1. ' ZAFFAR HUSSAIN MIRZA, J.---These five appeals arise out of a common judgment disposing of five miscellaneous appeals by a learned Single Judge vide judgment, dated 20th April, 1981, and accordingly arc being disposed of by the present Single judgment.
2. ' The dispute in these appeals relates to plots bearing Survey Nos.182, 183, 200 and 201, situated in Artillary Maidan, Quarters of the City of Karachi. These plots of land were originally the property of the Karachi Estate Board. One Rai Bahadur Narain Das Moolchand formally resident of Karachi created a trust known as "Rai Bahadur Naraindas Moolchand Dharmda Trust", by a deed of declaration of trust, dated 28th November, 1941, registered on 23rd December, 1941, in respect of properties described in the schedule annexed and incorporated in the said trust deed. According to the terms of the deed the properties, the subject-matter of trust, with all the income, interest, accretions and additions thereto, constituted the trust estate. This deed stipulated that the donor shall be the sole trustee of the trust during his life time and after his death five persons named therein would succeed as the trustees of the trust estate. Paragraph 15 of the deed provided that after paying taxes and Government charges the income of the trust properties was to be utilized for the charitable purposes detailed therein. Subsequently by a supplementary deed, dated 15th September, 1946, the aforesaid donor modified the percentage of income payable to different charities specified in clause 15 of the original decd.
3. ' So far as the disputed properties are concerned Plots Nos.183 and 200 were purchased by sale- deed, dated 22nd August, 1946, registered on 11th September, 1946, executed as purchaser by Rai Bahadur Naraindas Moolchand as trustee R.B. Rai Bahadur Naraindas Moolchand Trust. Plot No,182 was purchased for the said trust through their trustees Rai Bahadur Naraindas Moolchand and Shrimati Vishindevi by a sale-decd, dated 1st November, 1946, registered on 17th January, 1947.
4. Lastly the plot No,201 was purchased by Rai Bahadur Naraindas Moolchand and Shirimati Vishindevi Dhramda Trust through sale-deed, dated 29th November, 1946, registered on 26th February, 1947. On 22nd August, 1946, Rai Bahadur Naraindas Moolchand submitted an application to the Chairman, Karachi Estate Board, Karachi, requesting that the aforesaid plots may be amalgamated and conditions modified so that these could be built upon. In this application while stating the reasons for making the said prayer, it was categorically stated that the proceeds from the property would be advanced towards charity, education etc. This application was allowed by the Karachi Estate Board vide its letter, dated 19th November, 1946, on the specific understanding that the property was to be used as the trust property.
5. ' Thereafter, a deed was executed by Rai Bahadur Naraindas Moolchand and his wife Shrimati Vishindcvi on 14th May, 1947, registered on 31st October, 1947, wherein powers of trustees and the purposes of the trust were formally laid down with respect to the disputed properties as well.
6. Admittedly afterwards Rai Bahadur Naraindas and his wife Shrimati Vishindevi migrated to India.
7. ' After their migration these properties were admittedly surveyed by the office of the Custodian of the Evacuee Property and entered in their record as "Trust Property". These properties remained vested in the Custodian under the various evacuee properties laws.
8. ' However, in the year 1966, it came to the notice of the Divisional Evacuee Trust Committee, Karachi that the Settlement Department had transferred the property in Plots Nos.182 and 210 to certain persons. A reference was accordingly made on 17th December, 1966, under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for declaring the status of the property as evacuee trust property. The other two properties bearing Plots Nos.183 and 200 were not treated as non-Trust Evacuee Properties nor were they allotted or transferred to anybody.
9. However, the occupants of these plots also moved the Settlement Commissioner for declaration of the status of these properties as well. Mr.Muhammad Azhar, Settlement Commissioner/Chief Settlement Commissioner, South Zone, Karachi, by his order, dated 29th November, 1968, accepted the reference filed on behalf of the Divisional Evacuee Trust Committee and dismissed the five applications filed by the transferees and the occupants of the plots.
