MUNIR A. SHAIKH, J.---This judgment will also dispose of ICAs Nos. 6/C-86, 7/C-86, 8/C-86, 10/C- 86, 11/C-86, 12/C-86, 14/C-86, 16/C-86 and 1/C-87 as all of them have been directed against the judgment dated 23-6-1986 passed by the learned Single Judge in C.Ms. Nos. 2016/C-80 and 5672/C-80.
2. The facts forming the background of these appeals necessary for their disposal shortly stated are that Abdur Razzaq one of the occupants of property known as Albion House moved an application before the Administrator-- General stating therein that the said property belonged to three brothers namely Mr. Stanley Charles William Rose, Mr. Henery Maurice Rose and Mr. Frederick St. John Rose in equal shares, that the property was leased out for 50 years in 1919 to one Mr. Kawasha Dossabboy Wadia Proprietor of M/s. Bombay Cycle and Motor Agency and thereafter in 1936; and that the lessee assigned his rights in the said property for the remaining period jointly to Diwan Ram Lal, Sardar Amar Singh, Sardar Sapuran Singh Chawala and Pandit Raj Kristian Bal. K.D.
Wadia had already granted Sub-Leases to M/s. Kirpa Ram and Brothers, M/s. Regal Theatrers Ltd.
And M/s. Lahore Boot House of different portions of property before the assignment of rights under the Deed dated 18-12-1936, therefore, according to him these Sub---Leases had been excluded from the operation of the deed of assignment. He further stated that the property was firstly taken over by the Rehabilitation Department as evacuee property and later by the Settlement Department and the same was transferred to various transferees. It was pleaded that on the expiry of 50 years lease period in 1969 the said property automatically reverted to the said three owners and since they were neither alive nor any of their legal heirs resided in Pakistan and till the conclusion of necessary inquiries which were to take considerable tune, it was necessary in the meanwhile to take over the entire property for the benefit of the owners/beneficiaries, if any, residing in Pakistan and to protect the said property from all apprehended dangers of misappropriation, deterioration and wastage pending the determination of the questions whether any of the above-named three owners were alive, whether any legal heir existed and if so an application for Probate of any Will or in its absence Letter of Administration had to be submitted.
3. The Administrator-General, Punjab filed C.M. No.2015/C of 1980 under sections 11 and 28 of the Administrator-General's Act III of 1913 read with section 253 of the Succession Act, 1925. It was averred that the inquiries conducted by the Administrator-General revealed that the whereabouts of the said three brothers were not known, therefore, he sought a direction as follows:---
(i) to take over the temporary charge of the properties as per provisions of the aforesaid laws;
(ii) to apply for Probate of Letter of Administration of the estate after full or necessary inquiry as to the true value or nature of the estate; and
(iii) to retain out of the assets of the estate any fee chargeable under the rules made under the Act and to reimburse himself for all payments made or the expenses incurred in respect of the collection, protection and realization of the property.
4. Since the property as evacuee property had already been transferred to various persons, therefore, the learned Single Judge directed that notices be issued to all the transferees as also the Settlement Department who filed their replies. The Settlement Department raised an objection that the property having been treated dealt with and transferred under the Settlement Laws as evacuee property, therefore, the petition was not maintainable as jurisdiction was not vested in any Court other than the Custodian to determine the question whether the property was or was not evacuee property. The learned Single Judge reflected the controversies arising from the pleadings of the parties in the following issues:---
(1) Whether the petitions, as framed, are not maintainable? O.P.R.
(2) Whether the properties subject-matter of the petitions are the "assets" belonging to three persons named in the petition within the meaning of Act III of 1913, if so, what directions need be passed? O.P.P.
(3) Has the right, title or interest of Stanley Charles William Rose and Fredrick John Rose in the property in question extinguished by operation of law or otherwise?
(4) Whether the petitions filed by the Administrator-General are mala fide?
(5) Is the Will of Mrs. Mary Rose dated 16-6-1903 still operative. Does it bar the Administrator- General from seeking direction 'from the Court?
(6) What is the effect of treatment of the properties in question as evacuee properties and their transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the right, title or interest of the owners of the property in dispute?
