1. ZAFFAR HUSSAIN MIRZA, J.-This Latters Patent Appeal arises out of the judgment of the learned Single Judge Nurul Arfin, I. (as he then was) passed in exercise of appellate powers under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) whereby the appeal of the present appellant the Evacuee District Trust Committee, Hyderabad was dismissed.
2. The facts are that the dispute in this case relates to property consisting of a shop bearing C. S. No. C/2160, situate in Shahi Bazar. Hyderabad, which was transferred by the Settlement Authorities to the respondent Muhammad Ismail as per order of the Additional Settlement Commissioner dated 6-12-1960. A review application filed by one Sikander on the ground that the property comprised a Mandir (temple) was dismissed by the Additional Settlement Commissioner. Upon inspection by himself which revealed that there were no idols kept in the premises for worship. Further review and a revision before the competent Settlement Authorities also met the same fate and it was observed in that order of the last Settlement Authority that the aggrieved party may take the dispute to the civil Court in view of the Supreme Court decision that the status of any evacuee property whether it was trust property or otherwise was a matter within the jurisdiction of the civil Courts in the state of law as it then existed. The matter was then taken up before the Chief Settlement Commissioner, but In the meantime section 4 of the Act having been amended, the case was transferred to the Settlement Commissioner, Hyderabad (Mr. M. A. Kazi now a Judge of this Court) for decision in terms of subsection (3) of section 4 of the Act as amended.
3. The learned Settlement Commissioner, Hyderabad, examined the record in respect of the property in question and found that after the survey of 1922 the property was entered in the record as a charitable endowment and the name of the Manager was shown as Gomi Bai wife of Gokal Mal. It seems an inquiry was held sometime later concerning this property and the statements of Gomi Bai and Ramoomal were recorded. Gomi Bai stated that she bad no claim over this property, as she was only a tenant. An entry was then made in the Enquiry Register to the effect that the word "charitable" had been wrongly entered and It was a (private Mandir). This alteration was made as a result of the aforesaid Inquiry on 18-5-1929. Thereafter the property was entered in the names of co-sharers Ramoomal, Shamoomal and Mirchoomal Kirat R.I and the title was shown as having been devolved by inheritance and partition. In view of this evidence the learned Settlement Commissioner came to the finding that no charitable Trust was created touching the property nor had the same been dedicated for a Mandir. He was of the view, however, that the owners may have kept their family idols in that room for private worship, but it seems family idols were taken away by the members of the family along with themselves leaving the property bereft of any sign of its having been used for religious purposes. Thus he justified the treating of the property as evacuee property and having become part of the compensation pool and validly transferred to the respondent. Upon these findings and conclusions the learned Settlement Commissioner dismissed the claim of the present appellant that the property was an Evacuee Trust Property. Aggrieved by this decision an appeal was filed by the present appellant under section 4(4) of the Act which was also dismissed by the impugned judgment. Hence this Letters Patent Appeal.
4. The learned Single Judge re-examined the evidence on record and found that the survey extract shows that the property was a private Mandir owned by the persons mentioned in the order of the learned Settlement Commissioner. He then noticed the distinction between public and private religious endowments under the Hindu Law and came to the conclusion, in the light of the relevant precedents, that the property was attached to a private religious endowment which could be converted to secular property b' the consensus of the family. Upon this basis he proceeded to construe the provisions of section 4(2) of the Act and held the view that the provision contemplated only properties attached to charitable, religious or educational trusts or institutions of public nature only. Therefore, the disputed property in the view taken by the learned Judge was outside the scope of the aforesaid provisions, but in the alternative, he reached the conclusion that as the property ceased to be used since 1947, as private temple, the family idols to whom the property was dedicated having been removed permanently, and all the members of the family having migrated from Pakistan, it must be deemed that the endowment was put an end to.
5. Consequently the property no longer retained the character of a religious endowment at the time it eras treated as Evacuee Property.
6. We have heard Mr. Ajmal Mian, learned counsel for the appellant and Mr. Akhtar Mahmood learned counsel appearing for the respondent.
7. Before the arguments could be heard on the merits of the appeal ML Akhtar Mahmood raised a preliminary objection that the present L. P. A. Was not maintainable. His submission was that in terms of clause (10) of the Lahore High Court Letters Patent, which is applicable to this Court, no- intro Court appeal was competent from a decision of a Single Judge of this Court in exercise of special jurisdiction under section 4(4) of the Act. However, the learned counsel gave up the contention after arguing for sometime: Mr: Ajmal Mian referred us to a line of decisions from the Indian jurisdiction as well some decisions of the superior Courts in our country, in support of the competency of the present appeal. However, since the learned counsel for the respondent did not press the point, it is idle to dilate upon this question.
