P L D 1 958 (Cult (PLP)

(4) Whether the petitioner inherited that 1/5th share of her husband on his death ? (5) Whether the petitioner was the owner of that share now ? The marriage was not disputed by the Rehabilitation Authority and the learned Deputy Custodian held it proved on the basis of the marriage certificate, A. W. 4/1. He also held that the marriage was subsisting at the time of Barkat Ram's death. On the evidence relating to an Agreement to refer dispute between Lala Hari Ram and his sons, including Barkat Ram, to arbitration and the award given by Raja Jawala Parshad on 12‑1‑1941, it was held that Barkat Ram belonged to a Joint Hindu Family which by virtue of the above‑mentioned award turned itself into a peculiar entity unknown to a Hindu Law "because the award said that the family would continue to function jointly and no party would have the right to separate. It has been enacted by Section 22 of the Special Marriage Act, III of 1872, that a marriage performed under that Act of any member of an un divided family who professed Hindu, Budhist, Sikh or Jaina religion shall be deemed to effect his severance from such family. Section 24 of the same Act provides that succession to the property of any person professing Hindu, Budhist Sikh or Jaina religion who marries under the Special Marriage Act shall be regulated by the provisions of the Indian Succession Act. Under Section 33, clause. (B), Indian Succession Act No. XXXIX of 1925; if a person dies intestate leaving a widow and some kindred behind, the widow shall take on half and the kindred the other half of his property. The learned Deputy Custodian has expressed some doubt whether the Joint Family could be severed by Section 22 of the Special Marriage Act because the award had made it indissoluble. There is really no room for doubt on this point. The award of an Arbitrator cannot take precedence over the will of the Legislature. 1A The learned Deputy Custodian, however, held that on account of this award no severance of the joint family had taken place and no separate share of the family property had accrued to Mr. Barkat Ram. The learned Deputy Cu3todian went on to say that in order to ascertain the exact share of Mr. Barkat Ram on 10‑8‑1945, when he got married. under the Special Marriage Act, it must be known how many members there were of the family and as there was no evidence to throw light on this point it could not be said that Bal'kat Ram' had acquired 1/5th share in the joint family property. The award and the agreement referred to above and relied upon by the Deputy Custodian showed that the family consisted of Hari Ram and his four song including Barkat Ram. As this evidence was used to show that the joint Hindu family had turned itself into a peculiar entity unknown to Hindu Law", if could have been used to show that there were only five members the joint family. Anyhow, there is nothing to show that there were more than five members of the family: The learned Deputy Custodian found, some evidence adduced, that on 25-3‑1947 the petitioner had instituted a suit for the administration of the estate of her deceased husband against his father and other members of the family: The suit was only against Ch. Hari Ram and his three living sons, Jaishi Ram, Tej Ram and Shiv Ram. The suit was contested but no one raised the plea that there were some members of the joint family who had not been impleaded. It was specifically stated in paragraph 2 of the plaint that before his marriage Barkat Ram was a member of a Joint Hindu Family with defendants1 to 4 named above. The property mentioned in this suit consisted of several items some of which were situated in territories now comprising Pakistan and some in territories now comprising India. The suit was instituted prior to the Partition, on account of which the defendants left Pakistan and the property situated here became evacuee property.' Subsequently the parties to the suit entered into a compromise and on, 10‑7‑1948 the Civil Court passed a decree in terms of the compromise. Some of the property given to the petitioner by that compromise was situated in Pakistan, e.g., the garden and shops in Jaranwala; District Lyallpur. It was pointed out to the learned Deputy Custodian that the compromise effected by the evacuee defendants, in respect of evacuee property and the decree of the Civil Court based thereon were forbidden by law and opposed to public policy. The learned Deputy Custodian, however'; held that by giving up her claim to the share of her husband in the joint family property the petitioner had given away what belonged to her land what belonged to her was non‑evacuee property but he lost sight of the fact that by virtue of the compromise and the decree based thereon the petitioner was also given some property which, according to law, had vested in the Custodian since 1‑3‑1947 and in respect of which no Civil Court