ANWARUL HAQ, J.---By means of this petition under Article 98 of the Constitution the two petitioners, Mst. Ummal Mabin and Mst. Ummal Arbab, daughters of the late Syed Irfan Hussain, seek to challenge the correctness and legality of the various orders passed by the officers of the Claims Department rejecting their claim in respect of their father's property abandoned by him in India due to the Partition disturbances. The case set up by them before the relevant authorities was that their paternal grandfather, named Syed Sultan Hussain, owned considerable property consisting of houses and agricultural land situate in Amroha in the District of Muradabad of the United Provinces in India. In 1946 he created a Waqaf-ul-Aulad by means of a registered deed and himself became the Mutwalli of the property, fixing Rs. 600 per annum as his remuneration.
According to the Waqf deed the remaining income was to be enjoyed by the beneficiaries namely, his descendants. At the time of the creation of the Waqf the Waqif's son Irfan Hussain, and the sons and daughters of the Waqif's deceased son Rizwan Hussain, were alive. Irfan Hussain migrated to Pakistan in 1947 with the two petitioners and their mother Mst. Salma Khatoon. He died soon after coming over to Pakistan. Irfan Hussain's father, Syed Sultan Hussain, remained behind in India and died in 1956.
2. The two petitioners and their mother Mst. Salma Khatoon filed their claim form under the Registration of Claims (Displaced Persons) Act. 1956 (hereinafter referred to as the Registration Act) on the 12th of May 1959 in respect of five unit of property under Schedule 1 and in respect of agricultural land situate in three villages under Schedule IV. This claim was, however, rejected by the Deputy Claims Commissioner, Lahore, by his order dated the 15th of July 1959 on the following grounds:--
(a) That the claim was time-barred and the Mukhtar of the claimants had failed to give a satisfactory explanation for the delay that had occurred in filing the claim,
(b) that the claimants had not been able to establish their title to the property under claim, as the waqfnama executed by Syed Sultan Hussain had not been proved by any body, and
(c) that no certificate had been produced showing that the Custodian of Evacuee Property in India had taken over the property under claim.
3. The claimants thereupon went up in appeal, and by his order dated the 1st of December 1959 the Additional Claims Commissioner remanded the case to the Deputy Claims Commissioner for further inquiry, as he felt that an opportunity had not been given to the claimants to produce evidence in support of their claim. After remand, the Deputy Claims Commissioner, once again reached the same conclusion, namely, that the claimants had failed to establish their title. In his order dated the 3rd of February 1960 the learned Deputy Claims Commissioner appears however to have accepted the genuineness of the Waqf deed, which had been doubted by his predecessor, but he has gone on to observe that there is no evidence to show that any of the properties, in respect of which the claim had been filed, had been declared to be evacuee property or had been treated as such in India, for the obvious reason that Evacuee Laws in India had been abrogated in 1953. He has further added that Zamindari having been abolished in India in 1952, the claim in respect of lands under Schedule IV could not be accepted ; and that the Indian Government not having recognised Waqf-ul-Aulad as a trust, the properties covered by the Waqf were to be deemed to be the personal properties of the Waqif and as such these had been taken over by the Indian Government in the lifetime of the Waqif Sultan Hussain. Finally, the learned officer has also presumed that "the other beneficiaries specified in the waqfnama must, in the ordinary course, be in possession of the non-- Zamindari properties."
4. During the proceedings before the Deputy Claims Commissioner the. Petitioners' mother Mst.
Salma Khatoon died, and the proceedings were continued by the petitioners in their own right as well as in the capacity of heirs and legal representatives of their mother. They filed an appeal against the order of the Deputy Claims Commissioner dated the 3rd of February 1960, but failed once again. The learned Additional Claims Commissioner stated in his order dated the 7th of May 1960 that the learned Deputy Claims Commissioner who had dealt with this matter in the first instance was not justified in doubting the authenticity of the waqfnama ; and that if the only question before him was whether the Custodian in India had taken over the property of the claimants, then he would have replied, as he had done in various other cases, that strict proof in this matter was not called for and an affidavit of the claimants to the effect that the property had been taken over by the Custodian in India would have been sufficient. He added that "verbal assertion of the claimants, even in such cases, should raise presumption in their favour". Having said all this, the learned Additional Claims Commissioner, however, proceeded to observe that after going through the waqfnama, he had come to the conclusion :- "That the Waqf property was not partible and that no such property could be transferred to any of the beneficiaries for the ownership of the same was to remain for all times to come in the Waqif.