10. ' Being aggrieved the transferees and the occupants filed miscellaneous appeals before the Sind and Baluchistan High Court, Karachi, which were disposed of by common judgment, dated 12th May, 1971, by Durab Patel, J (as he then was) holding that the subsequent deed, dated 14th May, 1947, was constituted after the target date i,e. 1st March, 1947, and as the permission of the custodian was not obtained the said deed was hit by section 16 of the Pakistan Administration of Evacuee Properties Ordinance XV of 1949. His Lordship was, however, pleased to hold that the question whether the trust was for a charitable purpose or not had to be decided by reference to its objects in clause 15 of the aforesaid deed, therefore, the contention that only the income was dedicated was repelled. The learned Judge was further pleased to hold that the properties were purchased on behalf of the Rai Bahadur Naraindas Dharmda Trust but as there was no evidence about the objects of the said trust, therefore, he was not in a position to hold that the property was Evacuee Trust Property within the meaning of section 4(3). It was in these circumstances that the learned Judge by the aforesaid judgment remanded the case to the Chairman, Evacuee Trust Property Board, Government of Pakistan, so that a fresh decision could be taken after examining the original deed of trust.
11. ' On remand the case was heard by the Chairman, in the light of section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act 1958, as amended. The Chairman after examining the trust deed, dated 23rd December, 1941, and the supplementary deed, dated 1st June, 1946, came to the conclusion in view of the stipulations contained in clause 15 thereof that the objects of the trust were religious, charitable and educational. He reiterated the finding of the High Court that the purchases of the properties in dispute were made on behalf of the said trust. It was also held that the correspondence with the Karachi Estate Board by Rai Bahadur Naraindas Moolchand also supported the view that the property was purchased for purposes of charity and in terms of the deed of 1941, the properties in dispute acquired for the trust constituted accretions and additions to the trust properties originally dedicated. In view of these conclusions the learned Chairman held that the disputed properties were evacuee trust properties within the meaning of section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The result was that these properties did not form part of the compensation pool, and therefore, the transfers made by the Settlement Department were declared as void ab initio. The order of the Chairman, Evacuee Trust Property Board, Government of Pakistan was: dated 19th March, 1974.
12. ' The last mentioned order of the Chairman, Evacuee Trust Property Board, declaring the disputed properties to be evacuee trust properties, was the subject-matter of challenge in six separate miscellaneous appeals before the Sindh High Court, under subsection (4) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. These appeals were disposed of by the common impugned judgment in the present appeals by a learned Single Judge of the High Court. We have heard five out of the six appeals which will be governed by the present judgment.
13. ' The learned Single Judge construed the remand order of the High Court in the earlier Constitutional petition in a restricted manner, namely, that the case was remanded for the limited purpose of the production of the earlier trust deed 1941 and in the light of the contents thereof, to determine its effect upon the property in dispute. The learned Judge agreed with the findings of the Chairman, Evacuee Trust Properties Board that the objects of earlier trust deed were religious, charitable and educational. However, in examining the further question as to whether the said earlier trust deed had any connection with the disputed properties acquired in 1946, the learned Judge came to the conclusion, for various reasons which will be presently examined, that the said earlier trust deed had no connection with the disputed properties. Accordingly it was held by the learned Judge that the acquisition of the disputed property was not an accretion to the former trust. In the premises he finally held that the objects of the earlier trust deed did not in any way determine the nature of the properties in dispute, which were not established to be a part of charitable trust until the creation of Pakistan in 1947.
14. Leave was granted in these cases by a common order to consider, inter alia, "whether by their conduct prior to 1st March, 1947 (which also involves the interpretation of various documents to which they arc parties), the concerned evacuees did not make such dedication of the property in dispute so as to make it evacuee trust property: and also the question whether any of the transactions required approval of the Custodian Authority". The effect of section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, upon the present cases was also to be examined.
15. ' Learned counsel appearing in support of the appeals contended as under:
(i) that the documentary evidence as contained in the letter dated 22-8-1946, addressed by R.B.Narain Dass Moolchand to the Chairman Karachi Estate Board, Karachi, the entries in the Deputy Collector's Office, the reply from the Karachi Estate Board, dated 19th November, 1946, and the document executed on 14th May, 1947, clearly support the contention of the appellant that the trustees were treating the disputed property as trust property;
(ii) that in so far as Plots Nos.182 and 201 were purchased for Dharmda Trust, these were clearly an accretion to the 1941 trust and did, therefore, enjoy the same status;
(iii) that the disputed properties were acquired for a charitable trust by the said registered sale- deeds, dated 22nd August, 1946, 1st November, 1946 and 29th November, 1946, which is clearly revealed from the steps taken by the trustees in getting the plots amalgamated by the Karachi Estate Authority, for utilizing the same for charity, education, etc.