had the authority to pass any order or decree. The learned Deputy Custodian observed that when the decree was passed Ordinance XV of 1949 was not in force though it had retrospective effect. The fact that Ordinance XV of 1949 had retrospective effect should have been enough to, Now that the compromise and the decree were not valid, but even under Section 11, Act VII of 1948, which was in force when the decree was passed, the Civil Court was debarred from entertaining or adjudicating on a claim which required determination as to what interest an evacuee had in the property. The Administration suit clearly involved the question whether the evacuees were the full owners of the property in dispute or part owners thereof. The learned Deputy Custodian admitted towards the end of his judgment that some of the property given to the petitioner by the compromise was evacuee property and to that extent he held that the consideration for compromise had failed, but, nevertheless, acted upon the compromise and the decree whereby the petitioner was awarded a sum of Rs. one lac and eighty seven thousand in full settlement of her claim and admitted her interest in the joint family property to the extent of this amount. The Rehabilitation Authority were apparently satisfied with this Order and filed no‑ appeal. The petitioner was dissatisfied and appealed on the grounds, inter alias that the Deputy Custodian had erred in holding that the property in dispute had not been proved to be joint Hindu family property of which Barkat Ram had become 1/5th shareholder on severance of the family by marriage with the petitioner on 10‑8‑45 that the com promise and the decree referred to above were illegal and ineffective and the petitioner having been found to be entitled to succeed to half the share of her deceased husband in the joint family property. The learned Deputy Custodian had no justification to refuse her the declaration prayed for. The appeal was decided by the Additional Custodian, Lahore, on 13‑8‑1957. He reproduced in his order the five issues framed by the Deputy Custodian and the question of limitation, which had not been raised in the trial Court, formed the subject matter of the sixth issue which was decided in the petitioner's favour. The finding of the Deputy Custodian that the petitioner was not an evacuee was accepted by the Additional Custodian and so were his findings that she was lawfully married to Barkat Ram on 10‑8‑1945 and the marriage was subsisting when the latter died. The Additional Custodian, however, disagreed with the Deputy Custodian in respect of the nature of the joint Hindu family and Barkat Ram's share in the family property. He found that the agreement referring the dispute relating to the family property to arbitra tion and the Award of the arbitrator clearly showed that the parties concerned admitted that they constituted a Joint Hindu Family. The statement of Mr. Norman Edmunds, dated 19‑11‑1955, proved that the property in dispute belonged to the joint Hindu family. The administra tion suit filed by the petitioner also showed that Mr. Barkat Ram, his three brothers and their father Hari Ram constituted a joint Hindu family and this was not denied by the defendants who contested the suit on various other grounds. The record of the case filed by the Bank of India also showed that a sum of Rs. six lacs was borrowed from it by Hari Ram; as the Karta of the joint Hindu family, on a pronote dated 24‑2‑1947. Under section 233 of Mulla's Hindu Law, 1952 edition, the normal state of every Hindu family is joint and, given a joint Hindu family, the presumption is that the family remains joint until the contrary a is proved. The fact that some property may be entered in the name of only one member makes no difference to the nature of the property. The learned Additional Custodian, therefore, held that the property ill dispute belonged to a joint Hindu family in which Barkat Ram deceased had 1/5th share. As regards the severance of the family on account of his marriage with the petitioner it was held that by virtue of Sections 22 and 23 of the Special Marriage Act the Joint family was dissolved ands Barkat Ram had become entitled to 1/5th share of the property on 10‑8‑1945 ; but the petitioner, as his widow, was not entitled to the whole but only to half of that share under section 33, clause (b), Succession Act read with Section 4 of the Special Marriage Act. Some doubts were expressed by the Additional Custodian regarding the genuineness of the compromise in the civil suit instituted by the petitioner whereby she had agreed to take Rs. 1,87,000 in full settlement of her claim in the form of properties mentioned in the deed of compromise. Some of that property consisted of agricultural land on which a charge was created in favour of the petitioner and some of the property the defendants agreed to sell in order to pay the amount agreed upon