' Writ Petitions No, 357 of 1976 and 1449 of 1976 are being disposed of by single order as in both the petitions, the dispute pertains to the entitlement of Mst. Jummi widow of Kapoor who died in India.
2. The property in dispute in both the petitions is agricultural land measuring 104 kanals 8 marlas in village Chachowali Tehsil Narowal, District Sialkot. This land was confirmed in favour of Mst. Jummi in lieu of the claim of Kapoor, her husband. Kapoor was the original owner who died in India leaving behind Mst. Jummi, his wife as his only legal heir in Idnia. She was recorded in Revenue Record relating to pre-partition era as a limited owner under Custom. After partition, a mutation of inheritance in her favour as an absolute owner was recorded and the land in dispute was confirmed. The afore noted facts are not in dispute between the parties.
3. The dispute started when one Nawab Din and Ghulam Rasool filed an application under section 10/11 of the Displaced Persons (Land Settlement) Act whereby it was complained that Kapoor had not migrated to Pakistan, was living in India and that Mst. Jummi had secured the allotment through practicing fraud and misrepresentation.
4. The learned Additional Deputy Commissioner exercising the powers of the Chief Settlement Commissioner vide order, dated 11-11-1975 partly accepted the application, came to the conclusion that Mst. Jummi was the limited owner, that she was only entitled to 1/4th of the share as widow.
The confirmation in excess of her legal share was, therefore, fraudulent. He accordingly cancelled the excess confirmation and confirmed the same in the name of Muhammad Yahya and Muhammad Yaqoob sons of Nawab Khan informer against their verified claim.
5. The validity of the aforesaid order if assailed in these Constitution petitions. Writ Petition No, 1449 of 1976 is filed by Mst. Jummi and Muhammad Din a donee from Mst. Jummi while Writ Petition No, 357/76 is by Nawab Din and legal heirs of Ghulam Rasool claiming that the impugned order to that extent is invalid as they have not authorized their counsel to abandon their claim.
6. Learned counsel appearing on behalf of Mst. Jummi and Muhammad Din raised the following points:--
(i) It was contended that neither the application by informer was competent as the informer did not establish that Kapoor was alive and had been living in India after partition.
' Developing his argument, he stated that neither the claim was bogus nor Mst. Jummi obtained the allotment in excess of the claim of Kapoor. She did not make any misrepresentation nor committed any fraud. On the strength of this argument it was asserted that neither section 10 nor section 11 of the Displaced Persons (Land Settlement) Act were attracted. Therefore, the proceedings before the Settlement Authorities were misconceived and totally untenable.
(ii) Secondly it was urged that Mst. Jummi the widow of Kapoor being the only legal heir was entitled on the principle of return to the entire legacy of Kapoor, therefore, there was no case of any excess allotment or a fraudulent allotment.
(iii) Lastly it was urged that this application was in fact given by Ghulam Rasool and Nawah After the crucial date when Muhammad Yahya and Muhammad Yagoob were added as informer on 11- 11-1975. It was, therefore, contended that the entire proceedings from commencement to the finish were Coram non judice.
' Learned counsel for the petitioners has placed reliance on para. 54 of Muhammadan Law by D.E.
Mulla, Raj Khan and 5 others v. Fazal Hussain and 5 others 1972 SCMR 267; Dr. Ansar Hassan Rizvi v.
Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634; Nom Muhammad v. Muhammad Shafi and others 1986 SCMR 127; Hidayat Ullah v. Deputy Commissioner/Additional Settlement Commissioner
(Land) and 2 others 1976 SCMR 243; Amin Ullah and another v. Member, Board of Revenue-II, Balochistan, Quetta and 4 others PLD 1982 Quetta 73, Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others PLD 1979 SC 846.
7. Learned counsel for the informers in Writ Petition' No, 357 of 1976 contended that the statement made by the learned Advocate was totally erroneous and without instructions. It was, therefore, not binding.' It was contended that the petitioners/informers Ghulam Rasool and Nawab Din were the owners of the claim and, therefore, under section 14 of the Evacuee Property and Displaced Persons Laws Amendment Act 1973, were entitled to the confirmation of resumed land against their unsatisfied claim. On the basis of this argument it was represented that the impugned order to this extent was illegal and without lawful authority.
8. On the other hand, learned counsel for the respondents Muhammad Yahya and Muhammad Yagoob supported the impugned decision. It was urged that the information was lodged on 30-3- 1974 and not after the crucial date. Support was sought in this context from the entry on a photo stat certified copy of the information wherein the entry was 30/3. It was suggested that the parties were summoned by the relevant authority in 1975. Therefore, it was 'clear that application was given on 30-3-1974. Therefore, it was submitted that the application was a pending application and was not hit by crucial date given in Evacuee Property and Displaced Persons Laws Repeal Act XIV of 1975 (hereinafter described as Act XIV of 1975). It was next replied that the doctrine of return was not applicable in the case as Kapoor had one real brother, therefore, widow was not entitled under the provisions of Muslim Law to inherit the property of Muslim as a whole.
