P L D 1983 Supreme Court 163 (PLP)

Advocate-on-Record for Appellants. Nemo for Respondent No.

1. Kh. Muhammad Farooq, Advocate Supreme Court .and Rana M. A. Qadri, Advocate-on-Record for Respondent No.

2. Date of hearing : 15th February, 1982. JUDGMENT ?? SHAFIUR? RAHMAN, J.-Leave to appeal was granted to examine whether a deed of association entered into on 28-12-1962 between a claimant and a non-claimant when there was no such provision for association of a claimant with a non-claimant vitiated the association itself and P. T. D. that issued as a consequence thereof.

2. Mst. Rahim Bibi, the mother of Hakim Feroze Din and Mohammad Hafeez, the two contestants, was transferred as a claimant House No. 15, Street No. 3 (Property No. S. E.? XVI-3-S-15), Lahore. One Mst. Rasoolan Bibi who claimed to be non-claimant occupant of the same 4 house challenged the transfer and by an order dated 31-3-1961 the Deputy Settlement Commissioner directed the transfer of the property to both after dividing it. The Additional Settlement Commissioner rejected her appeal but the Settlement Commissioner on 5-2-1962 allowed her the whole house ousting thereby Mst. Rasoolan Bibi. On record there is a deed of association dated 28-12-1962 whereby Mst. Rahim Bibi associated with her son Mohammad Hafeez Khan, respondent No. 2, for the purpose of payment of price. The bulk of the amount to be raised for paying the price was to come from the compensation book of Rahim Bibi and that of her husband Gulab Din and a small amount of Rs. 1,200 out of Rs. 12,000 was to be contributed by respondent No.

