P L D 1965 (W (PLP)

"The property after her (widow's) death shall devolve upon her three daughters and the status of the property shall be determined on the lines suggested above." The officer had chosen to give a declaration as to the status of the petitioner and the property of the deceased in respect of a situation that was contemplated to arise after the death of the widow. This decision was neither necessary; nor could it be said to be unalterably correct, because the widow could migrate, and so could the petitioner, and thus become evacuee persons before the death of the widow. Additionally, it is to be noted that the declaration with respect to the non‑evacuee character of the petitioner was made on considerations of the devolution of the inherited property only. The house with respect to which the present dispute relates has not been inherited by the applicant from her father. It was shown as evacuee property in the Custodian's records from 1950 or 1951. The declaration was made in favour of the petitioner in 1952, but the petitioner took no action to secure the control of the house up to 1957. Her application for ejectment, which was made in that year, was directed against Muhammad Yasin and Imamuddin, but its decision was delayed for long. In the meantime the house was provisionally transferred to Mst. Aliman, who is respondent No. 2 in these proceedings. Respondent No. 2 applied to the Rent Controller to be impleaded as a party, and took the objection that the house was an evacuee property. While the contest between the petitioner and the occupants of the house was going on, the petitioner applied, in January 1958, to the Deputy Custodian, Hyderabad, for correction of the entries that were existing in the Custodian's record with respect to this house. That application was founded on the declaration that had been made in her favour by the Assistant Custodian on the 4th of November 1952. The Deputy Custodian observed that "her 1/3 share in the inherited property had been declared as non evacuee. Such being the case, this office record should have been corrected on the basis of the said order, but through some oversight the correction was not made" and ordered on the 23rd of January 1958, that the entry be expunged. He did not realise at that time that the declaration had been made with respect to the petitioner's inherited property, while the house which was entered in the Custodian's record as an evacuee property did not belong to that category.

3. Counsel for the petitioner has contended that the petitioner was declared to be a non‑evacuee person in 1952 by the Assistant Custodian; therefore, all her property whether inherited or not, had automatically been declared to be non‑evacuee property. This contention would have had force in it if, apart from other considerations against it, the house had not been mortgaged by the petitioner in 1947 with Oodharam Dayaram who was an evacuee. The necessary result of that mortgage was that the house was an evacuee property in terms of section 2 (3) of Act XII of 1957. The order of the Assistant Custodian and that of the Deputy Custodian by which he expunged the entry in the‑ Custodian's records were, therefore, clearly incorrect on true facts.

4. Counsel for the petitioner tried to meet this objection by arguing that the orders of the Assistant and Deputy Custodians were not set aside; therefore, they were effective, whether right or wrong. Moreover, the house was mortgaged for Rs. 3,000.00, which amount has been deposited by the petitioner in pursuance of the order of the Additional Settlement and Rehabilitation Commissioner of the 9th of July 1961. The result, therefore, according to counsel, is that by virtue of the redemption of the mortgage and the orders of the Assistant and Deputy Custodians, the property should be taken to be free from all encumbrances and as legally recognised to be a non‑evacuee property.

5. Counsel for the respondents has pointed out in reply that the house was treated as evacuee property not only by virtue of the entries relating to it which existed in the records of the Custodian from 1950 or 1951, but also by virtue of the fact that the occupants of the house were throughout paying rent to the Custodian and the petitioner had lost all control over it. In these circumstances, the remedy open to the petitioner was not to apply to the Deputy Custodian for the correction of the record but to make an application under section 22 of Act XII of 1957 for a declaration that the house was a non‑evacuee property. If such an application was made, proper procedure would have been followed, notices would have been given to the Rehabilitation Department and also to all those who claimed interest in the house by virtue of its possession and allotment, and their objections would have been considered from the judicial point of view. The petitioner did not follow the right course and by making an application on the administrative side, obtained an ex parte order by creating the impression on the mind of the Deputy Custodian that the house was included in the inherited property and by concealing the fact that it was mortgaged. Counsel for the respondents have suggested that she deliberately did not make an application under section 22 of the Act because she k‑new that the mortgagee interest would have come to light and the correction would not have been made. Similarly, according to counsel, the order of the Assistant Custodian of the 4th of November 1952, is legally invalid because the Settlement Authorities are neither empowered to order redemption of a mortgage, nor to declare a property to be non‑evacuee.