(7) Are the transferees the only necessary and proper parties? (Onus on transferees/respondents).
(8) Whether the tenants under transferees are necessary or proper party to the petitions?
(9) Whether the persons mentioned in issue No.3 are evacuee, if so, what is its effect?
(10) Relief.
5. We need not dilate upon the discussion of the oral evidence as the controversy has been narrowed on account of documentary evidence brought on the record in these proceedings by way of additional evidence which are Exhs.R.24 to R.37. The learned Single Judge after considering the evidence on the record came to the conclusion that the said property was owned and possessed by Mrs. Mary Rose who had three sons, namely, Mr. Stanley Charles William Rose, Mr. Henry Maurice Rose and Mr. Frederick St. John Rose and two daughters named Winifred Lydia and Mrs. Gladys May Hill. Winifred Lydia had two daughters namely Eric Charles Stuart Dawe and Sheila Winifred Adams. The other daughter, namely, Gladys May Hill had one son named Earnest Charles Clear Hill and one daughter named Greda Mary Clear Hill. Mrs. Mary Rose made a Will on 16-6-1903 (Exh.P.36) in respect of the said property (described as situated in Donald Town, Upper Mall, Lahore) which included Albion House, earlier known as Pollock House. The learned Single Judge assumed that the property dealt with by the said Will was the entire estate owned by Mrs. Mary Rose out of which the area delineated by the letters A, B, C and D on the map was to be excluded from the purview of the Will as it had been bequeathed to her three aforesaid sons absolutely in equal shares whereas the remaining area which was on lease with a Firm of Outfitters named Phelps & Co. Was bequeathed through this Will m favour of her daughter and their children with the stipulations mentioned therein.
6. We may observe here that from the additional evidence produced before this Court the position which emerges is that the said estate delineated as A, B, C and D was not part of this estate which was bequeathed through the Will whereas that was the part of her other properties owned by her which we will discuss in the later part of this judgment. On the basis of this will a Letter of Probate (Exh. P.33) in favour of Stanley Charles William Rose one of the executors was issued vide order dated 11-2-1905 (Exh.P.32). Mr. Stanley Charles William Rose as executor in pursuance of the said Letter of Probate leased out this estate on 14-2-1919 (Exh.P.3) in favour of Mr. K.D. Wadia, Proprietor of Bombay Cycle and Motor Agency Ltd. For a period of 50 years. The property mentioned in this lease was described as Albion House situated over an area of approximately 28 Kanals 5 Marlas.
According to the stipulations the lessees were permitted to put structures thereon. On determination of the lease period, they had been given first option to purchase the land underneath and the costs incurred as regards superstructures were to be paid to them. Though there was no stipulation that the said lessees could grant sub-lease but on 30-1-1920 Mr. K.D.
Wadia, executed a deed of assignment by which he assigned his leasehold rights in favour of Bombay Cycle and Motor Agency Ltd. Which through separate sub-leases dated 14-4-1927 (Exh.P.4), 25-11-1927 (Exh.R.18) and 4-6-1933 leased out respectively to M/s. Kirpa Ram and Brothers, Belu Ram and Sons and Regal Theatres Ltd. M/s. Belu Ram and Sons executed a further sub-lease dated 15-3-1932 (Exh.R.17) in favour of Sh. Ghulam Jilani and Sh. Ghulam Samdani who were predecessor-in-interest of respondents Nos.29 to 32 who were known as Lahore Boot House. Later on, on 18-12-1936 M/s. Bombay Cycle and Motor Agency Ltd transferred and conveyed their rights by executing a deed of assignment in favour of Mr. Justice Diwan Ram Lai, Sardar Sampuran Singh Chawla, Raj Krishan Bal and Amar Singh. On 18-2-1939 a sale-deed (Exh.R.l) was executed by. Mr. Homi Jehangir Rustomji, General Attorney of Winifred Lydia Dawe, her son Eric Charles Stuart Dawe and daughter Sheila Winifred Adams, Gladys May Hill her son and daughter Earnest Charles Clear Hill and Miss Greda Mary Clear Hill and Mr. Stanley Charles Rose in favour of Mr. Justice Diwan Ram Lal, Sardar Sampuran Singh, Sardar Amar Singh and Raj Krishan Bal in respect of Albion House measuring 28 Kanals and 5 Marla s. Since the ownership rights of the property through this sale- deed stood transferred to evacuees, therefore, the same was taken over by the Rehabilitation Department, thereafter by the Settlement Department and transferred under the Settlement Laws. -It is evident from the recitals in the sale-deed (Exh. R.1) that one son namely Frederick St. John Rose of Mrs. Mary Rose had already died. According to the Will (Exh.P.36), dated 16-6-1903 the beneficiaries were the two daughters and their children. Since the said beneficiaries had joined hands in the execution of the said sale-deed, therefore, it was held by the, learned Single Judge that their beneficial interest terminated and the said property and its ownership rights reverted to the remaining two sons of Mrs. Mary Rose namely Stanley Charles Rose and Henery Maurice Rose.
