P L D 1964 Supreme Court 572 (PLP)

The Province of West Pakistan and the Deputy Rehabilitation Commissioner, Sheikhupura, appealed against the order of the Deputy Custodian, and the Custodian of Evacuee Property by order dated the 27th July 1957, held that the declaration granted by the Deputy Custodian (General) by order dated the 29th November 1955, was illegal and improper and so was the order of the Deputy Custodian (General) dated the 5th March 1955, whereby the sales were converted into usufructuary mortgages. He, therefore, set aside those orders. The appellants then moved the High Court of West Pakistan in writ jurisdiction to have the orders of the Custodian quashed, but the High Court declined, to interfere, by order dated the 24th of April 1961. The High Court noted that the Custodian had repelled the plea which had found favour with his subordinates that the ailerons had knowledge of the fact that the ailerons were members of a notified agricultural tribe and had been wrongly described as non‑agriculturists in the revenue papers. This finding, the learned Judges of the High Court observed, being one of fact, could not be interfered with in writ jurisdiction as it was based on material existing on the record. The Custodian's view that the vendors were estopped from raising the plea that they were members of a notified agricultural tribe in view of their own representation to the vendees, on the faith of which the latter entered into the sale transactions and paid full considera tion on that basis, was upheld by a Division Bench of the High Court hearing a Letters Patent appeal from the orders of a learned Single Judge who had opined that there could be no estoppel against the provisions of a statute. It was remarked that the issue was one of fact and it could not be allowed to be raised on behalf of the appellants who were petitioners in the High Court, as the second party to the sale‑deeds had acted on their representa tion, to their prejudice. The order of the Deputy Commissioner dated the 9th of May 1913, by which the family's caste was changed from Rajput Minhas to Sheikh, was assailed before the High Court as one without jurisdiction on the plea that no provision existed at that time in the Act, enabling such an order to be passed. Reliance was placed in this connection on behalf of the appellants on the fact that subsections (2) and (3) of section 4 of the Act, were not inserted therein till the year 1938. The High Court repelled this argument by observing that the order could not be described as one without jurisdiction, considering that the preparation of a correct record‑of‑rights was the statutory obligation of the Deputy Commissioner. It was further found that the Custodian was not bound by the order passed by the Deputy Commissioner, Gujranwala, on the 12th February 1951, although the Rehabilita tion authorities, who were agents of the Custodian, were parties to the proceedings before him. After examining the provisions of the Pakistan Administration of Evacuee Property Ordinance (XV of 1949), the learned Judges came to the conclusion that the Custodian's jurisdiction to declare what interest, if any, an evacuee had in any property, was exclusive and could not be detracted from, by an order passed by the Deputy Commissioner under the Act. The petition for a writ was consequently dismissed. The first question that calls for determination is whether the appellants were estopped from pleading that they were notified agriculturists of this district. As has been observed above, the High Court has found that there was no collusion between the vendors and vendees in this case to defeat the provisions of the Alienation of Land Act, 1900. If a false representation was made at the times of the sales, by the vendors, the vendees were not privy to it. This finding is justified by the state of the evidence on record and nothing has been urged on behalf of the appellants, which could persuade us to take a different view. It is not, therefore, a case of the parties being in part delicto in the matter of defeating a statute or committing a fraud oil its provisions. The false representation, if any, was made by the vendors themselves without the vendees' collusion and on the faith of that representa tion the vendors agreed to pay the full price as for a sale. They, therefore, acted to their prejudice as a result of the representation made by the vendors. The rule of estoppel embodied in section 115 of the Evidence Act would apparently be attracted to the case. This is in the following terms:‑ "

115. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither lie nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representa tive, to deny the truth of that thing." From the recital of facts contained in the copy of the order of the Commissioner dated the 16th of February 1944, it appears that till the preparation of the jamabandi of 1905‑06, there was no entry about the caste or tribe of the vendors' family in the revenue papers. For the first time in that year, the members of the family were entered as "Rajputs". It was only on 3‑5‑13, that a field Kannungo reported that their caste had been verified as "Rajput Minhas". The proceedings that were started before the Deputy Commissioner, Gujranwala, for change of caste to Sheikh, are also referred to by the Commissioner in his order. It seems to have been represented on behalf of the vendors' family that the wrong entry about their being "Rajput Minhas", had been made in the revenue papers, through the mistake of their servants. Nawab Aslam Hayat Khan who was then A. D. M. Gujranwala and was married to Mst. Feroze Begum, the daughter of Nizam Din, one of the members of this family, was also insulted by the Deputy Commissioner in respect of the prayer for change of caste. It may be noted that at that time the area subsequently included in the district of Sheikhupura was part of Gujranwala district. The A. D. M. endorsed the application of the petitioners with the remark that their claim was correct. Then there was an inquiry through the Tehsildar who recom mended the change asked for Before the Tehsildar, apparently, several registered deeds had been produced by the petitioners in which their caste was entered as "Sheikh". A further reference to Nawab Aslam Hayat Khan elicited the reply that the caste of the family was in fact Sheikh. After this full inquiry, the Collector agreed to the change of caste. This was the position when the mortgages were first entered and it was not altered till the sales took place in 1938 to 1940. In these circumstances, it is clear that the petitioners in trying to undo the transactions of sale and to get back their property, were in fact attempting to take advantage of their own fraud. This conduct on their part would contravene the well‑known principle embodied in the Legal Maxim "Nullus commodum capere potest de injuria sua propria (Co. Litt. 148 (b)) (No man shall take advantage of his own wrong). It is, however, contended by Mr. Brohi on behalf of the appellants that even though the conduct of his clients may be described as fraudulent, they were not debarred from raising the plea that the transactions in dispute contravened the provisions of the Act, and to that extent, the rule of estoppel could not be invoked against them, as it would defeat the policy of the Act. Estoppel, it is urged, could not be allowed to prevail against the provisions of a statute. Section 3 of the Act provides that no permanent alienation of land by a member of a notified agricultural tribe, to a person outside the same tribe or group of tribes to which the alienor belongs, shall take effect, as such, unless and until sanction is given thereto by a Deputy Commissioner. Such sanction may be given after the act of alienation is otherwise completed. There are certain exceptions to this provision which are not material for our purpose. The Deputy Commissioner is empowered under this section to grant or refuse sanction in his discretion. Section 4 of the Act enables the Provincial Government by notification in the official Gazette to determine what bodies of persons in any district or group of districts are to be deemed to be agricultural tribes or group of agricultural tribes for the purposes of the Act. Subsections (2) and (3) of this section were added by section 4 of the Punjab Alienation of Land (Second Amendment) Act, 1938. By these two subsections, it was enacted that if any question or doubt should arise as to whether a person is or is not a member of a notified agricultural tribe, the Deputy Commissioner shall, after such inquiry as may be prescribed, determine whether that person is to be deemed to be a member of the said agricultural tribe for the purpose of the Act. In passing such an order it is declared that the Deputy Commissioner shall not be bound by any decree of a civil Court and may review any order previously passed under these provisions. A proviso saves the effect of a decree passed in a suit instituted before the 15th of June 1938. Section 14 of the Act, inter alia, provides that a permanent alienation which is not to take effect as such, until the sanction of a Deputy Commissioner is given thereto, shall, until such sanction is given or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by section 6 of the Act for such term not exceeding twenty years and on such conditions as the Deputy Commissioner considers to be reasonable. On the basis of these provisions, the argument is advanced that the Legislature had in its wisdom evinced a clear intention to protect members of agricultural tribes from the results of their own improvident actions in alienating properties. Such a policy of the law, therefore, it is suggested, must have precedence over any rule of