The Mutwalli-cum-Manager was to administer the property for the benefit of the heirs of the Waqif.
It is not necessary to dilate on this point any longer for I find the question requiring determination is : have we any power to separate the Waqf property in order to show that out of such and such property the claimants who are beneficiaries were to be maintained, and that for their maintenance provision out of evacuee property or land must be made. During the time I have worked in this Organization I have not come across any instructions on this point, and in my opinion we have no power to make provision for the maintenance of those beneficiaries who have migrated to Pakistan out of the Waqf property which is, I think, now in the possession of the Custodian or in the possession of the beneficiaries who chose to stay behind."
The learned Additional Claims Commissioner concluded his order by saying that whatever be the case he was not in a position to pass any order as he found that the claim was time-barred. He, however, expressed a pious hope that a provision might be made about the maintenance of such claimants out of evacuee property in "our possession", as these claimants could not claim proprietary rights in any evacuee property for the simple reason that they had no right in any property in India.
5. The petitioners applied to the Additional Claims Commissioner for a review of his order dated the 7th of May 1960, drawing attention to the fact that in the case of one Mian Ehsanul Haq shares of the various beneficiaries out of Waqf-ul-Aulad property had been verified in their favour under the orders of the learned Claims Commissioner, Pakistan. The learned Additional Claims Commissioner rejected the review application by his order dated the 9th of June 1960, pointing out that the case of Mian Ehsanul Haq was distinguishable and that in the petitioners' case it was difficult to say that the Waqf property or any share thereof had been taken over by the India Custodian, in the presence of the beneficiaries who had remained behind in India. He once again reiterated his earlier view that the Waqf property could not be partitioned as between the various beneficiaries.
6. Having failed in review proceedings the petitioners then filed a revision petition which came up for hearing before Mr. Muhammad Saeeduz Zaman, exercising the powers of the Claims Commissioner for the Lahore Region. This officer observed that no document had been produced before him to show that the property had been taken over by the Indian Government, when the other son of the Waqif Sultan Hussain was still in India. He stated in his order dated the 12th of September 1964 that the Indian Government had not considered Waqf-ul-Aulad as a trust and accordingly the Waqf property had to be deemed to be the personal property of the Waqif, and as the Waqif died in India in 1956, the Indian Government could not take over this property at that time, as the Evacuee Laws had been abolished in India in 1953. On this view of the matter he also rejected the petitioners' claim. The petitioners thereupon filed an application for a review of this order which was, however, rejected on the 26th of February 1966 by the successor Claims Commissioner on the ground that after the 31st of March 1965 there was no power of review vesting in the Claims Commissioner.
7. It was submitted by Mr. Munir Hussain, the learned counsel for the petitioners, that it was a most unfortunate case in which the Claims Officers at all levels had failed to appreciate the true legal position obtaining under the Indian Administration of Evacuee Property Act, 1950 and the Pakistan legislation regarding the registration of claims, namely, the Registration Act. It was contended by the learned counsel that none of the officers had taken the trouble of referring to section 11 of the Indian Act which would have clearly shown that in respect of properties comprised in a Waqf-ul- Aulad the interest of a beneficiary who had migrated to Pakistan had to be treated as evacuee property, thus entitling such a beneficiary to present a claim under the Registration Act. As regards the question of the claim being time-barred, the learned counsel for the petitioners relied on rule 3(2) of the Registration of Claims (Displaced Persons) Rules, 1955 (hereinafter referred to as the Registration Rules) to the effect that a time-barred claim could not be registered unless delay was condoned by the Claims Commissioner.
8. On behalf of the Claims Department Major Ishaque Muhammad Khan had taken a preliminary objection to the effect that the claim had to be filed by the 28th of February 1958, and as it was filed after that date without obtaining the sanction of the Claims Commissioner, Pakistan, it had to be rejected as time-barred and no question really aros-, of examining it on merits. Even otherwise, it was submitted by the learned representative of the Claims Department, the claim had been rightly rejected for the reason that the Registration Act contained a necessary requirement that the claimant must show that the property under claim had in fact been treated as evacuee property by the Indian authorities, but in the present case no such proof was forthcoming on the record.
