P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.‑This is a petition for a writ of certiorari against the order of Masood Ahmad, J., the then learned Custodian, in Revision No. F. 2(154)/59, dated 21st December 1959 setting aside the order dated the 12th of March 1952 passed by the Assistant Custodian of Evacuee Property, Nawabshah and of the Deputy Custodian of Evacuee Property, Nawabshah dated the 18th of March 1952 which were in favour of the petitioner in exercise of his powers under section 43 (4) of the Pakistan (Administration of Evacuee Property) Act, 1957. Petitioner Dodomal is a Pakistan national. In the year 1951 he applied to the Custodian of Evacuee Property, Sind and Federal Capital, Karachi, for obtaining a non‑evacuee certificate. This application was forwarded to the Assistant Custodian of Evacuee Property, Nawabshah, for disposal. The Assistant Custodian, Nawabshah, after holdingan enquiry, recommended to the Deputy Custodian of Evacuee Property at Nawabshah that 338 acres 14.17/58 ghuntas of agricultural land and one otak belonging to the petitioner may be declared as non‑evacuee. The matter was referred back to the Assistant Custodian and eventually on 19th March 1952 the Deputy Custodian, agreeing with the report of the Assistant Custodian of Evacuee Property, Nawabshah, declared that the petitioner was non evacuee and the above‑mentioned property belonging to him was also non‑evacuee property. The agricultural land in dispute consists of about 340 acres of land. Out of this 280 acres of land are situated in Deh Halani, Taluka Kandiaro, District Nawabshah, and the rest of the land is situated in Deh Pir Wahtio, Taluka Kandiaro, District Nawabshah. The land situated in Deh Halani is the self‑acquired property of one Janjimal, the father of the petitioner. The petitioner claims that this property was gifted to him by his father somewhere in 1919. He also claims that 25 acres of land situated in Deh Pir Wahtio was purchased by him from the Government Barrage Department between the year 1934 to 1944. The father of the petitioner died in the year 1939 and left three sons namely, the petitioner, Sangat Ram and Tillumal. Both Sangat Ram and Tillumal migrated to India after partition and admittedly are evacuees. On the 11th of May 1957 the petitioner made an application for the grant of a certificate under section 21 of Act XII of 1957 for permission to sell the land in dispute. On the 17th of May 1957 he sold about 300 acres of land in dispute to one Ziaul Haque for a sum of Rs. 72,000 without the permission of the Custodian Authorities. An application purported to be signed by Tillumal the brother of the petitioner was received by the Assistant Custodian of Evacuee Property, Nawabshah, through the Deputy Commissioner, Nawab shah, on 12th May 1958, informing the Custodian Authorities that the whole of the property in dispute belonged to the three brothers and that Dodomal had surreptitiously acquired to himself the whole of the property and had sold part of it without any lawful autho rity. It is alleged by the petitioner that this application was repudiated by Tillumal on the 24th of June 1958 before the learned Custodian. But the fact remains that on the 7th of July 1958 the Deputy Custodian, Nawabshah, issued a notice to the respondents to show cause how he petitioner has disposed of the property in dispute without the prior permission of the Custodian and why he should not be prosecuted under section 36 of the Evacuee Property Act XII of 1957 for contravening the provisions of section 21 of the lforssaid Act, The matter was referred by the Deputy Custodian to the Custodian of Evacuee Property for setting aside the order of the Assistant Custodian dated 12th March 1952 and the order of the Deputy Custodian confirming the said order dated 19th March 1952. Thereupon the learned Custodian issued a notice to the petitioner to show cause why the said orders should not be revised under the suo motu revisional powers of the Custodian under section 43 (4) of Act XII of 1957. The petitioner contested the matter before the learned Custodian. He urged before him that 300 acres of land situated in Deh Halani were ‑gifted to him by his father in 1919 and produced in support of his case an entry in the revenue record of 9th January 1928, the translation of which is in the following terms: "Janjimal has given to his son all the survey Nos. shown as per the attested statement on 9‑1‑28‑attested by the Mukhtiarkar." The learned custodian, after considering all the facts and circumstances of the case, found that the alleged gift in favour of the petitioner by Janjimal was not proved but that his two brothers Sangat Ram and Tillumal are also co‑sharers in the property in dispute which belonged to the joint family and on these grounds he set aside the orders of the Assistant Custodian, Evacuee Property, Nawabshah, dated 12th March 1952 and of the Deputy Custodian, Evacuee Property, Nawabshah, dated 19th March 1952. The learned Custodian has declared that the petitioner owns only 1/3 share in the property in dispute. He has further directed that the sale in excess of his share should not be recognized and if any application for confirmation of sale of any part of the property is received, it should not be accepted. He has further called upon the petitioner to render accounts of the income of the share belonging to his brothers realised by him up‑to‑date and to deposit the same with the Custodian. The petitioner has challenged this order and prays that the impugned order should be set aside and a writ of certiorari spay be issued to the learned Custodian. During the pendency of these proceedings the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Division, Hyderabad, applied