estoppel. The learned Custodian had relied on two decisions to repel this contention, reported as S. Nand Singh v. Rahmat Din (minor) and others (A I R 1946 Lah. 73) and Dhana Phathak v. Sona Koery (I L R 15 Pat. 589). The High Court held that they could not interfere with the finding of the Custodian in writ jurisdiction as it was a. finding recorded with jurisdiction and further the conclusion reached by him had the merit of being just.' In this respect it could not be said that there was error patent on the face of the record, committed by the Custodian. In Nand Singh v. Rahmat Din, the facts were that one Sher Muhammad describing himself as belonging to the Behl Bhatti tribe, mortgaged his land and two houses along with other property, to ; two non‑Muslims for a sum of Rs. 2,

666. After the death of Sher Muhammad, the mortgagees Nand Singh and Mohan Lal, a son of Ganesh Das, the other mortgagee, brought a suit for the recovery of Rs. 5,000, by sale of the mort gaged land and houses, against the minor sons of the mortgagor. The suit was resisted; inter alia, on the plea that the mortgagor was a Bhatti Rajput and therefore a member of an agricultural tribe in the Rawalpindi district, that the mortgage being in con travention of the Act, could not be enforced and that no decree for the sale of the land covered by it, could be passed. On behalf of the mortgagee‑plaintiffs the position was taken that the mortgagor was not a Bhatti Rajput but a Bhatti Behl which was not one of the notified agricultural tribes of the district. After some evidence had been led by the parties on the several issues framed, the guardian ad litem of the minor defendants com promised with the plaintiffs, after obtaining necessary sanction from the Court. According to the terms of this compromise, part of the mortgaged property was released from ‑its burden and a decree for the sum claimed, by sale of the remaining mort gaged property, was passed in the plaintiff's favour. When execution was sought of this decree, Fazal Din, the guardian ad litem of Rehmat Din judgment‑debtor, inter alia, raised the objection again, that the judgment‑debtor being a member of an agricultural tribe, the sale of his land was prohibited by section 14 of the Act. It was held that in view of the compromise decree, the plea as to the ‑ judgment‑debtor being a member of an agri cultural tribe, was barred by the rule of res judicata and that in any case, the judgment‑debtor was estopped from raising that plea. The learned Single Judge who decided the case, observed that it was quite true that there could be no estoppel against a statute but he was of the opinion that this well‑recognized rule did not imply that there could be no estoppel even against a plea of fact which had to be established before the statute could be invoked. The principle that there can be no estoppel against a statute was considered to apply in those cases where the alienor was admitted to be a member of an agricultural tribe or the facts were clear on that point. In Dhanu Pathak v. Sona Koeri, a Special Bench of the Patna High Court consisting of the Chief Justice and two other Judges, held that the plaintiffs having represented themselves as tenure holders, when granting a lease to the defendant, were estopped from pleading that they were ralyats. The misrepresentation about their status not being to the knowledge of the defendant, it was found that there was no question of estoppel against the statute, namely, section 46 of the Chota Nagpur Tenancy Act, 1908, which provided that a raiyat could not, by a demise, grant any permanent rights in land. As the defendant had denied that the plaintiffs were raiyats, an issue of fact was raised which could not be permitted to be raised in view of the plaintiffs' representa tion to the contrary on which the defendant had acted. The entry in the record‑of‑rights describing them as raiyats was not accepted as conclusive. It was remarked that no question of the operation of the relevant statute could arise till this issue of fact was first decided. The learned Judges added that there would have been no estoppel if there had been any collusion between the plaintiffs and the defendant and if it had been established that the former had deliberately misrepresented them selves to be tenure‑holders to the knowledge of the latter to defeat the provisions of the Chota Nagpur Tenancy Act. These two rulings clearly support the view that found favour with the learned Custodian. Mr. Brohi on behalf of the appellants invited our attention to the case of Mohori Bibee v. Dhurmodas Ghose (33 I A 114). In that case the Privy Council was dealing with the case of a minor who had executed a mortgage representing himself to be a major, though it seems that an interested party had conveyed the information to the mortgagee that the mortgagor was still an infant. Their Lordships of the