings held and without affording them any opportunity of hearing. The observation that this difficulty has been got over by making the direction that allottees be issued notices to pay the maintenance fails to cure the illegality committed. The allottees were necessary party to the proceedings initiated in 1971 before the Deputy Custodian as in the, year. 1971 when these proceedings were initiated and in 1973 when these orders we-re passed, the land as shown above had vested permanently in the allottees claimants or in the purchasers from these allottees. The proprietary rights vesting in them could not be adversely affected without hearing them. The plea that rehabilitation authorities were the only necessary party and that the allottees were not necessary parties is without force. In support reliance may be placed on Syed Ali Abbas and others v. Vishan Singh and others (PLD 1967 S.C. 294) as in the circumstances of the case it was held that allottees had the vested right of hearing. For all these reasons both the impugned orders dated 9- 1-1973 and 6-8-1973 of Deputy Custodian and Custodian are illegal, unwarranted, arbitrary and hence not sustainable. The order dated 26-4-1977 of the Settlement and Rehabilitation Commissioner, obviously cannot stand as it is based and was passed in compliance with the directions given in the orders passed by the learned Custodian. Assuming that the order dated 6- 8-1973 of the learned Custodian' is legal and with jurisdiction, still the order of the Settlement and Rehabilitation Commissioner is unsustainable in law.
The Settlement Commissioner had taken cognizance of the matter in order to comply with the direction made by the learned Custodian to the effect that ninety days notice be issued to the allottees to pay maintenance out of produce of the land in dispute right from the period they were put in possession failing which their allotments would be liable to be cancelled and Noor Begum respondent would be put into possession. This direction necessarily contemplates the working out of the share of maintenance allowance payable by each allottee on the basis of the area of land out of the entire land held in allotment and service of notice demanding payment of the amount so worked out within a period of ninety days. Such an exercise was never undertaken and such a demand notice was never served on any of the allottees or their successors-in-interest, the vendees.
The view of the learned Settlement Commissioner in this respect is apparent from the observations recorded by him in the impugned order on the offer of the allottees who had entered appearance to pay their proportionate share of the maintenance. He observed, "the charge is basically on the land and not against the allottees individually and, therefore, the same is indivisible. It is both anomalous and impracticable to divide the liability created by the Civil Court decree and to effect partial recovery from some of the allottees." The merits of the aforesaid view apart; how would the Settlement Commissioner comply with the direction of the Custodian if each allottee is not to be allowed to pay his proportionate share. The learned Settlement Commissioner thus misdirected himself in not accepting the offer of those allottees and vendees.
The impugned order dated 27-4-1977 having been passed under misapprehension as to true import of direction made by Custodian merits to be quashed. The Settlement Commissioner having not determined the amount payable by each allottee and having not served such a- demand notice on each allottee failed to comply with the order of the Custodian. The notices assertedly served by the Assistant Settlement Commissioner, if any, were of no avail as the essential requirements of the direction were not complied with by the Settlement Commissioner.
The Settlement Commissioner in view of above acted arbitrarily in holding that the allottees are estopped from making the offer to pay the amount at this belated stage i.e. After expiry of the stipulated period of three l months. The view of the Settlement Commissioner that the allottees or their successors-in-interest were bound by the compromise decree of the Civil Courtand that the allottees have failed to comply with the terms and conditions of the decree is also illegal and arbitrary. Admittedly no such condition as to payment of maintenance allowance was attached while making allotment of the land in dispute. The Deputy Custodian (General) in his order dated 8-2-1955 observed that such a condition be attached to the fresh allotments but admittedly all the allotments were made earlier i.e. Between 1952 to 1955. It was because of this that the Deputy Custodian as well as the. Learned Custodian observed that the allottees be served with notice requiring them to pay maintenance allowance since the date -of allotment made to each of them.
The non-compliance of the Civil Court decree as against allottees cannot be alleged as the allottees are admittedly not the successors-in-interest of the Evacuees. This difficulty was sought to be overcome by requiring the allottees to pay the maintenance and on non-compliance of the direction to cancel the allotments. This Scheme and intent of the Custodian was not comprehended and the Settlement Commissioner as such acted illegally in cancelling the allotments. It will, therefore, be seen that the order dated 26-4-1977 of the Settlement Commissioner even independently cannot stand. Thus all the three impugned orders are illegal, arbitrary and unwarranted in law. Learned counsel for Mst. Noor Begum respondent cannot press into service any plea of justice and equity as the respondent by having sold the land unauthorizedly during the pendency of these petitions amassed immense monetary gain. She, therefore, stands disentitled to seek refuge under equitable principle. In fairness she on embracing Islam was to part with three Manis of wheat and three Manis of Paddy which, as a widow, she was to receive from the Evacuees, because that was not much price for coming to the fold of Islam.
Even if she was not prepared to forego that little benefit, the Rehabilitation Authorities are to be blamed, who could not find out the right solution and who could not invoke the relevant provisions of law for making, payment of the yearly maintenance allowance and not the Displaced Persons or the vendees from them. The right to receive yearly maintenance allowance in any case came to an end with the notification issued under Section 4 of the Displaced Persons Land Settlement Act 1958 i.e. When the land went into compensation pool free from all encumbrances.
The net result of the above discussion is that the orders dated 9-1-1973, 6-8-1973 and 26-4-1977 of the Deputy Custodian, Custodian and Settlement and Rehabilitation Commissioner respectively are without lawful authority, illegal and without jurisdiction and hence of no legal effect. These petitions, therefore, succeed and are hereby accepted. Respondent No.l shall also pay the cost of the petitions. The amount deposited by the petitioners under order dated 24th May 1977 shall be returned to them.