to be impleaded as a party to these proceedings and on 27th January 1961 he was impleaded as respondent No. 2 in this matter. Mr. Chandnani, the learned counsel for the petitioner, has attacked the order of the learned Custodian inter alia on the grounds (1) that the finding of the learned Custodian that the petitioner has failed to prove the alleged gift made by his father in respect of 300 acres of land situated in Deh Halani, Taluka Kandiaro, District Na. absbah, was not justified on the evidence produced on the record; (2) that the impugned order offends the principles of natural justice; (3) that the learned Custodian was not justified to hold the property purchasedby the petitioner namely 40 acres of land from the Barrage Department as belonging to the joint Hindu family between 1934‑1944 as admittedly it was purchased by the petitioner in his own name and had nothing to do with Janjimal the father of the petitioner; and (4) that the learned Custodian should not have set aside the orders of the Assistant Custodian and Deputy Custodian as the property in dispute is exclusively mutated in the name of the petitioner and on this basis he should have held that the property in dispute, even if it belonged to Janjimal, was now in adverse possession of the petitioner and he had acquired a good title on that basis. We will deal with the objections, raised on behalf of the petitioner, separately. The most important question for consideration in this case is whether the learned Custodian was justified in holding that the petitioner has failed to prove the gift made by his father in support of 300 acres of land situated in Deh Halani, Taluka Kandiaro, District Nawabshah. It will be noticed. that this property was acquired by Janjimal in or about the year 1900‑01 and the finding of the learned Custodian also was that it was the self‑acquired property of Janjimal. It will be further noticed that Janjimal died in the year 1939 and left three sons viz., Dodomal the petitioner, Sangat Ram and Tillumal. It is admitted at the Bar that if the alleged gift in favour of the petitioner is not found to be proved, the property belonging to deceased Janjimal was a joint family property and devolved on his three sons. In the year 1951 the petitioner did not allege that the property in dispute was given to him by his father by way of gift. The position taken by the petitioner in the year 1951 as found by the learned Custodian is as under: "In the application dated the 3rd May 1951, on which the proceeding originally started, Dodomal did not disclose where from he got this property. His allegations simply were that he was a loyal and faithful citizen of Pakistan, that he had never gone to India and that the property in question, which belonged to him, had never been treated as evacuee property. In support of his allegations, two witnesses Jhakhanmal and Kundanmal were examined by the Assistant Custodian on the 13th August 1951. The first mentioned deposed that all the lands in possession of Dodomal had been purchased by himself and 'that he did not inherit any ancestral property. He also deposed that no partition of his father's property took place between him and his brothers. The second witness, Kundanmal, deposed that about 40 acres of land, including a garden of about 15 acres, had been purchased by Dodomal, while the rest of the property in his possession had been inherited from his father. He deposed further that after the death of Dodomal's father, the property left by' him had been partitioned between him and his two brothers; who had been doing business separately at Quetta." The learned Custodian further found that on 30th October 1951 the Assistant Custodian of Evacuee Property made a report to the Deputy Custodian that Dodomal was in possession of the land belonging to the share of his two brothers which had devolved on them on inheritance after the death of their father but in spite of that later on the Assistant Custodian without any proper inquiry came to the conclusion that the whole of the land belonged to Dodomal and the Deputy Custodian also agreed with this finding. The learned Custodian, after a thorough inquiry, has come to the conclusion that these findings were not based on any cogent evidence. Therefore he considered afresh the case of the petitioner set up before him that his father Janjimal had gifted the property to him in the year 1919 and his appraisal of the petitioner's case is as under: "When the present proceedings started, the Deputy Custodian examined Dodomal first on the 24th June 1958, and again on the 4th and the 16th December 1958. He also examined one Ziaul Haq as a Court witness. The position taken by the Dodomal in his statement recorded on.the 4th December 1958, is that his father died in the year 1939, that some 20 years before his death all the three brothers separated, that at the time of the separation his father transferred all his land, which measured 300 acres, in his name and that he gave Rs. 40,000 to his two brothers, Tillumal and Sangatram for the purpose of carrying on their business at Quetta. Certain copies of revenue records were produced before the Deputy Custodian and some more copies have been produced before me." On this material the learned Custodian has arrived at the follow ing conclusion: "From a perusal of the copies of the revenue records which are on the file, however, no doubt remains that a greater part of the land in dispute i.e. about 300 acres, had been acquired by Janjimal in or about the year 1900‑