Privy Council held that section 115 of the Indian Evidence Act did not apply to a case where the statement relied upon was made to a person whoa knew the real facts and was not misled by, the untrue statement. There could be no estoppel where the truth of the matter was known to both parties. The case cited is, therefore, distinguishable on the facts from the instant case in which a finding has been duly given that the vendees were not in pari delicto with the vendors. The next case cited by Mr. Brohi is Gadigeppa Bhimappa Meti v. Balangowda Bhimangoda (A I R 1931 Born. 561). In this case the learned Judges went further than the Privy Council, in laying down that where an infant represents fraudulently or otherwise that he is of age and thereby induces another to enter into a contract with him, then in an action founded on the contract, the infant is not estopped from setting up infancy. It was observed that‑no person can, by the application of the law of estoppel or by any rule of procedure, acquire or have assigned to him a status or legal capacity which the substantive law denies to him, and it makes no difference whether the misrepresentation on which the estoppel is sought to be founded, is made fraudulently or innocently. The learned Judges in the course of the discussion referred to the Privy Council judgment in Sadiq Ali Khan v. Jai Kishori (A I R 1928 P C 152) in which, although it was found that the fact of minority of some of the mortgagors was concealed by their father who was their guardian, from the mortgagee, it was ruled that the fact of minority being established at the date of the execution by the mortgagors of the deed founded on, was sufficient for the decision of the case, such a deed executed by minors being admittedly a nullity according to Indian law and incapable of founding a plea of estoppel. The principle was, therefore, affirmed that an estoppel could not overrule a plain provision of the law. Learned counsel for the appellants also relied on certain observations made by a learned Single Judge of the Calcutta High Court in Nawab of Murshidabad v. Bilas Roy Choudhury (A I R 1929 Cal. 433). In that case, the construction of the Murshidabad Act XV of 1891 which placed the Nawab Bahadur of Murshidabad under a disability in the matter of alienation of his property, fell for consideration. The transaction in question there, contravened this provision and it was decided that the principle of estoppel could not be invoked to defeat the clear provisions of the statute that were based on public policy. There obviously the disability to which the Nawab Bahadur was subject, was explicitly and indisputably borne out by a legislative enactment and the true position could and should have been known to the alienee. The case, therefore, does not lend much assistance to the contention raised on behalf of the appellants. Another Privy Council decision pressed in aid by Mr. Brohi was Maritime Electric Co. Ltd. v. General Dairies Ltd. (A I R 1937 P C 114). That was a case in which the plaintiff company under‑billed the defendant for the electric current supplied, by a mistake. Later, on the mistake being discovered, they made a further demand and succeeded in obtaining a decree. The question was whether they were estopped from demanding the excess amount by their conduct. In this context, the Privy Council observed that the electric company was under a statutory duty to charge the full amount for the electricity consumed and the consumer was under an equal obligation to pay that amount, under a statute. The plea of estoppel was not allowed to defeat the statutory obligation which was of an unconditional character. Here again, no issue of fact called for decision before the provisions of the Act could be applied to the case and the decision therefore is not very much to the point. Our law, it seems, displays a special tenderness for the interests of minors and relieves them from the effects of the own illegal acts even though the transaction may have been induced by their own fraudulent misrepresentation on the point of age. This does not, however, appear to be a universal rule and in some jurisdictions the rule is established that fraud will vitiate the plea of infancy, in certain types of cases. See for instance, Law of Estoppel by Henry Herman, Vol. II, p. 1255 et seq wherein an infant's liability for a tort is affirmed. Reference may also be made to Estoppel by Arthur Caspersz, Book I, p. 56 et seq. Wherein Bigelow on Estoppel is quoted to the effect that "it appears to be the better doctrine that both infants (of years of discretion) and married women may be estopped." Snell's Principles of Equity, edited by R. E. Megarry (1947 Edition for India) p. 463 also cites cases in which, in equity, estoppel was successfully pleaded against infants in certain cases. The cases relating to minors must be regarded as falling