9. It was lastly contended that the Constitutional jurisdiction was available only if it was demonstrated that order was without jurisdiction or in excess of jurisdiction. In the instant case, the e:der was passed by the authority with jurisdiction under sections 10 and 11 of the Displaced Persons (Land Settlement) Act. It was clear that Mst. Jummi had secured allotment in excess of her entitlement with complete knowledge therefore, she has committed a fraud on the Settlement Authorities in securing allotment in excess of her entitlement. It was urged that it was a settled principle that the excess allotment was in fact a fraudulent allotment.
10. I have heard the arguments of the learned counsel for the parties and perused the record with care. After the careful consideration of the case, I have come to a conclusion that fate of these petitions turns upon the answer to a question as to whether Mst. Jummi as a widow of Kapoor was entitled to inherit the whole of the legacy of Kapoor on the principle of return.
11. Before I proceed to determine the question it is to be noticed that none of the parties have proposed that in India Kapoor was survived by any sharer, residuary or a distant kinsman in India.
The only allegation is that he had one brother who had died in India. It is also uncontested that Kapoor had died in India before partition. It is also not in dispute that the brother of Kapoor had C died in India, therefore, Mst. Jummi was the only legal heirs who migrated from India and came to Pakistan as a displaced person. She was recorded in India as a limited owner, under the Custom, but under para. 46-A of the West Pakistan Rehabilitation Settlement Scheme. His mutation of inheritance had to be effected in accordance with the provisions of Muslim Law.
12. The principle of Return according to Muslim Jurisprudence means whenever a residue is left after satisfying the claim of sharers and there is neither residuary nor distant kinsman, the residue reverts to sharers in proportion to A their shares. This right is known as "Return" or "Radd". The relevant law given in different textbooks of Muhammadan Law is as follows:- "Para. 54 of Muhammadan Law by D.F. Malta at page 87--Pakistan Edition.
54. Return (Radd).--If there is a residue left after satisfying the claims of sharers, but there is no residuary, the residue reverts to the sharers in proportion to their shares. This right of reverter is technically called "Return" or "Radd".
' Exception: Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a sharer or a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may he by Return.
' A widow is not entitled to any return in presence of daughter of deceased."
' Muhammadan Law by Sh. Amir All Sevenilk Edition, Volume Hat page 66.
"Return-- Husband or widow entitled to-- The early lawyers were of opinion that neither a husband nor a wife was entitled to take by return, but later jurists have held that when the deceased leaves no other heir belonging either to the categories of sharers or residuary (by Mood) or uterine relations (distant kindred), the husband or widow takes by return. And this rule has been recognized and enforced by the British Indian and Algerian Courts.
' Among the persons to whom there may be a return are the following:--(a) mother; (b) grandmother; (c) daughter, (d) son's daughter; (e) full sister; (l) half-sister by the father: (g) half- brother; (h) sister by the mother, and a return may take place to one, two, or three classes at the same time. But no more than three can take by return at one and the same time."
13. The same principle is contained in Durrul Mukhtar, at pages 868 and 869.
14. A close examination of the doctrine of Return indicates that it is the apportionment of surplus among the sharers when the sharers do not exhaust the property and there are not residuary and no kinsmen. The rule is that the surplus is distributed among the sharers in ratio of their respective shares. The early lawyers were of the opinion that neither the husband nor a wife was entitled to benefit by the principle of Return but the later jurists had held that when the porosities leaves no other heirs belonging either to the class of sharers or residuaries or uterine relations, the husband and widow takes the residue by the principle of Return. This rule has been recognized and enforced by the Courts in the sub-Continent and Algeria. I, therefore, have no difficulty in reaching the conclusion that mutation of inheritance in respect of the claim of Kapoor in favour of Mst. Jummi was correctly and rightly recorded and Mst. Jummi on the principle of Return was entitled to the surplus after satisfying her legal share.
' Therefore, I am of a considered opinion that neither Jummi obtained the confirmation in excess of allotment nor by practicing fraud or by misrepresentation.
15. The result is that the application of informer from the beginning to finish was totally misconceived and unmaintainable. The proceedings by the respondents from the beginning to finish were, therefore without jurisdiction and without any lawful authority and of no legal effect on the rights of Mst. Jummi.
16. In the light of foregoing analysis I hold that the impugned order of the Additional Deputy Commissioner is without jurisdiction and without any lawful authority and is therefore without any legal efficacy. I accept these petitions and set aside the impugned orders,
17. In view of the complicated nature of the question involved in these petitions, I leave the parties to bear their own costs.