P L D 1956 Sind 189 (PLP)

TYABJI, C. J.

‑This is an application under section 34 of the Pakistan (Administration of Evacuee Property) Ordi nance, 1949. The respondents contend that this Court has no jurisdic tion to entertain or adjudicate upon the questions arising in this appeal, and pray that it should state those questions with relevant particulars and remit them to the Custodian for his decision and adjourn the proceedings until that decision is given. The material facts are these. A plot of land bearing survey No. 396 with a well thereon was requisitioned on the 28th August 1941 by the Government of India under rule 75A of the Defence of India Rules, as the water from the well was required by the military authorities. The land and the well belonged to a joint Hindu family, which consisted of the appellant, Ramchand, his brothers Gangaram and Jamandas, his wife and his two sons, who are all therefore interested in the property. The requisition was for the use and occupation of the land and the well for an indefinite period. As there was a dispute between the requisitioning authority and the owners with regard to the compensation payable to the owners, the Chief Judge of the Small Causes Court at Karachi Mr. Thadani, was appointed arbitrator on the 5th January 1943 under sec tion 19 of the Defence of India Act, who made his award on the 16th September 1943. The owners being dissatisfied with the award, filed this appeal, contending that the amount awarded was inadequate. Appellant Ramchand, as the "karta" of the joint family, represented the owners before the arbit rator and also filed this appeal. His brothers Gangaram and Jamandas and his two sons have since left Pakistan and gone to India and are, it is contended, evacuees. It is now contended by the respondents in this application that on these facts the questions which arise in this appeal include the questions whether Gangaram, Jamandas and the wife and the two sons of the appellant Ramchand are or are not evacuees, and what compensation each of these is entitled to ; and it is contended that these questions can only be adjudicated upon by the Custodian. I do not think that this contention can be upheld. We are not at all concerned in this appeal with any question whether any property is or is not evacuee property. The main question in this appeal is, what is the proper compensa tion due to the owners whether they be evacuees or not in respect of the use and occupation of the land and the well in Survey No. 396, which was requisitioned, and this is not a question which the Custodian is 'empowered to determine under the Ordinance, but is one which must be determined by us. It is not necessary to decide any question which under the Ordinance can only be adjudicated upon by the Custodian in order to dispose of this appeal. This application must there fore be rejected. It is necessary to refer to one or two other points which were argued before us. Mr. Siraj, who appears on behalf of the appellant, Ramchand, while opposing this application, also contended that the Ordinance under which this application is made was ultra vires, as it contravened the provisions of section 299 of the Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947. He pointed out that the Ordinance empowered the Custodian to take over properties belonging to persons described as evacuees, in the Ordinance, and under the provisions of the Ordinance the properties so taken could be allotted by a rehabilitation authority to any person "for the purposes of the rehabilitation of refugees or social or economic rehabilitation in Pakistan," without any provision having been made for the payment of any compensation therefor, or for the fixing of any amounts of compensation, and without laying down any princi ples on which, or the manner in which, the compensation was to be determined. The Ordinance is clearly open to this criticism. Since the hearing of this application, however, (section 299) has been amended with retrospective effect by the passing of the * (This space has been left blank in copy of judgment; the reference is to section 2 Government of India (Second Amendment) Act, 1951=P L D.1951 C. A 254.)'s which now clearly makes it impossible to challenge the validity of the Ordinance on this particular ground. Mr. Siraj further argued that section 34 of the Ordinance could not even otherwise apply as the subject matter of this appeal could not be described as relating to "property" within the meaning of that term as defined in clause (5) of section 2 of the Ordinance which says Property means property of any kind, and includes any right or interest in such property and any debt or actionable claim, but does not include a mere right to sue or a cash deposit in a bank." He argued that as the subject matter of this appeal was not any "Property", there could be no question here as to whether the property was or was not evacuee property. He argued that the claim made in this appeal was based on nothing more than a mere right to sue". In my view this contention can not be upheld. The owners of the land and the well in this case were clearly and admittedly entitled to monetary compen sation under the Defence of India Act for the occupation of their land and use of their well for the period from the date of the requisition. That the respondents owed a substantial amount to the owners on this account is not in dispute. The only dispute is as to what was the proper amount of compen sation. This amount, whatever it may ultimately be found to be, undoubtedly was property belonging to the owners being a sum payable by the respondents to the owners under the law. It clearly falls within the meaning of the words "property of any kind and includes any right or interest in such property or any debt or actionable claim." It was not a "cash deposit in a bank", and it is impossible to uphold the contention that it was no more than "a mere right to sue." Several rulings were cited before us, including 14 M I A 40, A I R 1933 Nag. 6 and A I R 1935 Cal.

