1. ' B. Z. KAIKAUS, J.-This appeal is directed against an order of the Tribunal appointed under section 43-A of the Administration of Evacuee Property Act. In order that the nature and effect of the order passed by the Tribunal may be understood, it is necessary to state some preliminary facts.
2. Following is the pedigree-table of the parties with whom we are concerned :- {{TABLE}] SETH TEJUM AL I I R. S.i Moolchand Tirathdas Gopaldas I (deceased) (deceased)
3. I I i. I I I I Naraindas Ramchand I Thaiumal Ishwardas I I 1 Jairaj ! I Kirpal Das Ghansham Das {{TABLE}} ' Tejumal shown in this pedigree-table belonged to village Peerumal in District Tharparkar. He died in 1930 leaving behind him three sons i,e, Moolchand, Gopaldas and Tirathdas. Gopaldas died in 1942, and Tirathdas in 1946. R. S. Moolchand on an application made by him under section 18 of the Evacuee Property Ordinance was declared non-evacuee by an order of Mr. Akbar Hussain the Custodian of Evacuee Property dated the 17th of April 1950. Tharumal, Ishwardas, Kirpaldas and Ghanshamdas were similarly declared to be non-evacuee by Mr. Akbar Hussain on the Ist of June 1950. In 1951 the Administration of Evacuee Property Ordinance was amended and provisions relating to intending evacuees were inserted in it. On the 14th of November 1951, the Assistant Custodian issued a notice to R. S. Moolchand and Tharumal to show cause why they should not be declared intending evacuees. A similar notice was also issued to Ishwardas and to Vingar Bai widow of Gopaldas. By an order dated the 21st February 1953, Mr. Irshad-ud-Din, the Deputy Custodian, declared R. S. Moolchand and Tharumal to be intending evacuees and Vingar Bai, Ishwardas, Kirpaldas, Ghanshamdas and some other members of the family to be evacuees. This order was challenged by an appeal filed on the 20th March 1953, before the Custodian. The appeal in so far it related to intending evacuees could be heard by the Additional Custodian and it was in fact transferred to the Additional Custodian for disposal. On the 11th October 1954, the Additional Custodian accepted the appeal and remanded the case to the Deputy Custodian for further hearing. The appeal, however, in so far as it related to the evacuees remained pending. Before the disposal of the case on remand, on 21st February 1953, Moolchand and Ramchand submitted an application under section 18 of the Evacuee Property Ordinance. This petition was allowed on the 6th September 1957, and both Moolchand and Ramchand were declared non-evacuees. The Assistant Custodian who passed the order held at the same time that Naraindas had separated from the joint Hindu family and had no further share in the joint family property. No proceedings were taken on the remand ordered by the Additional Custodian firstly because the provisions relating to intending evacuees had been repealed in the meantime and secondly a declaration as to non-evacuee status had been secured by Moolchand and Ramchand on 20th of February 1953.
4. No further proceedings were, at the same time, taken in the appeal filed before the Custodian against the order of Mr. Irshad-ud-Din in so far as it related to the evacuees.
5. ' Except for Naraindas the members of the family other than R. S. Moolchand and Ramchand who are shown in the pedigree-table filed applications under section 18 of the Evacuee Property Ordinance and they too secured two separate orders on the 24th of December 1957, holding that they were non-evacuees and their properties were not evacuee properties.
6. ' The Central Government made a single reference under section 43-A of the Evacuee Property Act challenging the three orders mentioned above in favour of the descendants of Tejumal. The Tribunal came to the conclusion that the reference was bad for multifariousness as it related to three orders and that under the circumstances the reference could be proceeded with only in respect of one of the orders that had been impeached. The Tribunal chose to treat the reference as directed only against the order passed in favour of R. S. Moolchand and Ramchand on the 6th of September 1957, and preceded to consider whether they should be declared evacuees. Naraindas had not been declared a non-evacuee, but his position too had become a question of consideration by the Tribunal because he was a member of the joint Hindu family and the decision of the question as to whethei he was a member of this joint family and whether he was evacuee would affect the extent of the property owned by the joint family.
7. ' In determining the question of the status of Moolchand and Ramchand the Tribunal relied in the first place on the evidence produced before them for proof of the fact that the family of R. S. Moolchand had departed en bloc for India on the 4th of February 1948. It appeared from the evidence that eight first class tickets, 10} second class tickets and seven third class tickets had been issued to the family of R. S. Moolchand on the 4th of February 1948. In fact R. S. Moolchand had not, in his statement before Mr. Irshad-ud-Din, Assistant Custodian, denied this fact. The relevant portion of his statement is as follows :- "I had been to Jodhpur alongwith all the members of my family subsequent on Partition. They consisted of fifteen or sixteen members.. ...... I do not know whether eight second class and 10i servant class tickets were purchased or not. My son might have purchased on 4-2-1948."