(iv) that the lack of confirmation by the Custodian of the instrument, dated 14th May, 1947, did not have the effect of destroying the evacuee trust nature of the properties as witnessed by the sale deeds coupled with the conduct of the trustees.
(v) As admittedly the properties in question were entered as evacuee trust properties in the record of the Custodian, no confirmation of the deed of 1947 was required.
(vi) that it is well-settled that under Hindu Law no form or deed is required to constitute an endowment, and as such the contrary view taken by the learned Judge in the High Court was erroneous.
16. ' It may at this stage be observed that the conclusion arrived at by the learned Single Judge turns mainly on the view that out of the three sale-deeds which constitute the trust property in dispute, two described the name of the vendee differently from the original trust called "Rai Bahadur Naraindas Moolchand Dhramda Trust". The third according to him did show that the acquisition evidenced thereby was in favour of the 1941 trust, but in view of further documentary evidence, the learned Judge held that this was another trust of the same name created by Rai Bahadur Naraindas and Mrs.Shirimati Vishindevi. These in short were the reasons that prevailed with the learned Judge in holding that the properties in dispute were the subject-matter of fresh trust called "Rai Bahadur Moolchand Dhramda Trust No,2" created by the trust deed, dated 14th May, 1947.
17. ' We have carefully examined this reasoning and are of the view that it is not sustainable on the evidence on record. In the first place it may be observed that the three sale-deeds purport to transfer the ownership of the property not in the name of an individual but in the name of a trust.
18. Therefore, there can be no question that the disputed property is trust property. The only further question remaining to be examined in terms of section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is whether this property is attached to charitable, religious or educational trust or institution. It is also common ground that the trust created in 1941 was a trust of such a nature as indicated by clause 15 of the trust deed, which enumerates the various charitable and religious purposes for which the trust was created.
19. ' In order to establish this point the appellant mainly relied upon the three sale-deeds and the two letters already described in the foregoing part of this judgment. Reference may be made firstly to sale-deed, dated 22nd August, 1946, relating to Plots Nos.183 and 200 in which the vendee's name is Rai Bahadur Naraindas Moolchand Dhramda Trust through its trustee Rai Bahadur Naraindas Moolchand. Therefore, ex facie this document by itself proves that the property covered by the same was acquired for the trust of 1941. Indeed the learned Single Judge in this respect observed as under:- "I am in agreement with Mr.Fazeel that this deed of sale does appear to be making an accretion to the property of the trust of 1941, and if there was nothing else but this deed then Plots Nos.183 and 200 have got to be treated as parts of the trust created in 1941."
20. ' Nevertheless the learned Judge went on to refer to the letter, dated 22nd August, 1946, addressed by Rai Bahadur Naraindas Moolchand to the Chairman, Karachi Estate Board, Karachi, which reads as under: ' From ' Rai Bahadur Naraindas Moolchand, J.P. Garden Road, Karachi-3.
21. ' To ' The Chairman, ' Karachi Estate Board, Karachi.
22. ' Sir, ' Re: Amalgamation of Plots Nos.182, 183, 200 and 201, K.E.B., Artillary Maidan.
23. ' I herewith submit three copies of plans for amalgamation of the above plots for favour of your early sanction.
24. ' It is my intention to construct a Cinema on part of this combined plot and some shops and residential quarters on the remaining portion.
25. ' This property is intended to be a trust property, the proceeds from which be advanced towards charity. Education etc. ' Restrictions as per original sale conditions for the built up area and compulsory open spaces are such that it will not be possible to construct a Cinema as per my intentions.
26. ' It is, therefore, requested that the conditions of the above plot may kindly be modified so that I may be in a position to have my requirements in the above plots.
27. ' Conditions may kindly be modified as follows:-
1. Build up area which is 1/3rd of the plot as per original condition may now be allowed as 2/3rd.
2. Compulsory open spaces may now be kept as proposed by me and which is shown on plots in red.
3. Number of storeys be increased on the Queen's Way to three including ground floor.
28. ' In view of the above facts as stated, I requested to kindly give your early sanction to the amalgamation of the plot with the modification in the conditions as stated above.
29. ' Yours faithfully, ' (Sd.)
30. ' Rai Bahadur."
31. ' The reply to this letter is in the following terms: ' No K.E.B.905-1946 Karachi, 19-11-1946.
32. ' To ' R.B.Naraindas Moolchand.
33. ' Reg. Plots Nos.182, 183, 200 and 201 A.M./Qr. Ref. Your application dated 22-8-1946.