9. We shall first take up the question of limitation which has been vehemently canvassed before us by the learned representative of the Claims Department. The question of the date by which the claims had to be submitted is dealt with in rule 3 of the Registration Rules as amended from time to time. Sub-rule (1) of this rule authorises the Claims Commissioner of the area concerned to notify the date up to which applications for the registration of claims shall be submitted, and it also confers on him the power to extend this date from time to time. It is common ground between the parties that the last date under this provision was the 28th of February 1958. It has already been stated that the petitioners did not submit their claim until the 12th of May 1959. The subject of belated claims is dealt with in sub-rule (2) of rule 3, which may be usefully reproduced here for facility of reference :--- "3(2). The Claims Commissioner may, on sufficient "cause being shown entertain any claim submitted after the date fixed under sub-rule (1), and thereupon such claim shall be registered and disposed of in accordance with the provisions of the Act and these rules."
10. It wile be seen that sub-rule (2), reproduced above, contemplates that before a belated claim can be registered and dealt with in accordance with the provisions of the Registration Act and the Rules, the Claims Commissioner of the area concerned has to condone the delay if sufficient cause is shown in this behalf. On page 31 of the relevant file of the Claims Department dealing with Claim No. 7262/T of Mst. Salma Khatoon, there is an application dated the 13th of February 1958 addressed by her to the Claims Commissioner, North Zone, Lahore, stating the circumstances under which she could not file her claim earlier, and containing a prayer that she may be permitted to file her claim in view of the fact that the last date had been extended to the 28th of February 1958. This Umm application was supported by an affidavit, and it bears the Mabi following order dated the 17th of April 1959 passed by Mr. Abdul Qayyum, who is stated to be holding the post of Additional Claims Commissioner at that tine :-- "The applicant Mst. Salma Khatoon is present. In view of Hag, the special circumstances explained and the loss of eye-sight of the applicant, the permission to file a time-barred claim is hereby granted. The claim must be filed within one month of the receipt of this permission, which is being issued today. The applicant has been informed of this order accordingly."
It is clear that the claim was consequently filed in pursuance of this order passed by the learned Additional Claims Commissioner.
11. It was submitted by Mr. Ishaque Muhammad Khan that Mr. Abdul Qayyum, who passed the above order on the 17th of April 1959, was not exercising the powers of the Claims Commissioner and accordingly the permission granted by him was not valid and could not benefit the petitioners.
The learned representative of the Department further pointed out that the delegation of powers made by the Claims Commissioner in favour of Mr. Abdul Qayyum and other Additional Claim Commissioner was only in respect of the Claims Commissioner's powers of revision under section 7(3) of the Registration Act, and did not extend to the condonation of delay in the matter of time-- barred claims.
12. On behalf of the petitioners it was contended by Mr. Munir Hussain that, in the first place, there was a presumption that official acts had been regularly performed and, in the second place, the Claims Department should not be permitted, after the lapse of eight years, to challenge the validity of an order passed by one of its own officers, as the petitioners or their deceased mother were not in a position to question the authority of the Additional Claims Commissioner to grant the permission which they had sought from the Ciaims Commissioner. It is finally submitted by Mr. Munir Hussain that even otherwise it was apparent from the manner in which the petitioners' claim has been dealt with by the Claims Officers at various levels, that it was not finally rejected on the ground of limitation, but on merits, although on mistaken grounds.
13. We consider that there is substance in the submissions made by the learned counsel for the petitioners. We have already pointed out the petitioners' mother Mst. Salma Khatoon had addressed the necessary application, as long ago as the 13th of February 1958, to the Claims Commissioner, North Zone, and it was not for her to dictate as to which officer should dispose it of.
If an Additional Claims Commissioner chose to pass orders on that application after the lapse of 14 months, the petitioners or their mother could not have possibly turned round to insist that the case be dealt with personally by the Claims Commissioner concerned. It is interesting to observe that although Major Ishaque Muhammad Khan contended that the delegation of powers under section 7(3) of the Registration Act did not include the power to condone delay in filing a time-barred claim, yet he was not in a position to make a categorical statement at the Bar that Mr. Abdul Qayyum, Additional Claims Commissioner did not have the delegated power to condone delay in such a case. The learned representative of the Department built his argument merely on the fact that the petitioners' counsel was able to produce a notification of delegation of powers only under section 7(3) which specifically deals with the power of revision conferred on the Claims Commissioner, whereas the general powers are mentioned in section 6 of the Act. In these circumstances, we consider that it must be presumed that Mr. Abdul Qayyum, Addition tl Claims Commissioner, had the necessary power to condone delay ; and even if he had no such power, the Department itself cannot be permitted to challenge the existence of such a power, eight years after the order in question was passed.