8. ' On a consideration of the evidence as well as the statement of R. S. Moolchand the Tribunal came to a conclusion which is contained in the following passage :- "After reading the statement of Moolchand with the statement of the witnesses produced on behalf of the Department before Mr. Irshadad-Din it is obvious to us that respondent No, 1 and his family loft Pakistan on account of Partition and fear of disturbances. On this evidence they are clearly evacuees within the definition of "evacuee" in Ordinance No, XV of 1949. It was urged before us that the departure of a person from Pakistan for a short period to India does not make him evacuee under the evacuee law. It appears to us that if a person goes to India for a short period in connection with some business or some other purpose and not on account of disturbances or fear of disturbances or Partition he cannot be treated or declared as an evacuee. But in this case respondent No, 1 and the members of his family admittedly on the statement of R. S. Moolchand left Pakistan for India on account of Partition and the fact that R. S. Moolchand returned to Pakistan on a temporary permit in February 1949, and Narayandas came to Pakistan on temporary permit in December 1948, and Ramchand remained in India right up to 1956 and passed his matriculation examination from Rajasthan University is sufficient material to bring their case within the four corners of the definition of "evacuee" in Ordinance No, XV of 1949."
9. ' Having found that the whole of the family had become evacuee, the Tribunal went on to say that in spite of this finding they had to consider whether they were entitled to declare the three respondents i,e,, R. S. Moolchand, Naraindas and Ramchand evacuees in view of the orders that had been passed by the Custodian in 19)0. They found that so far as R. S. Moolchand was concerned there was a declaration as to his non-evacuee status by the Custodian on the 17th April 1950, the validity of which could not be challenged before them as it was of a date prior to the Ist January 1953, and the evidence on the record was insufficient for proving that R. S. Moolchand had become an evacuee after the 17th of April 1950. They felt bound, therefore, to confirm the order of the Assistant Custodian in so far as it declared R. S. Moolchand to be non-evacuee in spite of the fact that on the merits they found him to be evacuee. They took next the case of Naraindas and held that he was an evacuee and that there had been no partition of the joint family which consisted of R. S. Moolchand and his sons. They considered at the same time the question as to whether any part of the property in dispute was self-acquired of R. S. Moolchand and they held that the whole of the property in dispute was joint family property belonging to R. S. Moolchand and his two sons. They then considered the question whether Ramchand was an evacuee and after an exhaustive discussion which covers four typed pages came to the conclusion that he was an evacuee.
10. ' Before us two points have been argued the first being that Ramchand was not an evacuee and the second that the property in dispute apart from 400 scres was not joint family property but the self-acquired property of R. S. Moolchand. No argument has been addressed to us in respect of Naraindas. It had been conceded by the Attorney-General that there was no declaration in favour of Naraindas holding him to be non-evacuee. This concession was made by the Attorney-General during the course of his reply and not during the argument addressed to us by counsel for the appellant, and therefore the omission of counsel for the appellant to discuss the position of Naraindas is not relatable to the concession of the Attorney-General. It is to be observed that in spite of the fact that there is no order declaring Naraindas non-evacuee the question as to whether he was an evacuee and whether he was still a member of the joint Hindu family is relevant because it affects the extent of the property which is to be held to be not evacuee. The question before the Tribunal was not only of the status of the parties, but whether the property in dispute was evacuee property or not. If Naraindas was an evacuee and he had not been separated from the joint Hindu family, the joint property, would, to the extent of his share, be evacuee property. The declaration made by the Assistant Custodin in 1957, which was the subject matter of the ieference by the Central Government related not only to the status of R. S. Moolchand and Ramchand, but to the property which they were said to own.
11. ' We will take up first the question whether Ramchand was an evacuee or not. It has already been stated that on the 4th of February 1948, the whole of the family of R. S. Moolchand had migrated to India. It is admitted that Ramchand was one of the persons who migrated to India at that time. We have already reproduced the statement of R. S. Moolchand wherein he said that subsequent to Partition the whole family had left for India. An "evacuee" is defined in section 2(2) of the Administration of Evacuee Property Ordinance as below :-
(2) "evacuee" means any person-
(a) who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories ; or
(b) . .