01. His three sons were not taking any part in the management of the family affairs and, therefore, court not have , contributed anything towards the acquision of this property. As there is nothing on the record to shaw that Janjimal had inherited any property from his own father, the property in .dispute acquired by him in or about the year 1900 must be considered to be . as self‑acquired property. Janjimal could therefore have made a gift of this property in favour of any one including his sons. The question, however, is whether such a gift was made in favour of Dodomal so that in his hands this property became his exclusive property. There is nothing on the record to show that any such gift was made nor had Dodomal made any such allegation until the 4th December 1958. It was then that for the first time he had alleged that some 20 years before his death, i.e., in the year 1919, his father had given 300 acres of land to him and he paid Rs. 40,000 to his brothers in cash. If the intention of Dodomal's father was to make a gift of this property, he could have expressed that intention in clear language by making a statement before the Mukhtiatkar or by executing a document. No such document was produced nor were the contents of the statement said to have been made in the year 1928 before the Mukhtiarkar placed before me. It was not even explained why, if this gift had been made in the year 1919, Janjimal waited for about 9 years i.e., until the year 1928 before he had the land recorded in the ownership of Dodomal. The story of the alleged gift, therefore, is not supported‑by the record and as it is not the petitioner's case that after the death of his father, the joint family property was partitioned between the three brothers, this property must be considered to be joint family property. It is no doubt, true that after the death of his father, he acquired about 40 acres of land, but as he had in his possession substan ce of the nucleus of joint family property in the shape of 300 acres of land, the remaining land could have been acquired with the income of the joint family property and therefore, the acquired property would also partake the character of joint family property." His final conclusion on the matter in dispute is as under: "There is nothing on the record to show that Dodomal was not the eldest son of Janjimal, but assuming for the sake of argument that he was not the eldest son, the mere fact that he was recorded as owner of this land would not necessarily mean that his father had made a gift of it in his favour. Admittedly, the other two brothers of Dodomal were living at Quetta and it might be that for facilitating management of this property, Janjimal, who was getting too old, had the name of the son who was living near him recorded as owner in the reverse records without intending to make a gift of that property to that son. In any case, in the absence of clear evidence to show that any such gift was made or that Dodomal's name was recorded as owner of this land in consequence of a family, arrangement arrived at between the father and the sons, Dodomal cannot be considered to be the sole owner of this property nor of that which he acquired afterwards, presumably with the income of this property." The petitioner in this case has not produced any other material before us to find out whether conclusions of the learned Custodian on the question of the alleged gift in favour of the petitioner is correct or not. The only document on which the petitioner has relied is a copy of an entry Exh. 7/1 which has been reproduced earlier and shows that in accordance with the statement made by Janjimal, father of Dodomal, on 9th January 1928 his land situ ated in Deh Halani was transferred in his favour. The petitioner has not produced before us the original statement alleged to have been made by his father on 9th January 1928 before the Mukhtiar kar and there is nothing on the record to show what was the, statement made by Janjimal on the basis of which this entry was recorded in favour of the petitioner. Mr. Chandnani admitted that this statement is not traceable but strongly urged that this entry was sufficient for supporting the gift alleged to have been made by the father of the petitioner in the year 1919. Now, so far as a gift by a Hindu is concerned, it is governed by section 123 of the Transfer of Property Act. Under this provision of law a gift made by a Hindu should be by a registered document and unless and until it is so executed it is not valid and operative between the heirs of the deceased person. This question was considered by a Division Bench of the Sind Judicial Commissioner's Court in Sh. Assudibai Sahijram v. Sh. Haribai and others (A I R 1943 Sind 177). The learned Judges of the Judicial Commissioner's Court in that case held that there can be no valid gift of one's immovable property to another by mere entries in the mutation registers. Davis, J. C., in this connection observed as under: "Now, there is no doubt that there was no valid gift of Lalchand's immovable property to Vasud mutation registers. There could be no valid by entries in the immovable property in this manner." In Nirman Singh v. Lal Rudra Partab Narain Singh (I L R 48 All. 529) their Lord‑ships of the Privy Council referred at page 539 to the- "mischievous but persistent error tha39 to the mutation of names are judicial proceeding proceedings for the and the proprietary rights in immovable pas in which the title to They are nothing of the kind, as has been pointed out times determined innumerable by the Judicial Committee." On this views of the law Mr. Chandnani had to admit that in Sind no valid gift can be created by mere entries in the mutation registers. It therefore appears to us that apart from the fact whether any statement was made by Janjimal in favour of the petitioner and what was its