8. The next question of preliminary nature relates to the delay in filing the present appeal beyond the period of limitation. The appeal was presented along with an application under section 5 of the Limitation Act for condonation of delay. In this application It is conceded that the appeal has been presented with a delay of 24 days. The judgment in appeal was passed by the learned Single Judge on 23-2-1968 and the application for copy was submitted on 14-3-1968. The copies were made ready on 3-4-1968 and the appeal was filed on 7-5-1968. Thus, if the time taken for obtaining the copies is excluded the appeal was filed 23 days after the expiry of the limitation period. In support of the prayer for condonation it was urged that Mr. Jamali learned counsel who appeared for the appellant before the learned Single Judge had intimated to the appellant that the appeal was to be filed in the Supreme Court within 60 days The letter of Mr. Jamali was dated 4-4-1968.
9. The case was then stated to have been entrusted to Mr. Ajmal Mian, Advocate on 22-4-1968 for preparing a petition for Special Leave to appeal to the Supreme Court and for the purposes of such petition the limitation was due to expiry on 12-5-1968, excluding the period spent for obtaining the certified copy of the judgment. However, on studying the law Mr. Ajmal Mian was of the view that the Letters Patent Appeal would be competent inn this Court and no direct appeal could be filed before the Supreme Court. Mr. Ajmal Mian Advocate has now filed a further affidavit confirming the aforesaid facts and has stated that in view of the advice of Mr. S. A. Jamali Advocate contained in his letter dated 4-4-1968, he proceeded on the assumption that a petition for Special Leave to Appeal in the Supreme Court was to be filed, for which there was ample time when he received the papers on 2t-4-1968. He further stated that on the aforesaid basis he wrote a letter to the appellant on 2.5-1968 in connection with the court-fees copy of which has been placed on record. Thereafter sometime between 3-5.1968 and 6-5-1968 he studied the legal position and came to the conclusion about a day or two before the date of the presentation of this appeal, that Letters Patent Appeal was to be filed and not a Petition for Special Leave. He intimated this position to the Deputy Commissioner and Chairman. District Evacuee Trust Committee, Hyderabad, through his letter dated 7.5-1968 and simultaneously presented the present appeal in this Court along with an application under section 5 of the Limitation Act. It was contended on behalf of the respondent that the learned counsel had not taken due care and kept away the papers from 22-4-1968 until 6-5- 1968 and, therefore. There is no sufficient ground to condone the delay. On the adjourned hearing the learned counsel for the respondent further endeavoured to strengthen his objec--petition by submitting that section 5 of the Limitation Act is not attracted to the L. P. As. Arising out of orders passed in appeal but is confined to orders passed by a Single Judge exercising original jurisdiction.
10. He argued that the question of condonation of delay is governed by the provisions of rule 4 of Chapter I-A of Vol. V of the Rules and Orders of the High Court of Judicature in Lahore applicable to this Court which provided that an appeal presented after the expiration of 30 days tinder clause
(10) of the Letters Patent cannot be entertained, unless the admitting Bench in its discretion, for good cause shown, grants further time for presentation. On the strength of these provisions counsel referred us to the admission order of this L. P. A. And pointed out that the admitting Bench had not applied its mind to this question and did not in terms of rule 4 extend time for presentation of this appeal. Therefore, counsel contended that at this stage the present Bench hearing the regular appeal is not competent under law to condone the delay. In support of this contention reliance was placed on Harbanasingh v.Karam Chand AIR 1949 E Pb. 299.
11. As regards the first submission It was argued by the learned counsel that the period of limitation for an appeal from a decree or orders passed by a High Court in the exercise of its original jurisdiction is prescribed under Article 151 of the lot Schedule to the Limitation Act, whereas no period of limitation is prescribed by the Limitation Act so fax as orders or decisions of the High Court in exercise of appellate jurisdiction are concerned. The period of limitation for such appeals in prescribed by rule 4 of Chapter I-A of Vol. V of the Rules and Orders of the High Court. The period prescribed under the said Rule is 30 days from the date of the judgment appealed from and under Article 151 the period is 20 days. It was therefore urged that by operation of section 29 of the Limitation Act, the provisions of section 5 could only apply by express provision to that effect. In our view the contention is irrelevant in the facts of this case, inasmuch as rule 4 referred above contains a built in provision for extension of time in case of an appeal presented after the period of limitation, which for all Intents and purposes is in pari materia with section 5, Limitation Act.