12. In order that a person may be an evacuee his migration to India should have been on account of the Partition or on account of fear of disturbances. The fact that the migration was due to the Partition or to the fear of disturbances cannot generally be proved by direct evidence unless there be an admission by the person who migrates to that effect, and has to be inferred from circumstances. If a Hindu left Pakistan during the days when the disturbances were apprehended, it is a reasonable inference in the absence of any evidence to the contrary that he left either on account of the Partition or on account of fear of disturbances. The statement of R. S. A Moolchand that the family had migrated subsequent to the Partition would show that the migration was on account of the Partition. But in the present case there is further and better material on the record to prove that the reason for this migration was in fact fear of disturbances. R. S. Moolchand when examined by Mr. Irshad-ud-Din had made the following statement : "Ramchand is here. But he also had migrated for fear of disturbances."
13. ' According to the statement of R. S. Moolchand, he had returned from India in February 1949, on a temporary permit. Now if we were to consider the simple fact that the family migrated to India for fear of disturbances apart from any other evidence, it would be sufficient to establish that R. S. Moolchand and his family had become evacuees. Once they left for India on account of the fear of disturbances they would be evacuees within the definition of the Evacuee Property Ordinance. But there are further facts to be considered. R. S. Moolchand remained in India at least for about a year before he visited Pakistan even on a temporary permit. If a person once became an evacuee there is no provision which makes him a non-evacuee merely on his return to Pakistan. The case of Ramchand is that hall was studying at a school in Jodhpur and that he passed the Matriculation Examination of the Rajputana University in 1955. No certificate from the school was produced, but in any case it was clearly admitted that he stopped his education in 1955. We find, however, that in spite of this he had been living in India right up to the year 1957. The Tribunal found that there was no explanation for his stay in India in 1955 except that he had the intention to permanently reside there and nothing has been said before us which may show that the finding was unwarranted. A look at his passport shows that he obtained 'C' category Visa from India in 1953, 1954 and 1957 for short visits. From December 1955 to 1956, he was continuously in India and again in March and October 1957 he stayed in India for about two months on each occasion. Before Mr. Rizvi who granted him the declaration as to his non-evacuee status which was challenged before the Tribunal he said also never migrated to India." This was obviously untrue. Before Mr. Irshaduddin he had said that his father had brought him from India on his own permit. But in the permit which was produced before Mr. Irshaduddin amongst the members of the family who had been brought by R.
14. S. Moolchand the name of Ramchand did not appear. It may be explained here that R. S. Moolchand had brought members of his family on a temporary permit and later he had got his temporary permit converted into a permanent one by the Permit Officer.
15. As we have already stated the Tribunal went fully into the question of status of Ramchand. We are not dealing with an ordinary appeal but with a finding by a Tribunal vested with a special jurisdiction and until and unless it could be shown that there was a mistake on some question C of principle, we would not interfere with any finding of fact. No such mistake has been pointed out.
16. ' The second contention, namely that apart from 400 acres the property in dispute is self- acquisition of R. S. Moolchand does not require an exhaustive discussion. The nucleus of joint family property was undoubtedly sufficient for acquisition of the property claimed to be a self-acquisition and therefore the presumption will be that the property in dispute is self-acquisition till the contrary is proved. According to R. S. Moolchand he acquired this property by the income derived from the properties belonging to other persons which he took on lease. There was no document to support this assertion and no accounts were produced. Under the circumstances the Tribunal was fully justified in rejecting the plea of self-acquisition.
17. ' We now proceed to consider the appeal of Naraindas. It is true that he was never declared a non- evacuee, but there was an order by an Assistant Custodian Mr. Rizvi to the effect that Naraindas had no share in the property of the joint Hindu family of which his father Moolchand was karta and this amounted to a declaration that the share which by birth helonged to Naraindas, was now vested in the other members of the joint family, two of whom had been declared by Mr. Rizvi to be non-evacuees. Thus the effect of Mr. Rizvi's order was to render certain property non-evacuee which would otherwise, if it had still vested in Naraindas had been evacuee property. The reference to the Tribunal was competent in relation to this property, and the finding of the Tribunal is that the story of Naraindas having been separated from the joint Hindu family was not to be believed. They upheld at the same time, the finding that Naraindas was an evacuee, and the effect of the two findings is that a share in the property equal to that which was vested in Naraindas at his birth, can now be treated as evacuee property. The concession made by the learned Attorney-General was only to the extent that Naraindas had never been declared to be a non-evacuee. This concession has no bearing on the findings of the Tribunal set out above, against which nothing was said by learned counsel for the appellants. These findings must accordingly stand.
18. ' It was urged at the close of the argument by learned counse for the appellants that Moolchand had two wives, and that the share of one of them had not been taken into account, There is mention of two wives in the evidence which was recorded at the latest in 1957, but where they are, and whether both are alive are questions of fact which would be relevant for the determination of the effect upon the present case. Moreover, there is no specific claim on this basis in the grounds of appeal or in the concise statement of the case furnished by the appellant.
19. ' This appeal fails and is dismissed with costs.