in a special category and the rule laid down in them should not, without compelling necessity, be extended to other cases. I am disposed to hold that in the case of adults, the plea of estoppel would be available to bar investigation of a question of fact about which a representation had been made so as to induce the other party to change his position to his prejudice and the principle of there being no estoppel against a statute, should only be invoked in such cases, if on the face of it, the contract is shown to be tainted with illegality. The effect of the provisions of Ordinance (XV of 1949) (referred to in the sequal as the Ordinance) on the finding given by the Deputy Commissioner under section 4 of the Act, also calls for consideration. It is contended by Mr. Brohi on behalf of the appellants that such a finding given by the Deputy Com missioner would be binding on the Custodian as there was nothing in the Ordinance, repugnant to the exercise of the exclusive jurisdiction of the Deputy Commissioner in this behalf. Section 12 of the Ordinance enacts that property which has vested in or of which possession has been taken by the Custodian, shall be exempt from all legal process including seizure, distress, ejectment, attachment or sale, by any officer of a Court or any other authority and no injunction or other order of whatever kind, in respect of such property, shall be granted or made "by any Court or any other authority." The words "or any other authority" occurring in this provision were inserted therein by Act (VI of 1951), but this amendment was to be deemed always to have been made and to have had effect accordingly. If, there fore, the Deputy Commissioner's order involved a direction that the property in dispute in this case, which had undoubtedly vested in the Custodian on the vendees becoming evacuees, should be restored to the vendors, it would be within the mischief of this section. The, provisions of the Ordinance are to override all other existing laws, as declared by section 4 thereof. The Ordinance, moreover, was a later central enactment whereas the Act was a provincial measure and in case of repugnancy between the two, the Ordinance must receive precedence. Section 34 of the Ordinance gives exclusive jurisdiction to the Custodian, to adjudicate upon a question arising in any suit, appeal, application or other proceedings, as to whether, inter alia, any property is or is not evacuee property or what right or interest if any, an evacuee has in such property. A finding given on such a question by any Court or any other authority would be without jurisdiction by virtue of subsection (1) of this section. Sub section (2) of this section imposes an obligation on a civil or revenue Court or any other authority before whom such a question arises, to make a reference, for its decision, to the Custodian. The words "or any other authority" in subsections (1) and (2) of this section were inserted only in 1951, by two amending Acts. The amendment of subsection (1) became effective from 21‑4‑51, that is, after the Deputy Commissioner had given his decision under section 4 of the Act, but prior to the Commissioner's order in appeal. The amendment of subsection (2) was of a still later date, in 1951. It is urged that the Deputy Commissioner's order was not hit by subsection (1) of section 34, as a declaration about the caste or tribe of the appellants was not one of the questions referred to within this subsection, and also because the words "other authority" did not exist therein at the time the Deputy Commissioner passed his order. With regard to the second objection it is enough to say that the order was clearly subject to appeal under the Act and could not be said to be a final order, so as to be effective proprio vigore, if it was challenged in appeal. Before the stage of finalization in appeal arrived, the Legislature had intervened and barred all authorities except the Custodian from adjudication of a question falling within the purview of sub section (1) of section 34 of the Ordinance. But it is forcibly argued that subsection (1) of section 34 of the Ordinance did not cover such a question at all. The contention does not appear to be sound. A declaration of a person as belonging to a notified agricultural tribe under section 4 of the Act, is to be understood clearly in the context of property rights in agricultural land to be possessed or retained, by the person concerned. In the present case, specifically, the only object of approaching the Deputy Commissioner for such a decision was to get back the property in suit, under the provisions of section 14 of the Act. It is, therefore, idle to suggest that the declaration of caste or tribe in the present case could be looked at, apart from the question of the nature of the property in suit. In my opinion, subsection (1) of section 34 of the Ordinance would come