According to the finding, since Stanley Charles Rose only signed the sale-deed in his personal capacity, therefore, he shall be deemed to have transferred one-half share in the property to the said vendees and as regards the remaining one-half of the said property measuring 28 Kanals 5 Marlas which vested in his other brother namely Frederick St. John Rose,-could not be disposed of by him, as such, an order was passed that the Administrator-General should collect and take possession of the said half share with further direction that he should approach the Provincial Government/Chief Settlement Commissioner for working out and realizing the said share in the light of the stipulations contained in the Lease Deed, dated 14-2-1919 which shall be subject to the approval of the Court. The Administrator-General was also directed to apply for Letter of Administration after holding further inquiry as to existence of any other property of Mrs. Mary Rose and as to whether Mr. Henery Maurice Rose was alive and whether he had left any heir or any will through the impugned judgment dated 23-6-1986.
7. As observed above since the learned Single Judge proceeded on the assumption as if the entire property owned by Mrs. Mary Rose was Albion House measuring 28 Kanals 5 Marlas out of which a portion delineated A, B, C and D had been bequeathed in favour of three sons and the remaining area which was on lease with Phelps & Co., was the subject-matter of the Will therefore, it. Is necessary to clear doubts as to the extent of property owned by Mrs. Mary Rose and determine whether A, B, C and D portion was part of this property measuring 28 Kanals 5 Marlas or it was separate and independent portion in the light of the additional evidence brought on the record.
Exh.R.24 is a copy of Missal-e-Haqiat for the year 1891-92 of Village Mozang in which out of total land measuring 57 Kanals 17 Marlas Madam Rose was recorded as owner of land measuring 23 Kanals 10 Marlas and the remaining land measuring 34 Kanals 7 Marlas was shown to be in the ownership of Sarkar Daulat Madar. Exh.R.25 is a copy of Jamabandi for the year 1898-99 in which these entries have been repeated. Exh.R.26 is certified copy of Mutation No.544 sanctioned on 27- 6-1903 according to which the land owned by Sarkar Daulat Madar measuring 34 Kanals 7 Marlas was mutated in the name of Mrs. Mary Rose. Before that she had already made Will in question on 16-ti-1903 (Exh.P.36). Mrs. Mary Rose died on 14-6-1904. It is clear that the said area of 34 Kanals 7 Mailas purchased by Mrs. Mary Rose as aforementioned was the same area which was delineated as A, B, C and D in the Will which was not the part of area leased out to Phelps & Co. Measuring 28 Kanals 5 Marlas which was made subject-matter of the said Will (Exh.P.36) and this area as mentioned in the Will had been settled on the aforementioned three sons by Mrs. Mary Rose i.e. Reference to area delineated A, B, C and D in the Will was made in relation to this area of 34 Kanals 7 Marlas which is manifest from Mutation No.871 sanctioned on 13-7-1906 (Exh.R.27) through which the said land was mutated in the name of said three sons. Through gift deed executed on 22-12- 1905 and registered on 20-1-1906 (Exh.R.28) one of the brothers namely Mr. Frederick St. John Rose gifted his share in the said land in favour of Mr. Stanley Charles William Rose whereas the other brother-namely Mr. Henry Maurice Rose through gift deed executed on 20-12-1905 and registered on 26-1-1906 also gifted his share in favour of Mr. Henry Maurice Rose. Mutation No.872 was sanctioned on 14-6-1911 (Exh.R.30) and on the same date Mutation No.873 was also sanctioned for implementation of Will dated 16-6-1903. It is clear from this that Mr. Stanley Charles William Rose became owner of the said land measuring 30 Kanals 4 Marlas 135 sq. Ft. Out of the total land measuring 57 Kanals 17 Marlas owned by Mrs. Mary Rose whereas the land measuring 28 Kanals 5 Marlas was the subject-matter of the Will and no portion of the same had been settled on the three sons as portions A, B, C and D as assumed by the learned Single Judge.