14. We also find that the petitioners' claim could not have been registered and dealt with on merits if the delay in filing it had not been condoned, as required by rule 3(2), referred to earlier. It is an admitted fact that the petitioners' claim was registered and examined on merits during proceedings spread over several years. If the intention was to reject the claim as time-barred without condoning delay under sub-rule (2) of rule 3, then the question of examining the merits of the petitioners' claim could not have arisen. We consider, therefore, that in spite of the statements appearing in the various orders passed in this case, it is clear that the hurdle placed in the way of the petitioners by sub-rule (1) was cleared when the claim was registered in accordance with sub- rule (2) of rule 3 and it was for this reason that the various Claims authorities did examine the petitioners' claim on merits as well. It is significant that in his order dated the 1st of December 1959 the Additional Claims Commissioner specifically remanded the case to the Deputy Claims Commissioner for giving an opportunity to the claimants to produce evidence to establish their claim, and that in the final order passed by the Claims Commissioner on the 12th of September 1964 no objection has at all been taken on the point of limitation.
15. The learned representative of the Claims Department drew our attention to Syed Fidvi and others v. Chief Settlement Commissioner, Lahore and others (PLD 1964 Lah. 756), in which it was held (on page 771 of the Report) that the Claims Commissioner had no authority under Act III of 1956 to enlarge generally the date for filing of claims in Schedule V, but he could enlarge the date in individual cases only on good cause being shown. It is obvious that this case, far from going against the petitioners, lends support to their contention that in their individual case the Claims Commissioner had indeed entertained the claim after the specified date which he could do under the rule already mentioned.
16. Coming now to the merits of the case, it is clear to us Ur, that the Claims Officers at various level have indeed misconceived M' the legal position, mainly for the reason that they have not taken the trouble of referring to the specific provisions of law applicable in the matter. They seem to have approached the question primarily in the light of general principles applicable to trusts described by the name of Waqf-ul-Aulad, overlooking the fact that the Indian legislation in respect of evacuee property had materially altered the position prevailing under the Muslim Law in this behalf.
17. The first provision of law which needs to be noticed in this connection is clause (3) of section 2 of the Pakistan Registration Act which defines the word `claim' as meaning "the assertion of a right to the ownership of, or to any interest in, property which has been treated as evacuee property or of which a displaced person has otherwise been deprived under any law for the time being in force in India or in any area occupied by India, except Assam, West Bengal, Tripura and Manipur . . . . ".
18. This definition has to be read along with the provisions contained in the relevant sections of the Indian Administration of Evacuee Property Act, 1950. Clause (d)(1) of section 2 of this Act defines an evacuee as meaning "any person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or fear of such disturbances, leave or has, on or after the 1 day of March 1947, left, any place in a State for any place outside th-, territories now forming part of India". Clause (f) of the same section defines evacuee property as meaning "any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity), 19.. Subsection (2) of, section 11 of this Act makes a special provision in respect of Waqf-ul-Aulad in the following terms :- "(a) Where the Mutwalli is an evacuee, the property forming the subject-matter of Waqf shall vest in the Custodian subject, to the rights of the beneficiaries under the Waqf, if any, who are not evacuees:
(b) Where not all the beneficiaries are evacuees, the rights and interest of such of the beneficiaries as are evacuees shall alone vest in the Custodian."
20. Lastly notice may be taken of sections 7 and 8 of the Indian Act, subsection (1) of section 7 prescribes that "where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property".
Subsection (3) of the same section lays down that "the Custodian shall, from time to time, notify, either by publication in the official Gazette or in such other mander as may be prescribed, all properties declared by him to be evacuee properties under subsection (1)".
21. Subsection (1) of section 8 of the Indian Act is to the effect that "any property declared to be evacuee property under section 7 shall be deemed to have vested in the Custodian for the State . . . . ." Subsection (4) of section 8 declares that "where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf".
22. It will be seen that the petitioners' father Irfan Hussain was admittedly an evacuee from India in accordance with the definition of that term as contained in claus ; (d)(i) of section 2 of the Indian Act, and as such his interest in the Waqf-ul-Aulad property also became evacuee in accordance with the definition of evacuee property contained in clause (f) of section 2 and the special provisions with regard to Waqf-ul-Aulad contained in subsection (2) of section 11 of the Indian Act.
It is also clear that this consequence automatically ensued by operation of the relevant law.