751. The most helpful on the point taken is the Privy Council decision on in Syed Tafazul Hussain Khan v. Raganath Parshad(14 M I A 40), which contains a very instructive discussion of the distinction between pro perty in existence, which could be seized and attached in execution and something which amounted to a mere expect any of future property and was no more than a mere right to sue. The question in that case was whether the claim of the plaintiff Ramnath in a particular suit, in which the dispute had been referred to arbitration could before the award was made properly be attached and sold in execution proceedings. The facts in that case were briefly as follows: Banarsidas had obtained a decree for Rs. 683 against Ramnath. Ramnath and Sheonath carried on a business in partnership. Ramnath filed a suit against his partner Sheonath for accounts and a partition, and an order was made for taking accounts. Ramnath there after died, and his son and representative, Rughoonath and the defendant Sheonath then referred their dispute in the suit to certain arbitrators. The arbitrators made their award on the 26th October 1866. While the arbitration was pending, a day before the award was made (on the 25th October 1866) Banarsidas, in execution of his decree against Ramnath, had "the claim of Ramnath v. Sheonath" which "has been referred to arbitrators" sold through the Court. By their award the arbitrators awarded Rs. 34,000 to Ramnath's son Rughoonath, as Ramnath's share of the assets of the partnership to which Rughoonath had become entitled, and awarded all the out standings of the business to Sheonath. The question was whether the attachment and sale of the claim of Ramnath v. Sheonath, which had been referred to the arbitrators through the Court, had been properly effected, which depended upon the question whether what was seized by attachment and sold was property which was in existence at the time when it was attached and sold. The decision was that it was not, and that what had been attached was "a mere expectancy or a mere right of Suit". In deciding that what it was alleged had been attached was a mere right of suit, the Privy Council empha sized the fact that the attachment was not of the several share of Rughoonath in the outstanding debts due to the partnership, that at the time when the attachment was made Sheonath was under no liability to pay anything at all to Ramnath or his son, and that it was quite competent for the arbitrators under the terms of the reference to award money to be paid by, instead of to, Ramnath's son and to award him the outstanding debts. They emphasized that the amount awarded by the award had no existence of any kind before the award, and was a debt first created by the award, that it was not the liquida tion of a preceding unliquidated demand ex contractu. They emphasised that the thing attached was not an existing debt of which the uncertainty at the time of attachment of sale was "limited to a mere question of quantum", and they pointed out that the thing in fact attached and sold was : "a thing utterly incapable of being estimated or valued, as vague and uncertain and unmeaning a description as if it had been all the claims of Ramnath against all his Debtors." They emphasized that the thing attached could not be regarded as an existing debt owed by a particular person to another person, which could be specified, estimated and valued. It seems to me to be clear from the reasoning of this decision that an existing debt owed by an individual to another, which could be specified, estimated and valued, even if there was an uncertainty with regard to its quantum, would have been regarded by the Privy Council in that decision as property which could be attached and sold in execution. With regard to the kind of property which cannot be attached, they stated : "Future property cannot be attached. It appears plainly from these passages that a mere expectancy, or a mere right of suit, cannot be attached, that the attachment must operate at the time of attachment, and not be anticipatory, so as to fasten on some future state of property in which the suit may result." By way of illustration they stated "Thus, if the land of A. be held by A. subject to an option in B. to take it at a definite price or sum, the attachment must be of the land and not of the price." It is impossible to assert in the present case that the claim of the owners in this case is not in respect of an existing debt, a present right to a sum of money due to them by the respon dents : when it is admitted that such a sum is payable to them B by the respondents and the only question is with regard to its quantum. The English decision in Dawson v. Great Northern and City Railway Company ((1905) 1 K B 260), which was not cited to us at the hearing, but was shown to me by my learned brother, is also very helpful here. The facts in that case were these. Blake, the owner of certain freeholds, sold to the Railway the right to the sub‑soil undersurface of his premises for the purposes of a