12. Therefore, the application under section 51 submitted by the appellant was in substance for extension of time to present time barred appeal.
13. As regards the next submission of the learned counsel that in absence of an order by the admitting Bench to extend time, the Bench hearing the regular appeal cannot condone the delay, it Is sufficient to refer to the case of Faiz A.I Shah v. Chief Administrator of Auquaf PLD 1974 SC 17 where their Lordships held that since the Bench, finally hearing the appeal, raised the question of limitation suo motu in spite of the order of the admitting Bench, which was capable of being interpreted as an order admitting the appeal notwithstanding the office note regarding the delay, the Bench should have in fairness granted the prayer of the counsel appearing in support of the appeal to file an affidavit explaining the delay and praying for its condonation if the explanation appeared to be satisfactory even if no application for condonation bad been filed earlier. In the present case the appeal was posted for Kutcha Peshi and for orders on the' application under section 5 of the Limitation Act on the date when it was admitted to regular hearing by the admitting Bench. It is therefore, reasonable to infer that, as to the reported case the appeal was admitted in spite of the application for condonation of delay and notice was ordered to issue to the respondent. Therefore, if the respondent urges for' dismissal of the appeal on the ground of limitation, in terms of the'--- rule laid down by their Lordships, the appellant would be entitled to; explain the delay and this Bench hearing the regular appeal can adjudicate) on this question. This therefore brings us to the merits of the question whether the delay in presenting the appeal be condoned.
14. Now, it seems the rule is well laid down that mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of section 5 of the Limitation `' Act although such mistake must be made bona fide and not as a result of gross negligence. The principles contained in this rule may well serve as guide lines for exercise of discretion vesting in this Court under rule 4 of the High Court Rules referred to above. There can be n doubt that the question whether a Letters Patent Appeal was competent against the Impugned judgment before us or a direct appeal lay to the Supreme Court, was an intricate question of law and was not free D from doubt. This is abundantly demonstrated by the fact that even before us the question was attempted to be raised on behalf of the respondent that the present appeal Is not competent. It cannot therefore be held that Mr. Jamali, the learned counsel appearing before the learned Single Judge who is a Senior Advocate of this Court, was negligent in tendering advice to the appellant that in this case a petition for Special Leave was to be filed before the Supreme Court. We are also inclined to agree with Mr. Ajmal Mian that he was justified, when he received the papers on 22-4-1968, in assuming that petition for Special Leave had to be prepared for which the period of limitation was 60 days from the date of the judgment excluding the time taken in obtaining copies, A counsel who is supposed to be having other legal work on his hands, is not expected to straightway attend to the question of the forum before which the appeal is to be filed when the opinion of a senior counsel has been g brought to his notice. We also find no force In the contention that Mr. Ajmal Mian did not show duo care in presenting the appeal after he formed the opinion that the appeal had to be presented in this Court. In his affidavit be has disclosed the circumstances in which be presented the present appeal immediately on ascertaining the true legal position without waiting for further instructions and informed his client accordingly. We have no reason to doubt the correctness of the statements made in the affidavit of the counsel. In Muhammad Azeem v. Muhammad Nawaz PLD 1961 Lah. 137 the mistake of a counsel in a case where the question of proper forum of appeal was shrouded in difficulty, was considered not so gross as to] disentitle the appellant from getting the benefit of section 5 of the Limitation,, Act. We would accordingly condone the delay in presentation of this appeal beyond the period of limitation and overrule the objections raised on behalf of the respondent.
15. Adverting now to the merits of this appeal, it may at the very outset be stated that there is no controversy between :he parties that the property in dispute was attached to a private temple at the time of the migration of the Hindu owners. The first question that falls for determination is whether private religious endowments fall within the purview of subsections (2) and (3) of section 4 of the Act. It is prescribed by subsection (2) that immovable evacuee property attached to any "charitable, religious or educational trust or institution shall not form part of the compensation pool.