However, reading sections 7 and 8 together, the position which emerges is that even if any property is evacuee property by definition within the meaning of the Indian Act, it has to be declared as such by the Custodian after observing certain formalities, and it is only after such declaration that this property shall be deemed to have vested in the Custodian.st
23. We may now turn our attention to the definition of `claim' as appearing in the Pakistan legislation. It will be observed that according to this definition `claim' means the assertion of a right to the ownership of, or to any interest in, property which has been treated as evacuee property or of which a displaced person has otherwise been deprived under any law for the time being in force in India. The learned counsel for the petitioners contended that the present case fell under the second part of this definition, namely, deprivation under any law for the time being in force in India ; but we consider that Major Ishaque Muhammad Khan rightly pointed out that in this case the clause directly relevant was the first one, as the petitioner's case was clearly to the effect that their father's interest in the Waqf-ul-Aulad property had been treated as evacuee property by the Indian authorities, acting under the relevant Indian legislation. Now the question is what is the meaning to be attached to the phrase "property which has been treated as evacuee property" ?
24. On behalf of the petitioners it was contended by Mr. Munir Hussain that the word `treated' as used in this part of the definition of the term `claim' must be interpreted as meaning that the property has been regarded as evacuee property under the relevant law. In other words, according to the learned counsel for the petitioners, the word `treated' is not to be given any special or extended meaning, and should be equated with the legal definition of `evacuee property' as appearing in the Indian legislation,
25. On the other hand, Major Ishaque Muhammad Khan, the learned representative for the Claims Department, submitted that the word `treated (cannot be regarded as being equivalent to the mere legal definition of the term `evacuee property', and must be given the same substance and content, as has been accorded to it by the Courts in Pakistan while examining the scope of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, The learned counsel drew our attention to the judgment
27. In any case, the same position emerges from sections 7 and 8 of the Indian Act of 1950, to which reference has already been made. In accordance with these sections the property does not vest in the Custodian unless the Custodian has made a declaration in respect thereof under section 7 of D the Indian Act. It is clear, therefore, that in order to establish a claim within the meaning of clause
(3) of section 2 of the Registration Act it is necessary that a claimant must show that he had an interest in property in India which has not only become evacuee by definition but which has been treated as such by means of a declaration under section 7 of the Indian Act.
28. Now, in the present case the position is that the Claims Officers appeared to have accepted that a Waqf-ul-Aulad in respect of certain property was created in India by the petitioners' grandfather Syed Sultan Hussain, that the petitioners' father Syed Irfan Hussain had an interest in that property as a beneficiary and that he did migrate to Pakistan due to Partition of the country.
Having admitted these facts the Claims Officers have then made contradictory observations at various levels to the effect that the Waqf-ul-Aulad property could not be partitioned so as to determine the entitlement of the petitioner's father Irfan Hussain, or that the Waqif Syed Sultan Hussain having remained behind in India, he continued to be in possession, or that his other heirs, namely, the children of a second son Rizwan Hussain, must be enjoying this property and so on. In one of the orders the Additional Claims Commissioner observed that if the share of Irfan Hussain in the Waqf-ul-Aulad) property could be separated, he would have been willing to accept a statement made by the claimants that this share had been taken over by the Custodian, but while rejecting a review application against his earlier order, he went on to observe that it was not at all established that the property had been taken over by the Custodian. Similarly, the learned Claims Commissioner, who passed the final order in this case, misconceived the legal position by observing that the Evacuee Laws had been abolished in India in 1953. It was conceded by Major Ishaque Muhammad Khan that the true position was that certain amendments had been made deleting the provisions relating to intending evacuees, but there was no general abrogation of Evacuee Laws in India. In these circumstances, we are of the view that the Claims Officers not having approached the matter in its correct legal perspective, their orders must be declared to be without lawful authority and of no legal effect.
29. As a result the petitioners' claim shall be deemed to be still pending verification. We have already pointed out that the correct legal position appears to be that by definition and by virtue of certain specific provisions contained in E subsection (2) of section 11 of the Indian Act of 1950 the interest of the petitioners' father Syed Irfan Hussain in the Waqf-ul-Aulad property has become evacuee property and, therefore, the only question for determination is whether this evacuee property has been declared to be such by the Custodian under section 7 of the Indian Act, and if that has been done, then that would be tantamount to the property having been "treated" as evacuee property as required by the Pakistan Registration Act. We would, therefore, remit the case to the learned Claims Commissioner, Pakistan, so as to inquire into the question whether the interest of Syed Irfan Hussain in the Waqf-ul-Aulad property has in fact been declared to be evacuee property by the Indian Custodian under section 7 of the Indian Act of 1950, and if so, then the petitioners would be entitled to have their claim verified in accordance with law. The Claims Commissioner may conduct the inquiry either himself or entrust it to one of his subordinate officers, as he deems fit.
30. In View of the legal questions involved, the parties are left to bear their own costs.