tunnel, subject to his right to claim for any structural damage that might be caused by the works of the Railway. At a later date Blake sold his freeholds to Mrs. Dawson, sub ject to the easement granted to the Railway, and assigned to Mrs. Dawson all his rights against the Railway. Subsequently Mrs. Dawson sued the Railway for compensation for structural damage to the premises conveyed to her through drainage or subsidence caused by the works of the Railway ; and the question arose whether this assignment was valid. It was argued that the assignment was bad as it was an assignment of a mere right to sue. It was held however that the assign ment was not of a mere right to sue but of' property and was good. Stirling L. J. stated (at page 271) :‑ "An assignment of a mere right of litigation is bad Prosser v. Edmonds (1 Y & C. Ex. 481) ; but an assignment of property is valid, even although that property may be incapable of being recovered without litigation : see Dickinson v. Burrel ((1866) R 1 Eq. 337). It was said in argument that the right which Blake purported to assign was simply a claim to damages for a wrongful act, and therefore incapable of assignment. With this con tention we do not agree. It was, in our opinion, a right, arising directly under the notice to treat served by the defendants, to compensation for damage which might be done in the lawful exercise of powers conferred on them by the Legislature. The compensation was a sum to be ascertained in the way prescribed by the Legislature, and payment thereof by the defendants was imposed on them as one of the terms of the exercise of those powers. The payment may be regarded as the price payable for the exercise of the powers, and in our judgment was property. Even if the assignment be regarded apart from the conveyance of the lands and buildings comprised in the deed of August 17, 1901, it appears to us that it is good." The contentions that the Ordinance was ultra vires and that the claim made by the owners was not a claim relating to property must therefore be rejected. It was pointed out by the respondents, while the application was being argued, that the interests of the owners, who are evacuees, have, under section 6 of the Ordinance, vested in the Custodian, with effect from the 1st March 1947. It necessarily follows that the interests of the evacuee owners in this appeal should 'be represented by the Custodian. The learned Advocates for the respondents have agreed to inform the Custodian of the advisability of his applying to appear on behalf of the evacuees in this appeal. The respondents now allege that appellant Ramchand has also gone away to India and become an evacuee. This is denied by Mr. Sharifudin. CONSTANTINE, J.‑--I agree. The first question in this appeal is whether there is a question falling within the terms of section 34 of the Ordinance. That Ordinance which ousts the jurisdiction of this Court in certain cases crust be construed strictly. It was first argued that the question of compensation itself was a question which fell within terms of that section, but that is not correct. In so far as it is merely a question of valuing what has passed from the appellant to Government, it is clear it is no question whether any property is evacuee property. It is true that this Court may award a larger sum of money than that awarded by the Arbitrator, but that money is in the future and is not existing, and therefore is not within the meaning of property in the Transfer of Property Act, an Act which the Ordinance appears to follow. It is then argued that the appellant claimed a use of water which‑ the Arbitrator has said that he was not entitled to, and therefore there was a question whether this use of water belongs to an evacuee. That, however, is not the position. Any use of water for which the appellant claims compensation has vested in Government, and the question to satisfy the terms of section 34 must be not whether the appellant was entitled to such use of water before requisition, but whether he is now entitled to it. A distinct question, which was also raised in argument, was whether it was necessary for the Custodian to be joined as a party. It was contended that the right to sue in this case was a mere right to sue, but as has been pointed out both on the authority of learned commentaries on the Transfer of Property Act and of both English and Indian cases, this was not a mere right to sue, but was right to sue which would devolve under the Ordinance upon the Custodian in respect of evacuees. When this question was first argued, I understood that there was no question as to which of the entitled parties were evacuees and which were not. During however the last stages of this argument a statement was made at the Bar by the learned Advocate‑General of Sind, appearing for the Government of India, that the appellant Ramchand was now an evacuee, but this was denied by Ramchand's counsel. This matter, however, may be postponed until the Custo dian himself appears before us. A. H. Application rejected.