6. The above contentions and considerations offered a formidable resistance which counsel for the petitioner attempted to remove by calling to aid the following propositions of law: (a) The petitioner was declared to be a non‑evacuee person by a competent authority, viz. Assistant Custodian, Hyderabad as early as in November 1952, which order has not been set aside; (b) If a person is rightly or wrongly so declared, then all properties of that person become non‑evacuee automatically and could not be a part of the common pool, and be available for transfer; (c) The stand of the respondents that the house was treated as evacuee property by the Custodian's Department is not correct because there is no adequate proof of such treatment excepting that the house was shown as evacuee property in the records of the Custodian but that record too was ordered to be corrected in 1958 by a Deputy Custodian. The above argument does not take into consideration the fact that the petitioner has been, according to herself, out of control over the house from 1948 and did not try to collect its rent. As against this, the Custodian's Department claims to have recovered rent from the occupants of the house. Mr. Naimuddin, for respondent No. 1, referred to a receipt of rent of 1956 to which Mr. Akhtar Mahmood objected as it was a "mere copy"; but leaving that receipt out of consideration, one is still compelled to conclude that, in the absence of any control of the petitioner or anybody else besides the Custodian over the property, the contention of the Custodian's Department that it had the control of the house, which ultimately matured in the provisional transfer of it to respondent No. 2, must be correct. It is true that, on the declaration of a person as a non‑evacuee, his or her property would, in the ordinary circumstances, automatically become non‑evacuee property; but in this case the order by which the petitioner was declared to be a non‑evacuee person purported the decide her status in a proceeding in which it was not relevant and could not be unalterably correct with regard to an indefinite future. Moreover, the order was made in ignorance of the now admitted fact that the house had been mortgaged by the petitioner in 1947 to An evacuee person. The ignorance of the Assistant Custodian can be reasonably attributed to the active concealment by the petitioner of the mortgage from that officer. Further, as the order was not made with the knowledge that the petitioner had property other than the inherited property, it could not have been intended to apply to the mortgaged house even if the language of the order was wide enough to cover it, unless too much emphasis is laid on the words and the concealment of the mortgage is ignored. Moreover, as pointed out by counsel for the respondents, it was not necessary that the order of 1952 should have been set aside in a formal manner for treating the house as an evacuee property, because a person who is once declared to be non‑evacuee with the consequence that his property is also to be taken as non‑evacuee, could become an evacuee subsequently. In such circumstances, the property of that person could be treated by the Custodian's Department as evacuee property, and any order obtained by the person B so treated in his favour at an earlier date would not be final. In this case, the order of the Assistant Settlement and Rehabilitation Commissioner dated the 9th of July 1961 itself contains the information, which up to that time was not in the knowledge of the Department, that the petitioner had mortgaged the house and treats the mortgagee interest as evacuee property. This information does, on a reasonable view of the situation, constitute an adequate change in the circumstances as compared to the circumstances on the basis of which the Assistant Custodian had declared the petitioner to be a non‑evacuee on the 4th of November 1952. The Additional Settlement and Rehabilitation Commissioner recognised the mortgage but allowed the petitioner to deposit Rs. 3,000.00 tow1rirds the redemption of her, mortgage; unless that order was made in exercise of jurisdiction vesting in him, the evacuee character of the property did not cease to exist by virtue of it.

7. The decisive consideration in this case, therefore is, whether the Additional Settlement and Rehabilitation Commissioner had the jurisdiction to order the redemption of the mortgage and thereby to declare the house to be a non‑evacuee property. Mr. Akhtar Mahmood could not reasonably attribute that jurisdiction to the Additional Settlement and Rehabilitation Commissioner and he did not. His contention was that the petitioner being a Hindu lady was severally handicapped in pressing her rights from 1950 to 1957; therefore, she suffered the loss of her control over the house although legally she could press into use the declaration that had been made in her favour by the Assistant Custodian on the 4th of November 1952. When that order was made, her house was already mortgaged; therefore, the effect of the mortgage was nullified by the general terms of that order in spite of the fact that the mortgage was not considered in it. She was ordered by the Additional Settlement and Rehabilitation Commissioner on the 9th of July 1961, to pay the mortgage money although legally that mortgage was not in her way yet by way of abundant caution and in defence to that order she has deposited the money. That payment, according to counsel, did not indicate any change in the circumstances of the petitioner or the character of the house so as to be taken to justify a different treatment of the house at any time by the Custodian's Department. At the time, of the order according to counsel, the order of the Assistant Custodian of the 4th of November 1952 and the order of the Deputy Custodian correcting tile record of the 23rd January 1958 as well as the view of the Additional Settlement and Rehabilitation Commissioner himself that her house was non‑evacuee property, were in her favour. Her submission to the desire of the Additional Settlement and Rehabilitation Commissioner to deposit the money, therefore, cannot give a new meaning to the entries that once existed in the record of the Custodian and to the non‑receipt of rent by her.