16. As observed earlier the learned Single Judge has taken the view that this subsection does rot contemplate private trusts which under the Hindu Law can be' put an end to by the consent of the members of the family. He reached this conclusion for the reason that the use of the words "charitable" and "educational" suggests that the trust or institution must be such in which the public has an interest, for, the word "religious" being used along with the expressions "charitable" and "educational" shows that the religious endowments should also be such as are dedicated for the use and benefit of the public. We have given our best consideration to this interpretation but regret our inability to agree that the expression "religious trust" can be given such restricted construction.
17. The first and the most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; and, secondly, that the phrases and sentences are to be construed according to the rules of grammar. This clearly leads to another rule of interpretation that no limitation or qualification shall be imported in the meaning of a term on expression used in the statute where none exists is the ordinary meaning of such term or expression. Applying these rules of interpretation there can be no measure of doubt that the expression "religious trust" would include in its ambit both private and public religious trusts. It is however, permissible under the rule of ejusdam generis to construe the meaning and scope of words used in a statute with reference to other words in the same statute. This rule is attracted in a situation where the use of a general word follows other less general terms. In such a case the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those, words. Unless therefore, there is a genus or category there is no room for the application of the ejusdem generis doctrine. The second essential precondition for the application of this doctrine is that the general word must follow and not precede, other less general terms. The rule contained in this doctrine is not applicable to the present case, firstly because the term "religious" is not used as a genus in comparison to the term "charitable" and "educational" and secondly the word "religious--- in the context of the enactment under consideration, does not follow the other words but is placed in between tile words "charitable" and "educational". There is thus. In our judgment, with all due respect to the learned Single Judge, no room for construing the expression "religious" with reference to the words "charitable" and "educational". No qualification could therefore be imported in the meaning of the term "religious" to confine it to religious trusts of public nature. The obvious legislative intent appears to be to mention three categories of trusts, the properties attached to which were intended to be excluded from being part of the) compensation pool.
18. PLD 1972 Lah. 187 in which the language used in section 7 of the Pakistan Administration of Evacuee Property Act XII of 1957 and section 4 of the Act were compared. It was pointed out that in the former the expression" Property in trust far a public purpose of religious or charitable nature" has been used, whereas in the provision under consideration the expression used is "evacuee property attached to charitable, religious or educational trust or institution". The Court accordingly held that while under section 7 of Act XII of 1957, it is necessary that the property should be in trust for a public purpose of religious or charitable nature, it need not necessarily be so under the Act of 1958.
19. Thus, it will appear that judicial opinion also supports the interpretation that the expression "religious trust" has been used in the wider sense to embrace both private as well as public religious trusts. Gupta in his book on Hindu Law (Second Edition) at page 842 has observed that the practical importance of the question whether the endowment is a private or a public one arises primarily in relation to the nature and scope of the intervention of the Courts and the source of their jurisdiction, specially as certain statutes apply to public, but not to private endowments. The distinction would be important also in the matter of revocability of the endowments. The author says that apart from this there is no distinction between public and private endowments. Since the religious endowments in relation to evacuee property, so far as their administration and management are concerned, had already vested in a public functionary, namely, the Custodian of Evacuee Property, the matters referred to by the learned author in which distinction between private and public endowments assumes importance, would lose all significance. As a consequence it will be reasonable to hold that the Legislature did not maintain the distinction between private and public endowments, enacting section 4(3) of the Act . . . . . .
20. This interpretation also seems to be in accord with the object and the scheme of the Act. The Act visualised, after the acquisition of all evacuee property, under section 4, the constitution of compensation pool for the purpose of payment of compensation to claimants in respect of immovable properties left in India, but immovable evacuee property attached to any charitable, religious or educational trust or institution was not to form part of the compensation pool. Such trust property was to be included in a trust pool constituted under section 4-A of the Acts. Under section 26 of the Act, the Central Government was empowered to require the Chief Settlement Commissioner to prepare one or more schemes, for disposal of immovable property out of the compensation pool. On the other hand under section 16-A of the Act, the Chief Settlement Commissioner was to prepare one or more scheme for the administration, maintenance, management and disposal of property included in the trust pool. A number of schemes have been framed for the disposal of properties included in the compensation pool which separately relates to houses and shop, industrial and unregistered factories, big mansions and hotels and building sites. None of these schemes envisage the disposal of trust properties, for which a separate scheme has been framed by the Chief Settlement Commissioner in exercise of his power under section 16-A. If therefore any property which was attached to a private religious trust could not have fallen within the purview of any of these schemes framed for disposal of the properties in the compensation pool, it could not have been the intention of the Legislature to seclude such properties in the compensation pool and make no provision in the scheme for its disposal.