8. Before the said two Mutations Nos. 872 and 823 were sanctioned Mr. Stanley Charles William Rose through sale-deed executed on 24-8-1906 and registered on 11-9-1906 (Exh.31) sold the said land measuring 30 Kanals 4 Marlas and 135 sq. Ft. To Ram Dhan, Dewan Chand and Sheikh Mahbub A.I Proprietor of Bombay House, Lahore, in equal shares, therefore, the ownership rights of all the three brothers in the property stood disposed of through Mutation No.948 (Exh.R.32), sanctioned in favour of the said three vendees. Subsequently through sale-deed executed on 8-3-1907 Sheikh Mahbub A.I sold his 1/3rd share in favour of Bharat Insurance Company which was registered on 9-3-1907 (Exh. R.34) in pursuance of which Mutation No.1339 was sanctioned on 23-1-1911 in favour of Bharat Insurance Company (Exh.R.35). Ever since 23-1-1911 the said property was owned by the said evacuees, therefore, on the partition of the sub-continent and creation of Pakistan the same became evacuee property.
9. Reverting to the question whether the sale-deed dated 18-2-1939 (Exh.R.l) executed by Mr. Stanley Charles William Rose and the attorneys of the daughters of Mrs. Mary Rose and their children who were the beneficiaries under the Will (Exh.P.36) had the effect of transferring the share of other brothers in whom according to the learned Single Judge the, ownership rights in the property vest in equal share alongwith Mr. Stanley Charles William Rose after the termination of the beneficial interest of daughters etc. It may be mentioned that the same appears to have not been decided in accordance with law applicable. It was an admitted fact that Mr. Stanley Charles William Rose was issued Letter of Probate in pursuance of the Will made by Mrs. Mary Rose about the said property measuring 28 Kanals 5 Marlas, therefore, he became the executor under the said Will. Section 211(1) of the Succession Act, provides that the executor or administrator, as the case may be, of a deceased person is his legal representatives for all purposes, and all the property of the deceased person vests in him as such. According to section 307 of the said Act, the executor was vested with power to dispose of the property vested in him under section 211 either wholly or in part, in such manner as he may think Section 332 of the Act, provides that the assent of the executor or administrator was necessary to complete a legatee's title to his legacy and according to section 333 the assent of the executor as regards transfer of the subject of the bequest of the legatee was sufficient to make it effective which assent may be verbal, express or implied from the conduct of the executor or administrator. If the said provisions of law are read together there can be no escape from holding that the property vested in Mr. Stanley Charles William Rose absolutely as legal representative and he was vested with full power without any limitation to dispose of the same in any manner and even without his assent legatee's title to his legacy namely Mr. Henery Maurice Rose one of his brothers was not complete and his (Mr. Stanley Charles William Rose) assent was necessary to transfer the subject of bequest of the legatee. Judgments reported as Cedars Rapids Manufacturing and Power Company v. Locoste and others AIR 1914 PC 199; Geetaranee De v. Narendrakrishna De AIR 1933 Cal.- 429 and Bali Ram Dhote v. Bhuppendra Nath Banerjee and others AIR 1978 Cal. 559 may be referred in support of this view. It was held by the learned Single Judge that Mr. Stanley Charles Rose was competent to sell his own share only in the property measuring 28 Kanals 5 Marlas and not the other half share of his brother i.e. Legatee cannot be sustained in view of the above-referred provisions of the Act. It appears that the provisions of the Succession Act, escaped notice of the learned Single Judge while deciding the case.