8. The above arguments of Mr. Akhtar Mahmood are perhaps the best that could be addressed in the circumstances in which he was placed, but they do not obliterate the effect of the mortgage merely owing to the ignorance of the Assistant Custodian of that mortgage when he declared the petitioner to be a non‑evacuee person in 1952; and the ignorance of the Deputy Custodian when he ordered the correction of the record; the provisional transfer of the house to respondent No. 2 and the absence of jurisdiction of the Additional Settlement and Rehabilitation Commissioner to allow the redemption of the mortagage, and to cancel the provisional transfer order which was made in favour of respondent No. 2 by unauthorisedly treating the house in spite of the mortgage to be a non‑evacuee property. My sympathy with the lady in view of her handicap which has been pressed by her counsel does not enable me to view the existence of the mortgage, its concealment by her and its illegal redemption as circumstances favourable to her case. In this connection, I may mention that Mr. Naimuddin's contention was that the principal amount of mortgage was Rs. 3,000.00 which was free from interest for one year only, and the question of the accrual of interest after that year was not considered by the Additional Settlement and Rehabilitation Commissioner. Unless a competent authority came to the conclusion that no interest was due, the proper legal view would be that interest on the principal amount from 1948 or 1949 is still due from her and would have been a charge on the house if it was not acquired by the Government free from all encumbrances.

9. The above arguments, which were ably advanced by counsel for the parties, leave the following valid objections to the petition unanswered: (a) The order of the Assistant Custodian dated the 4th of November 1952, declaring the petitioner to be a non‑evacuee person was without jurisdiction because her status was not relevant to the inquiry; nor was it open to him to declare her to be a non‑evacuee person with reference to a future date after the death of her mother. According to the Privy Council Janoki Ammal v. Narayansami (1916) 43 I A 209 the daughters did not even have a vested interest in the succession so long as the widow was alive. (b) The correction of the record by the Deputy Custodian was the result of the concealment or the mortgagee interest and of the impression created on his mind that the house was a part of the inherited property. (c) The knowledge that the house was mortgaged was a sub stantial change in the circumstances, the effect of which cannot betaken to have been obliterated by the perfunctory declaration given by the Assistant Custodian in ignorance of it. Moreover, irrespective of the entry of the house as an evacuee property in the records of the Custodian and of the order of the Deputy Custodian to expunge that entry, the house was continuously treated as evacuee property by the Custodian's Department from 1950‑51 onwards by virtue of the collection of its rent and the exercise of control over it which culminated in the grant of a provisional transfer order in favour of respondent No. 2.

10. Mr. Akhtar Mahmood lastly complained that the Settlement and Rehabilitation Commissioner, Karachi has made the impugned order by following an objectionable procedure which is indicative of a determination to decide against the petitioner. The procedure that was adopted by him was that, before making the impugned order in revision, he obtained the legal opinion of the Department's Advocate and has virtually adopted it in his order. That prejudice, if any, has however not stood in the way of the petitioner during these proceedings and the above conclusions have been arrived at after hearing elaborate arguments, on almost all aspects of the matter, of counsel for the parties.

11. The overall conclusion is that the house to which this dispute relates was continuously treated as evacuee property by the Custodian's Department and no declaration under section 22 of Act XII of 1957 has been obtained by the petitioner with reference to it. The order obtained by her mother did not relate to it. Additionally, the mortgage which existed and was not validly redeemed, leaves no doubt regarding its evacuee character. The petition is, therefore, dismissed with no order as to costs. K.B.A. Petition dismissed.