P L D 1958 (Cust (PLP)

Mahmud Ali, Dr. Tasaddque Hussain and Nazir Ahmad Bajwa for Petitioner. Sardar Muhammad Iqbal Khan for Respondent. Karam Elahi Chauhan for the R. A. By an order dated 2‑8‑56 I remanded this case to the Deputy Custodian of Evacuee Property, Sialkot, directing him to examine any additional evidence which the petitioner Abdul Hamid may produce in respect of the payment of Rs. 3,000 on account of mortgage and to record a fresh decision on this point after giving opportunity to the Rehabilitation Authority and Mst. Sardar Begum to rebut the evidence produced by the petitioner. From the order of the Deputy Custodian, Sialkot; dated 23‑11‑1956 it appears that the petitioner produced an affidavit of Chaman Lal mortgagee admitting payment of Rs. 3,

000. This affidavit was attested by a First Class Magistrate and bore the seal of the Deputy High Commissioner of Pakistan in Chandigarh. He produced an attested copy of an order passed by the Claims Officer, Amritsar, showing that Chaman Lal mortgagee had claimed only Rs. 5,000 on account of this mortgage and had admitted receipt of Rs. 3,000 from the petitioner. This order also bore the seal of the Deputy High Commissioner for Pakistan and is dated 14‑3‑1951. The Petitioner also produced a certified copy of the original mortgage deed bearing an endorsement showing that the mortgagee had received Rs. 3,000 out of the total mortgage amount of Rs. 8,000 on 11‑8‑1947 and had given the petitioner a separate receipt for the same. That receipt had already been produced and was marked Exh. P.

20. This certified copy of the original mortgage deed with the endorsement was attested by a First Class Magistrate and bore the seal of the Deputy High Commissioner for Pakistan. After considering this additional evidence the learned Deputy Custodian observed that the question was whether the payment of Rs. 3,000 by Abdul Hamid to Chaman Lal could be deemed to have been proved. Dealing with the affidavit he said that no admission made by any evacuee after 1 3‑1947 can bind the Custodian. The question is not whether the Custodian is bound by the admission made by the mortgagee but whether he is satisfied that payment was actually received by the mortgagee. The learned Deputy Custodian did not consider that the order of the Claims Officer, the endorsement on the mortgage deed and the receipt which had been acknowledged by Chaman Lal to be genuine proved the payment of Rs. 3,000 because the admission before the Claims Officer, the receipt and the endorsement may have been made by the mortgagee without receiving any payment. I am afraid I cannot accept this line of reasoning. In this way no payment can ever be said to have been duly proved. I hold that payment of Rs. 3,000 by the petitioner to Chaman Lal mortgagee has been satisfactorily established. The next point raised by the Deputy Custodian is that the payment was not made through any official agency. According to certain instructions of the Central Government the Deputy Custodian are allowed to admit pay?ment of consideration for transfer of property if payment was made through a Scheduled Bank or before the Registrar, but the Custodian has been empowered to admit payment if he is satisfied that it was actually made in any other manner. These instructions apply to cases of transfer. The petitioner does not say that he has paid Rs. 3,000 for any transfer in his favour. His case is that he has paid Rs. 3,000 on account of the secured debt which he owes to Chaman Lal and for that he relies upon the admission of Chaman Lal before the Claims Officer, the endorsement made by him on the mortgage‑deed and the receipt given and admitted by him. The Deputy Custodian has expressed the opinion that Cbaman Lal was not competent to receive this money or to give a valid discharge in respect thereof because the property had vested in the Custodian from 1‑3‑

47. The property which had vested in the Custodian from 1‑3‑47 was the mortgage in favour of Chaman Lal evacuee. A debt is property within the meaning of section 2 subsection (5), Act 12 of 1957 and the only question for determination is the amount of debt. If the petitioner had paid Rs. 3,000 then the debt which can be called evacuee property is Rs. 5,000 which the petitioner is willing to pay. Counsel for the Rehabilitation Authority cites section 11 Evacuee Property Ordinance, XV of 1949, which says that any amount due to an evacuee or payable in respect of evacuee property shall be paid to the Custodian by the person liable to pay the same and any person who makes or has made any payment otherwise than in accordance with this provision of law or any other law for the time being in force requiring payment of such amount to be made to the Custodian, shall not be discharged from his obligation to pay the amount due and the right of the Custodian to enforce this obligation against such person shall remain unaffected. Section 11 of Ordinance XV of 1949 became law in the year 1949. It has to be seen whether there was any law requiring payment to be made to the Custodian when payment of Rs. 3,000 was made on 11‑8‑

47. There was no such law at that time and I can see no reason why this payment which has been amply proved should not be admitted. I, A therefore, order that the answer to the reference from the Civil Court shall be that the sum of Rs. 3,000 has been paid by the petitioner on account of the mortgage debt due from him to Chaman Lal evacuee. It is urged by the 7counsel for Mst. Sardar Begum that the Deputy Custodian should have given no finding on the question whether the property belonged to the plaintiff or Mst. Sardar Begum. But, without giving a finding on this point how could the Deputy Custodian have determined whether the petitioner had the right to mortgage this property and the evacuee had any interest in this property or not. If the counsel for Sardar Begum believes that the order of the Deputy Custodian in respect of the rights of the Petitioner and his sister Sardar Begum, inter se, was without jurisdiction he can represent this to the Civil Court. In my opinion, however, the Deputy Custodian could not have decided whether Chaman Lal evacuee had any interest in this property and, if so, to what extent without deciding whether the plaintiff was the owner of and had the right to mortgage the property. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.