34. ' The above application was placed before the Board in their meeting on 7-11-1946 and they resolved as follows:- - ' The assurance having been given that trust deed is complete, the Board allows the proposed amalgamation of the four plots viz. 182, 183, 200 and 201 for the purposes of building a cinema house and other buildings, the income of which will be utilized for charitable and educational purposes and relaxes the respective building conditions subject, to the following restrictions:
(a) 10' wide space must be left open on two sides of the amalgamated plot and 15 wide space at the back. In front the building will be allowed to come up to the road.
(b) Half the area is to be built upon. Small a space may be allowed by the Chairman.
(c) The plans to be submitted for approval as usual to the Karachi Estate Board and Karachi Municipal Corporation.
(d) Only offices will be allowed on the first floor.
35. ' (Sd.) (illegible)
36. ' 19/Xi.
37. ' Honorary Secretary, Karachi Estate Board."
38. ' As the letter dated 22nd August, 1946, did not specifically disclose that Rai Bahadur Naraindas Moolchand was writing the same in his capacity as the trustee of the property, the learned Judge regarded this omission to mean that the letter was written in his individual capacity, taking it to be conduct on his part to treat the property as his private property. The learned Judge has, however, omitted to take into consideration that the three sale-deeds relating to the properties mentioned in the letter, clearly disclosed that Rai Bahadur Naraindas Moolchand was not the vendee in his personal capacity but had figured therein as the sole trustee or as trustee alongwith his wife Mst.
39. Shirimati Vishindevi. From the categorical statement made in this letter that the property was "intended to be a trust property, the proceeds from which will be advanced towards charity, education etc." the learned Judge inferred that the trust was still to be created in the future and did not refer to the earlier trust. These conclusions do not logically follow from the language of the letter. As long as relevant sale-deeds, which are the most essential evidence of title and ownership, unambiguously showed that the property belonged to a trust, the omission to mention the capacity of the writer of the letter as the trustee is, in our opinion immaterial. The letter on the whole clearly shows as evidence of conduct on the part of Rai Bahadur Naraindas Moolchand that he was treating the property as one of trust for charitable and educational purposes. Also the reply dated 19th November, 1946, shows that an assurance was given to the Board that the trust deed was complete on the basis of which the proposed amalgamation of the four plots, was allowed for the purposes of utilizing the income "for charitable and educational purposes". Accordingly instead of militating against the nature and status of the trust as canvassed for, the letters go a long way to prove by their unrebutted evidence that the property was being treated as religious and educational trust. The third document which the learned Judge made reference to was the trust deed, dated 14th May, 1947, by which the four plots in dispute were joined and made the subject- matter of trust. The learned Judge rejected this document as ineffective in law for want of confirmation by the Custodian as already held by the Dorab Patel, J., (as he then was) in his judgment, dated 12th May, 1971, whereby the case was remanded. Nevertheless the reasoning of the learned Judge was that if the property in dispute were already governed by the earlier trust created in 1941, it could not be taken out of that trust and made a part of the trust created on 14th May, 1947. We are unable to agree with the learned Single Judge on this part of the reasoning. In the first place if the document was rejected as ineffective in law on account of lack of confirmation on the part of the Custodian, it could not be held that the same constituted a separate and distinct trust, as that would be giving effect to the document. With that will disappear the reasons supporting the conclusion. However, if at all the document could be looked into, then it clearly mentioned that the same was being executed for the purpose of a charitable trust, with the result that the nature of the trust which had acquired the property can be clearly proved to be for charitable and educational purposes.
40. ' It may further be pointed out that Dorab Patel, J. In his judgment remanding the case to the Chairman for fresh decision, had observed that the three sale-deeds have to be read together. This is further fortified by the fact that all the four plots were mentioned jointly in the application made by Rai Bahadur Naraindas Moolchand to Karachi Estate Board, for the purpose of utilizing the same.
41. If the sale-deeds are thus jointly read, then the fact that the sale-deed, dated 22nd August, 1948, related to the property acquired for the purpose of earlier trust created in 1941, would also apply to the other two sale-deeds. In this manner the property comprised in the three sale-deeds would all be accretions and additions to the earlier trust, of which, as earlier mentioned, purposes were religious, charitable and educational. This would be sufficient to uphold the finding arrived at by the Chairman, Evacuee Trust Board. The status of the properties as held above is further supported by the fact that the extract from the City Deputy Collector's Office shows that the property had been purchased for the Naraindas Trust. We have already held that entries mentioned in the revenue record regarding ownership are presumptive evidence of title, which shift the E burden on the person who challenges their correctness to establish otherwise. No evidence was pointed out to us detracting from the truth of the evidence of the entries. Additionally as observed by the learned Single Judge the admitted position was that all the four plots in dispute had been entered as evacuee trust property in the Evacuee Property Register on the survey of the property by the Custodian Authorities.