to the petitioner. The learned Additional Custodian held that the compromise and the decree of the Civil Court, dated 10‑7‑1948, offended against the Provisions of Sections 9 and 1 I of the Protection of Evacuee Property Act, No. VII of 1948. Moreover, they were repugnant to the provisions of Ordinance XV of 1949 which had retrospective effect. The compromise and decree of the Civil Court were, therefore, excluded from consideration with the result that the petitioner was found entitled to 1/10th share of the joint Hindu family property in dispute and not 1/5th as claimed by her. The order of the Deputy Custodian dated 5‑7-1956, was set aside by the learned Additional Custodian. The Rehabilitation Authority have filed a petition for Revision against this order of the Additional Custodian. It is said in the petition that Mrs. Barkat Rant did not challenge the compromise or the decree in his application under section 18, that she made no mention of it at all and should not have been allowed to assail the compromise or the decree in the course of the proceedings. Counsel for Mrs. Barkat Ram says that there has no necessity for the petitioner to make any reference to an illegal com promise or decree in her petition and that she was at full liberty to challenge their validity when they were held up as a bar against the relief sought by her. It is urged in the petition for revision that the compromise and the decree of the Civil Court are binding upon Mrs. Barkat Ram and she is estopped from pleading against them. I have dealt with this compromise and decree when considering the order of the learned Deputy Custodian and for the reasons given there as well as for the reasons given by the Additional Custodian, I hold that the compromise and the decree; of the Civil Court were contrary to law and the respondent, Doreen Barkat Ram, was not estopped from pleading that they were illegal. In paragraph 3 of the petition it is said that if the compromise abovementioned was ineffective without the confirma tion or approval of the Custodian the Additional Custodian should have considered the advisability of approving and confirming it. This argument appears to be based upon the provision of section 41, subsection (3) of the present Act, XII of 1957, which says that no decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March 1947, and the 15th day of October, 1949, shall be binding on the Custodian or affect any right or interest of an evacuee unless it is accepted or approved by the Custodian. This section corresponds with the old section 11 of Act VII of 1948, and bars the jurisdiction of Civil Courts in matters relating to evacuee property, but there was no provision in section 11 for validating an order or decree of a Civil Court by acceptance or approval of the Custodian. Even in the corresponding section 34 of Ordinance XV of 1949, which was in force when the Deputy Custodian accepted the decree of the Civil Court by order dated 5‑7-1956 there was no provision for validating such a decree by acceptance or approval of the Custodian. In appeal no application was made by, the Rehabilitation Authority or anyone else for the acceptance or approval of the decree by the Custodian. It has been suggested by the Rehabilitation Authority in the course of hearing that I should give my approval to the decree because the respondent has received some moneys in pursuance of that decree. Whatever she has received will, according to the order of the Additional Custodian be deducted out of her 1/10th share and there is no just cause for me to validate an invalid decree by approving or accepting it at this stage. In para. 4 of the petition it is said that when the, respondent, Mrs. Barkat Ram, applied for restoration of some property to the Custodian she was referred to the Civil Court where she had already filed a suit for Administration. No order of reference by the Custodian to a Civil Court is to be found on the record and as the suit had already been fired tile question of reference by Custodian does not arise. Counsel for the Rehabilitation Authority has referred to a statement made by the respondent in the Court of the Deputy Custodian on 2‑6‑1956. It reads as follows "Just after the Partition I came to know that the property had been taken over by the Custodian. I approached Justice Rahman. His reply was that as there was smite litigation he could not help until the litigation was over". This does not help the Rehabilitation Authority and clearly shows that no reference of tile dispute between Mrs. Barkat Ram and the evacuee owners of the property was made to the Civil Court by the Custodian. Subsection (5) of section 41, Act XII of 1957, says that nothing in the foregoing subsection shall prevent the adjudication by a Civil Court of a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the "Custodian of n with the Custodian's previous approval. In this case