21. Obviously therefore, all properties attached to trusts of the categories mentioned in section 4(2) whether private or public were to form part of the trust pool to be administered under the separate scheme framed for the purpose.
22. The next question to be considered is whether upon the migration of the evacuee owners from Pakistan and the permanent removal of the idols for whose worship the property was dedicated, by implication the ,religious endowment came to an end and the property ceased to !:e a trust property. The learned Single Judge relied upon the rule laid down In the case of Konwar Doorganath v. Ram Chandar 4 1 A 52 that in the case of family idol the consensus of the whole family might give the estate another direction. This was observation by way of obiter dictum. But was treated as authoritative in a decision of the Calcutta High Court in Gobfhda Kumar v.
23. Debendra (1907) 12 C W N 98. However, in a later decision of the same High Court in the case of Chandt Charan Dal v. Dulal Chandar Palk I L R 54 Cal. 30 the correctness of the prior decision of the High Court referred to above has been doubted. It was observed at page 37 of the report as under :- "The proposition that in the case of family idol, the consensus of the whole family might 'give the estate another direction' cannot be said to be settled. It is based upon observation to that effect in the case of Konwar Doorganath Sen. But their Lordships did not decide the question. There was in fact no consensus of the whose family in that case, for their Lordships observed in the next sentences no question, however, of that kind arises in the present case'. "
24. The learned Judges then observed that in considering this question, the rights of the deity in whom the properties have absolutely vested, and the fact that a Hindu who endows a family deity does so for the worship of his descendants from generation to generation have to be taken into account.
25. In view of this the rule relied upon by the learned Single Judge could hardly be taken as a settled rule of law. Mulls in his principles of Hindu Law (12th Edition) at page 599, has also observed teat the correctness of this decision has been doubted in subsequent cases, and it has been said that even if the consent of the family could effect such diversion, it must be the consent of all members of the family, both males and females. As they are all interested in the worship of the idol.
26. But, however, that may be, the question is, are the facts and circumstances of the present case sufficient to infer and attribute consent to the members of the family for whose benefit the property was dedicated, to the effect that they agreed to convert the property to secular use and extinguished the trust? Now in this connection the facts relied upon are the migration of the members of the family, the removal of the idol and the use of the property as a shop after the migration of the Hindu owners. So far as the last fact is concerned, in our opinion it is not relevant for determining the issue. Obviously, the treatment of the property (or uses other than the object of the trust by a stranger without the consent and the knowledge of the trustee or the beneficiaries would have no bearing on the subsistence of the trust. "Evacuee" was defined to subsection (3) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 to mean 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. Upon the migration of the trustee and the beneficiaries of the trust property, in the circumstances mentioned in subsection (2) of section 2 of the said Ordinance, a trust property, whether private or public, would be deemed to be evacuee property under the provisions of the Ordinance. It is well established that the Legislature is' presumed to be acquainted with the actual state of the law. Therefore, the Legislature was well aware of the distraction between private and public religious endowments under the Hindu Law. If it was intended to treat more migration of the beneficiaries of a private trust to result in the extinguishments of the trust and In the convertion of the property to secular use, the Legislature would have obviously made such a provision. But no such distinction was made and all trust properties were treated equally and obviously retained their character as such until the enactment of Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is quite obvious that the property continued all along to be entered in the revenue record of rights as a private 'Mandir' and since presumption of correctness; attaches to such entries, the onus was upon the respondent to establish that; the property had changed its status and ceased to be a private trust by the consensus of the beneficiaries. No such proof seems to 6e available on the record. It was as a matter of inference from the absence of any idol in the property at present that the learned Settlement Commissioner and the learned Single Judge presumed that the idol must have bees taken away and that in turn was regarded as proof of the fact that the! Beneficiaries had by common consent brought an end to the trust. We area unable to regard these circumstances to be sufficient basis for establishing the factum of consensus. In absence of reliable evidence that each of the beneficiary was a party to such a decision, it will be difficult to hold that the property was by consent of the family members converted for secular purposes. The only conclusion in the circumstances of the c se that could justifiably be drawn is that the property continues to be attached to a religious trust in terms of section 4(2) of the Act.
27. We would therefore accept this appeal. Set aside the decision of the learned Single Judge as well as the Settlement Commissioner and hold the property to be attached to the religious trust. The parties are left to bear, their own costs.
28. I. MAHMUD, J.-I agree.