42. ' For all the aforesaid reasons we are unable to uphold the finding of the learned Single Judge that the properties in dispute were not a part of the trust created in 1941 but were the subject-matter of the subsequent trust attempted to be created in 1947, which, however, was ineffective for want of Custodian's confirmation. We think that there was sufficient evidence on record which established that the property in dispute was attached to charitable, religious and educational trust.
43. ' However, we may at this stage observe that it is well-settled that the scope of the proceedings consequent upon a remand order is governed by the terms thereof. In the proceedings prior to remand the trust deed, dated 28th November, 1941, was not produced for the consideration of the departmental authorities. It was sought to be produced in appeal before Dorab Patel, J. In the High Court. According to the finding of the said learned Judge, there were two trusts, one created by the deed dated 14th May, 1947, which failed as ineffective in law due to lack of Custodian's approval. In the background of these facts, the learned Judge proceeded to give his reasons for remanding the proceedings to the Chairman, Evacuee Trust Property, for fresh decision as under: "But as I have explained in para 5, there were two trusts, and the properties were purchased on behalf of the first Dharamda Trust, therefore, I explained to Mr.Mujtaba that he could not succeed unless he showed that the objects of the earlier Dharamda Trust were also exclusively charitable.
44. But as that Trust deed had not been produced before the first respondent it could not be accepted at this appellate stage. Mr.Mujtaba then made a statement from the. Bar that he had personally read that earlier trust deed, and he knows that its objects were exclusively charitable. He, therefore, sought permission to produce it before me. I was in some doubt as to whether I should allow Mr.Mujtaba to produce the trust deed at this stage, but Mr.Munshi and the learned counsel for the appellants very fairly suggested that the case should be remanded to the first respondent, and that the second respondent should be permitted to produce the earlier Dharamda Trust before the first respondent. I accepted this very fair suggestion.
45. ' For the reasons given herein I had allowed these appeals on 3rd May, 1971, with costs and with a direction that the case should be remanded to the first respondent who will rehear the matter and allow the second respondent to produce a copy of the earlier Dharamda Trust."
46. ' Clearly, therefore, the learned Judge at the time of remanding the case had given a categorical finding that the properties in dispute were purchased on behalf of the first Dhramda Trust, but as the trust deed constituting the said trust was not produced in evidence, the case was remitted to the Chairman so that the same may be produced and its objects may be examined. Accordingly the learned Single Judge in the impugned judgment in this appeal, having held that the objects of the first trust constituted in 1941, were religious, charitable and educational, the matter stood concluded that the disputed properties were evacuee trust properties of the same nature. In examining the question whether there was a connection between the earlier trust with the disputed properties, learned Judge travelled beyond the scope of the remand order.
47. ' The reference made by the learned Single Judge to Lakshmi Narayan Jew and others v. The Province of East Pakistan 1969 SCMR 898, Divisional Evacuee Trust Committee v. Abdullah and others 1970 SCMR 503, was not pertinent as the said decisions were distinguishable on facts and the dicta laid down therein are not attracted in the present case. Similarly Syed Abdus Saleem and others v. The Chairman, Evacuee Property Trust Board and another PLD 1975 Lahore 960 and Badruddin v. Kazi Munshi and others PLD 1972 Karachi 101 are also distinguishable as they dealt with a different set of facts.
48. For the reasons stated above these appeals arc accepted and partly allowed, in so far as we grant declaration that the properties in dispute were attached to religious, educational and charitable trust but it may be added that this declaration would not have the effect of its own force to annul the transfers already made to respondents. This observation has become necessary in view of the provisions of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which came into force in 1974, section 10(1)(b) of which lays down as under: "An immovable evacuee trust property, if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool."
49. ' The Authorities concerned will give effect to all such transfers in which Permanent Transfer Deeds were issued prior to June, 1968, unless the relevant Authority finds after a proper inquiry that the properties were not utilized bona fide while transferring the same in favour of the transferees. The appeals are allowed in these terms with no order as to costs.