nature, the petitioner cannot claim a valid gift in his favour in respect of the 300 acres of land situated in Deh Halani on the basis of mere entries in the mutation register. In order to be a valid gift in his favour it was necessary for him to produce a registered gift and in its absence the finding of the learned Custodian that the petitioner has failed to prove a valid gift is absolutely correct and cannot be interfered with. We also agree with the learned Custodian that in the absence of the statement of Janjimal alleged to have been made on the 9th of January 1928 before the Mukhtiarkar, it is not possible to say whether the above mentioned property was given to the petitioner by way of gift or for the purposes of management on behalf of his brothers who admittedly were not residing at the material time in Sind but doing business in Quetta. It was next urged by Mr. Chandnani that the learned Custo dian did not allow the petitioner to lead certain evidence in support of his contention that there was a disruption in the joint Hindu family in the year 1920 and that all the members of the joint Hindu family namely, Sangatram and Tillumal were acquiring property in their own names out of the income earned by them in their business. The petitioner has produced in this connection certain documents before us. In the first instance, the discretion to admit certain evidence before the learned Custodian is a matter entirely within his jurisdiction. Secondly, the document produced along with the petition are not of such a nature which can conclu sively prove that there was a disruption in the family of Janjimal and that he had separated his two other sons and given each of them Rs. 40,000 in cash. At best the document shows that Saagatram, Tillumal and Panjumal son of Sangatram had purchased certain properties in Quetta in their own names. If these persons were doing separate independent business and had acquired property in their own name, this fact by itself cannot show that there was a disruption in the family of Janjimal. In Hindu law, if some members of the joint family undertake inde pendent business and acquire some property out o f its income and the property is not thrown in the common stock, it will continue to remain as self‑acquired property of such members. There can be no dispute on this aspect of Hindu law. Mr. Chandnani refered us in this connection to a decision of Srinivas Mrishnarao Kango v. Narayan Devji Kango (A I R 1954 S C 379). This decision also goes against the contention of the petitioner. The learned Judges of the Indian Supreme Court observed in the case as under: "Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self‑acquisition to establish affirmatively that the property was acquired without the aid of the joint family property." This view is based on a decision of the Privy Council in Appala swami v. Suryanarayanamurti and others (A I R 1947 P C 189 at p. 192=P L D 1947 P C 200). In the face of this well‑settled principle of Hindu law, the contention of the learned counsel for the petitioner in this respect is not well‑founded and cannot be accepted by us. In our opinion, the view of the learned Custodian about the factum of the gift is absolutely correct and no exception can be taken to it in the writ petition. Moreover, this Court in its writ jurisdiction cannot sit against the order of the learned Custodian as an Appellate Court; it can only interfere with the impugned order if there is any error bf law apparent on the face of the record. Mr. Chandnani has failed to make out a case of this nature in this writ petition. It was next urged by the learned counsel for the petitioner that the impugned order offends the principles of natural justice. The only point urged is that the learned Custodian did not allow the petitioner to produce certain documents which had been filed along with the writ petition before us. We have already discussed the importance of these documents and in our opinion the learned Custodian was perfectly justified in not taking them into considera tion because they are wholly irrelevant for the decision of the point before him. M. Chandnani next argued that learned Custodian should not have declared the 40 acres of agricultural land acquired by the petitioner between 1934 and 1944 from private parties and Barrage Department as belonging to the joint family. On the finding of the learned Custodian that the petitioner was holding the property in Deh Halani on behalf of the members of the joint Hindu family, his conclusion that there being sufficient nucleus of the joint family property with the petitioner, these properties were also of the joint Hindu family, does not suffer from any illegality. No evidence was led before the Custodian that the petitioner was doing any independent business and he acquired the property from private sources. No exception can be taken to the finding of the learned Custodian. Lastly, it was urged by Mr. Chandnani that the learned Custodian failed to observe the case of the petitioner that he had acquired title by adverse possession. No such plea was taken before the learned Custodian and has not been taken in the writ petition. In the absence of such plea before the learned Custo dian the greivance of the petitioner is wholly imaginary. There is nothing on the record to show that the possession of the petitioner was open and hostile against his two brothers Sadgatram and Tillumal. In these circumstances the plea of the petitioner in this respect has no value in the eye of law. In the result, we hold that the impugned order does not suffer from any error apparent on the face of the record. Accordingly the petition is dismissed with costs. K. B. A. Petition dismissed.