into play and prevent the Deputy Commissioner, or the Commissioner under the Act, to pronounce on this question, so as to affect the nature of the property in suit. Both sections 12 and 34 of the Ordinance would stand in the way of such an adjudication by the authority finally charged with that function in the Act. It is true that the amendment of section 34 having taken place after the Deputy. Commissioner's decision, he could not have made a reference to the Custodian on this question under sub section (2) thereof. But it is clear nevertheless that such a decision which had not been finalized under the Act, could not be allowed to prevail against the provisions of the Ordinance. The Com missioner's order, therefore, would be infructuous in these circumstances. Another line of approach by Mr. Brohi was that the Custodian should be held bound by the decision of the Deputy Commissioner 4qd the Commissioner in this case, in so far ns he was a party to the proceedings before these officers, through the agency of the Deputy Rehabilitation Commissioner. Under section 20 of the Ordinance, the Custodian is undoubtedly clothed with authority to take such measures as he might consider necessary or expedient, for the purpose of administering, preserving and managing any evacuee property which has vested in him. Subsection (2) of this section declares that without prejudice to the generality of the provisions contained in subsection (1) the Custodian may, inter alia, institute, defend or continue any legal proceeding in any civil or revenue Court, on behalf of the evacuee. This provision, in terms, does not cover the Deputy Commissioner or the Com missioner, functioning under the Act and it is extremely doubtful, how far the Rehabilitation authority, which is the agent of the Custodian only for the purpose of administering and managing the property, or appearing on his behalf in respect of litigation in Courts, can bind the Custodian as party, by appearing in proceed ings under the Act, without express authorisation by the Custodian. The upshot of the discussion, therefore, is that the Custodian is not bound by the finding of the Deputy Commissioner on the question of the caste or tribe of the appellants as this amounts to a decision that the property in suit which was evacuee property, had ceased to occupy that character. The Custodian has also expressed the opinion that by virtue of Notification No. 657‑R of 3rd April 1950, issued under section 4 of the Act, the vendees, who were holding land in this district, had become qualified to have permanent alienation of land in their favour, as they were declared to belong to the same agri cultural tribe or group of tribes as other land holders in this district and therefore the principle of section 43 of the Transfer of Property Act could be invoked on behalf of the vendees to ask that the Court should treat that as done which ought to have been done and to feed the grant by estoppel. To this the reply is given by Mr. Brohi that the notification could not be made retrospective and could only be effective for transactions that might take place after its date. There is force in this contention of Mr. Brohi. But this notification may connote a change in the policy behind the Act and to that extent may even support the view of the Custodian on the question of estoppel, in these changed circumstances. The impugned transaction was not even in its inception, totally barred by statute, even if the alienor was a member of a notified tribe and the alienee was not. It could be validated by sanction of the Collector, accorded even ex post y facto. At the present time, free exchange of properties is per missible between holders of land in the district and it is a matte for consideration whether the appellants should not be held bound by their own deliberate declaration, in the context of the changed policy of the Act. In the face of the authorities discussed above, the Custodia'n' view on the point of estoppel could not be assailed as being erroneous on the face of the record so as to call for correction in certiorari and in view of the special provisions of the Ordinance, G his own jurisdiction to decide the question of nature of the property is exclusive. For the full exercise of this exclusive jurisdiction, he must be conceded also the exclusive right to decide all essential questions like the tribe or caste of the appel lants. I have, therefore, reached the conclusion that the High Court's order calls for no interference. I would dismiss the appeal but in view of the difficult nature of the questions involved, would make no order as to costs in this Court. FAZLE‑AKBAR, J.--‑I have had the advantage of reading the judgment proposed to be delivered by my learned brother Rahman, J. I agree with his reasoning and conclusions and have nothing to add. HAMOODUR‑RAHMAN, J.‑

I agree. A. H. Appeal dismissed.