2. The Deputy Settlement Commissioner recorded an order on the deed in the following words : "Allowed, if it is in order." It was on 21-8-1965 that the Deputy Settlement Commissioner ordered the consequential effect in the revised P. T. O. The predecessor-in-interest of the appellant, the brother of respondent No. 2, moved an application in the Settlement Organization for re-examining the deed of association and the transfer in favour of respondent No. 2 to their exclusion. Fraud, forgeries and misrepresentations were alleged by him, apart from the illegality that the deed of association was not in accordance with the law then in force. A civil suit was also filed by him on the same grounds but was later not pursued. On 17-4-1967, respondent No. 2, was able to obtain P. T. D. On 21-10-1968 the Settlement Commissioner after taking note of the alleged fraud and forgeries set aside all orders subsequent to 31-3-1961 by which the house was transferred to Mst. Rahim Bibi and remitted the case to Deputy Settlement Commissioner for disposal keeping in view the observations made by him. This order was challenged by respondent No. 2 by a constitutional petition. The learned Judge allowed it holding that after the issuance of the P. T. D. the Settlement. Commissioner had become functus ofclo as held by this Court in Anwar Hussain v. Sarfraz Ahmad (P L D 1971 S C 669) and on the ground that the Settlement Commissioner could not have set aside the orders subsequent to 31-3-1961 particularly the order of the Settlement Commissioner dated 5-2-1962 by which the whole of the house was transferred to Mst. Rahim Bibi ousting Mst. Rasoolan Bibi. Leave to appeal was sought by the appellant on two grounds-firstly to examine and determine whether the deed of association dated 28-12-1962 was a forgery intended to deprive the other heirs of Mst. Rahim Bibi of their shares in the property, and secondly, whether such an association being violative of the instructions then in force, the P. T. D. etc. were all invalid and of no legal effect. The first question on which leave was sought was considered to b primarily a question of fact and not a fit subject for adjudication in B this Court and, therefore, leave was granted only to examine the second question. It is conceded that on 28-12-1962 the law did not permit the association of a claimant with a non-claimant. It is also conceded that respondent No. 2 was a non-claimant. However, protection for the deed of association is sought on numerous other, grounds. Firstly it is contended that after the P. 'T. D. had issued in favour of respondent No. 2, the Settlement Commissioner had become functus officio and he could not exercise suo motu revisional powers for interfering with the transfer deed itself. Further it is contended that it was, in fact, not a case of exercise of suo motu revisional powers because the powers had been exercised on the direction and behest of the Chief Accounts Officer and on an application of a party interested in the proceedings. In any case, protection for the deed of association is sought on the strength of the decision of the Lahore High Court given in Muhammad Boota and another v. Mst. Eidoo and 3 others (P L D 1975 Lah. 1163) which is said to be a case identical on facts and law. Finally it has been urged that, in any case, the Settlement Commissioner could not have gone back to the order dated 31-3-1961 because that was an order passed by the Deputy Settlement Commissioner and had been substituted in the Settlement Hierarchy by an order of the Settlement Commissioner dated 5-2-1962. One point on which both the contestants are agreed is that the order of the Settlement Commissioner challenged by constitutional petition could not have set aside all the orders passed after 31-3-1961 because it included the order of the Settlement Commissioner dated 5-2-1962 by which the predecessor-in-interest of the parties became the sole transferee of the house ousting thereby the other claimant to it namely Mst. Rasoolan Bibi. The respondent attributes the mention of 31-3-1961 to a clerical mistake. The appellant, on the other hand, contends that this was basic error with regard to the jurisdiction of the Settlement Commissioner. He could not interfere with and render of no legal effect the order competently passed by an officer of equal and co-ordinate jurisdiction. This is correct that the order of the Settlement Commissioner, as it stands, suffers from an inherent and a patent jurisdictional error inasmuch as it clearly mentions the setting aside of all orders passed in the settlement hierarchy concerning this property after 31st March, 1961 and one of the orders so hit happens to be that of 5-2-1962 passed by a Settlement Commissioner. The revisional powers of a Settlement Commissioner never extended to interference with the orders passed by another Settlement Commissioner. Another defect in the order of the Settlement Commissioner was that be interfered with the P. T. D. not on the ground that it had been obtained in violation of law by committing forgeries in the record but on a complaint to that effect and with a view to get that complaint examined. The jurisdiction of the settlement authorities to interfere with the P. T. D. is not attracted where a complaint is made, but it could be interfered with, if at all, only on proof of alleged forgeries or nullities and not merely for re-examining the case afresh. The scope of this jurisdiction has bee exhaustively dealt with in a decision of this Court, that is, Anwar Hussain Sani v. Sarfraz Ahmad. Apart from correcting clerical errors the only power preserved under rule 6 or 7 of P. T. D. Rules was one where on holding a proper inquiry and giving the transferee an opportunity of hearing it was found that he had been guilty of misrepresentation and fraud. This was, therefore, a pre-condition to be satisfied before interfering with a P. T. D. No such inquiry having been held and no finding having been recorded, all the orders subsequent to 31st March, 1961 could not be so summarily set aside after the P: T. D. had issued in respect of the property. As regards the initial defect in associating the respondent, a non-claimant on 28-12-1962 when the association was restricted to claimants alone, on has to take note of the fact that the instructions related to the procedure for payment of price and was aimed at protecting 'the interests of the transferees. The restriction- was removed and the facility of association with non-claimants was made available to the transferees on the 11th January, 1964 and on 5th February, 1964 they were permitted even to surrender all their rights in favour of associate non-claimants or local. The benefit of such a remedial dispensation could be made available in all pending proceedings once it was found that the deed of association had no inherent taint as such, of forgery, misrepresentation or want of consideration. The transferee stands to benefit in the case under section. 43 of the Transfer of Property' Act as well. Section 6 of the Transfer of Property Act, providing that "property of any kind may be transferred, except as otherwise expressly provided by this Act, or by any other law for the time being in force" prescribes a rule of substantive law. Section 43 of the Transfer of Property Act on the other hand prescribes a rule of estoppel, a procedure recognizing and giving effect to an equitable doctrine. It comes into play where a person "erroneously represents that he is authorized to transfer certain immovable property, professes to transfer such property for consideration" and on these conditions being satisfied "such transfer shall, at the option of the transferror, operate on any interest which the transferror may acquire in such property at any time during which the contract of transfer subsists." The associating claimant transferee was in this case not authorized to transfer in favour of a non-claimant, but erroneously represented to be so authorized. The associate not only provided the consideration but also acted on the representation which when made was erroneous. During the subsistence of the contract the disability or the restrictions inhibiting the agreements of associations was removed and the associate thereby got a right to enforce his claim under, section 43 not only against the transferror but against her heirs and successors-in-interest as well. On this ground as well the deed of association was not liable to interference. We, therefore, find that for, a number of reasons detailed above the order of the Settlement Commissioner was without jurisdiction. The High Court rightly declared it to be so. This appeal has no merit and is dismissed, leaving the parties to bear their own costs. S. Q.??????????????????????????????????????????????????????????????????????????? Appeal dismissed.