the dispute was between a non‑evacuee and evacuees which could not attract the provisions of sub section (5). Moreover, this is a new provision made by Act .X I (of 19571 and did not exist when the suit was instituted or decreed. Under section 25, clause (n), Act XII of 1957, the Custodian can also refer a dispute between an evacuee and any other person to a Civil Court or arbitration but this was not permitted by Act VII of 1948 or Ordinance XV of 1949. Section 20, subsection (2), clause (i), Ordinance XV of 1949 provided for a reference 'by the Custodian of a dispute between an evacuee and any other person to arbitration only and not to a Civil Court. It is not necessary to consider this matter any further because no reference was made to the Civil Court by the Custodian in this case. The decree of the Civil Court was, therefore, "without jurisdiction and it was not necessary for the respondent to have it ''set aside by a Civil Appellate Court prior to impugning its validity before the Custodian. A grievance is made in the revision petition of the Additional Custodian's reference to the file of the Administration suit filed by the respondent and the file of the suit instituted by the Bank of India against the joint Hindu family and some additional evidence having been allowed in appeal. The learned Additional Custodian has dealt very extensively with this aspect of the matter and I can see nothing illegal or improper in what he has done. Under Order XLI Rule 27, Civil Procedure Code, the parties to an appeal have no right to produce additional evidence unless the trial Court has refused to admit evidence which ought to have been admitted. The Appellate Court may also allow additional evidence to be produced to enable it to pronounce judgment or for any other substantial cause. In this case the respondent produced some evidence and the Rehabilitation Authority demanded the right to produce evidence in rebuttal which. In the opinion of the learned Additional Custodian, would have entailed inordinate delay. He did not consider it necessary to call that evidence to enable him to pronounce judgments or .for any other cause and, to be fair to both sides, he excluded from consideration the oral evidence recorded by him. As regards the documentary evidence, that was necessary for the determination of the case and had been admitted by the trial Court. There was nothing wrong in the Additional Custodian referring to it. No objection was taken to the admis sion of this evidence by the Rehabilitation Authority in the trial Court or by way of appeal. According to paras. 8 and 9 of the Revision petition some entries in the revenue records showed some of the agricultural land involved in this case as the property of Lala Hari, Ram and it is urged that the Additional Custodian should have presumed that the property was the exclusive property of Lala Hari Ram. Lala, Hari Ram was the father and the Karta of the family and some laud being shown only in his name does not disprove the established facts that he had four sons and they were joint owners of the family property. Paragraph 14 says that there is no proof that the property in dispute belonged to any Joint Hindu Family. The file relating to the case of Grindlays Bank v. Hari Ram, etc., is sufficient, reply to this assertion: According, to paragraph 11 of the petition if accounts of the joint family property are taken the respondent's husband, Barkat Ram deceased, would be found to be in debt to the joint family. No evidence to this effect was led in the Court of the Deputy Custodian where the petitioner claimed 1/5th share of the entire property nor was any allegation to this effect made and no issue on this point was framed. It is alleged that this point was taken in appeal before the Additional Custodian but this is denied by the counsel of the respondent and there is nothing on the record to show that there is any substance in this allegation. Even in the Administration suit against the joint family none of the defendants pleaded that Barkat Ram was in debt to the 'family or that he was not entitled to anything though they said that the respondent was not entitled to anything for various other reasons. Para. 12 of the revision petition says that the petition of Mrs. Barkat Ram under Section 18, Ordinance XV of 1949, was time barred. This objection should have been taken in the trial Court but this was not done and no issue was framed on this point. The Deputy Custodian gave a declara tion to the petitioner that she was entitled to receive Rs. 1,87,000 (one lac and eighty seven thousand rupees) from the joint family property. This was a substantial drain upon evacuee property but the Rehabilitation Authority did not consider it necessary to appeal against the order on the ground that the claim was time‑barred or any other ground. The objection was taken for the first time in appeal and the learned