10. Apart from what has been discussed above it may be observed here that if Mr. Henry Maurice Rose was aggrieved of the sale of his share in the land by the executor namely Mr. Stanley Charles William Rose he should have challenged the same before a Court of law. Suffice it to say that in proceedings under the Administrative-General's Act, the legality of any transaction and the questions of title in relation to any property could not have been decided as 13 these matters were outside the purview and scope of the said Act. This view finds support from judgment reported as Guran Das v. Administrator-General Punjab and others AIR 1928 Lah. 514.
11. There is another aspect of the case which did not receive consideration by the learned Single Judge i.e. That under section 7 of the Administrator-General's Act, 1913 there is a bar against grant of Letter of Administration by this Court under the Act, to Administrator-General in a case it had already been granted to the nearest of kin. In this case Mr. Stanley Charles William Rose had already been issued Probate as such he was the executor, therefore, the petition made by the Administrator-General was not maintainable. Under section 2(1) of this Act, letter of Administration could be issued in respect of assets belonging to a deceased and as we have already held that the transfer of the property by Mr. Stanley Charles William Rose as executor as a whole and the rights created thereunder in favour of the vendees who were evacuees could not be questioned and determined under the said Act, therefore, the petition made by the Administrator-General was wholly misconceived and liable to be rejected.
12. The property in dispute was taken over by the Rehabilitation Department on the creation of Pakistan and thereafter it was transferred to the appellants under the Settlement Laws being part of compensation pool, therefore, no Court other than the Custodian was vested with jurisdiction to determine whether the same was or was not an evacuee property. This question has not been adequately and clearly dealt with and decided by the learned Single Judge and we hold that the jurisdiction was not vested in this Court to determine the said question. Exh.R/6 is a copy of notice issued by the Municipal Corporation, Lahore to evacuees regarding amendment of assessment of the property. Exhs.R.7 and R.8 are the copies of assessment register of the property whereas Exh.R.9 is a copy of PA register of 1946 in which the property had throughout been shown in the ownership of the evacuees. It has been consistently held by the superior Courts that jurisdiction of any Court as regards determination of any question as to status of property whether it was an evacuee or not had been ousted and the Custodian was vested with the exclusive jurisdiction to determine the same. Some of the precedents are as follows:---
(1) Faizud Din Ahmad v. Muhammad Yousaf and others 1988 SCM R 1289.
(2) Muhammad Sadiq through his Legal Representatives v. Pakistan through Collector and 2 others 1988 CLC 123.
(3) Ahmad Khan and 5 others v. Member, Board of Revenue and 3 others PLD 1986 Lah. 299.
12. The position which emerges from the material placed on the record is that the entire property owned by Mrs. Mary Rose measuring 57 Kanals 17 Marlas in pursuance of the above dispositions became evacuee which was taken over by the Rehabilitation Department and some portion of the same was disposed of in favour of the appellant, as such, the petition under Administrative General's Act, was not maintainable.
13. Learned counsel for the respondents submitted that the other parts of the said property are still un-disposed of under the Settlement Laws. The Settlement Laws have made provisions for dealing with un-disposed of evacuee properties as residual property which matter may be taken up by the Settlement Department/Chief Settlement Commissioner and if it is found that any portion of this property is still un-disposed of, the same may be disposed of in accordance with law. However, it is observed that before taking decision whether any portion of the whole of the property still is un- disposed of, the persons who are likely to be affected shall be heard.
14. For the foregoing reasons ICAs. Nos.5/C-86 and 6/C-86 are hereby accepted. Judgment, dated 23-6-1986 passed by the learned Single Judge in C.M. No. 2016/C-80 and C.M. No. 5672/C-80 is set aside and these civil miscellaneous applications dismissed. I.CAs. Nos.7/C-86, 8/C-86, 10; C-86, 11/C-86, 12/C-86, 14/C-86, 16/C-86 and 1/C-87 are dismissed with no order as to costs.