Additional Custodian, after due considera tion, held that the petition was filed within, the period of limitation and, in any case, it was a fit case for extension of time which he allowed under Section 5 of the Limitation Act. I see no reason to interfere with that order. Paragraph 13 concerns itself with the allottees and says that the appeal should have been' dismissed for non‑joinder of the allottees. There is no force in this contention. The allottees were represented by the Rehabilitation Authority who had made the allotments and no separate notices to the various allottees were necessary. Para. 14 says that the respondent, Doreen Barkat Ram was an evacuee that the entire property involved in this case was treated as evacuee property and the remedy of the respondent was to have recourse to a Civil Court for the determination of her claim relating to that property and not to make an application for a declaration under Section 18 to the Custodian. The propo sition is too apparently untenable for serious consideration. Paragraph 15 says that the respondent was not lawfully married to Lala Barkat Ram. 'On the evidence of Mr. Edmunds, an attesting witness of the marriage certificate, and several other respectable witnesses the trial Court held that the respondent was lawfully married to Mr. Barkat Ram and the marriage was subsisting when the latter died. It was the duty of the Rehabi litation Authority to 4ppeal against this finding if they were serious about the assertion that the respondent was not the wife of Barkat Ram. The finding of the trial Court is that the marriage was valid and that there was no dispute about it. Paragraph 16 of the petition talks of issues having : been framed by the Additional Custodian behind the back of the parties resulting in the Rehabili tation Authority being kept in the dark and not being able to make out a proper case. They may not have been able to make out a proper case but I do not agree that they have been, in any manner, prejudiced. The issues were framed by the trial Court and not by the Appellate Court. The Addi tional Custodian, merely reproduced those issues in his judgment as the points for determination in the case. The only new point noted by him in his judgment was the point of limitation raised for the first time in appeal. Paragraph 17 of the petition is devoid of any force. It says that no opportunity was given to the Rehabilitation Authority to file any written statement or lead any evidence in the Courts below. There is nothing to show that the Rehabilitation Authority were prevented from filing a written statement or that they wished to produce any evidence in the trial Court which was refused. If that had happened it was the duty of the Rehabilita tion Authority to appeal from the Order of the Deputy Custodian which they failed to do. In any case the enquiry contemplated by Section 18, Ordinance XV of 1949, was a summary enquiry and it was not necessary for the Deputy Custodian to demand a written statement or any evidence from the Rehabili tation Authority. Paragraph 18 says that inadmissible evidence has been relied upon and the record of the case has been misread, misconstrued and misappreciated. Paragraph 19 says that the decision of the Additional Custodian is legally and factually wrong. I do not agree with 'these assertions. Paragraph 20 says that according to Section 24, Act XII of 1957, no order made by the Custo dian on an application for a declaration shall effect any allotment order to which the property is subject and the Additional Custodian is accused of having ignored this law. The Additional Custodian has nowhere said in his Order that any allotments made by the Rehabilitation Authority will be cancelled or treated as null and void. I am, therefore, unable to agree that he has in any way violated the provision of Section 24, Act XII of 1957. The last ground of the Revision petition is that the judgments and orders of the Courts below are against law and facts and it is prayed that both of them may be set aside. This is a very peculiar prayer in a petition for Revision dated 9‑9‑1957, against the order of the Additional Custodian only, dated 13‑8‑1957. The petition for Revision is time‑barred in respect of the order of the Deputy Custodian dated 5‑7‑1956. The Rehabilitation Authority may, however, thank the Additional Custodian who has without any appeal or Revision having been filed by them set aside the order of the Deputy Custodian. So far as the order or the Additional Custodian is concerned I have considered all the grounds on which the petition for revision has been filed and finding no force in anyone of them I dismiss the petition. It will be open to the Rehabilitation Authority to negotiate with tae respondent and after ascertaining the value of her 1/10th share to give it to her in the form of some specified property or cash or both. K. B. A. Petition dismissed.