P L D 1964 Supreme Court 865 (PLP)

CORNELIUS C. J.?This appeal is directed against an order of the Custodian of Evacuee Property, dated the 29th July 1960. Leave to appeal was granted by-this Court on the 30th November 1960. Under the Constitution of 1956 such an appeal was com?petent, but under the present Constitution the power of this Court to admit appeals is confined to judgments and orders of the High Court. On this ground, a preliminary objection was taken on behalf of the respondent that this Court had no jurisdiction to decide this appeal. It is clear that in the absence of an express provision in the new Constitution to that effect, this appeal does not abate. The appellants were entitled under the Constitution of 1956 to seek special leave to appeal from this Court, and when such leave was granted, the right became a vested right to have the decision of the Tribunal appealed from examined by the Court. There is nothing in the new Constitution which can operate to take away a right so vested. Again by virtue of 4 Article 250 of the present Constitution, the repeal of a law effected by that Constitution is not to affect anything already done or suffered under that law. One of the laws so repealed was the Laws (Continuance in Force) Order, which had the effect of keeping the previous Constitution of 1956 in operation, in the relevant, respect but at sub-Constitutional level. Consequently, this appeal having been competently admitted by this Court under power derived from the previous Constitution, in the absence of a provision for abatement, this Court clearly has jurisdiction to proceed with end to decide this appeal. The subject-matter consists of' 900 acres (902 acres, 16 ghuntas to be exact) of land situated in the area commanded by the Lloyd Barrage in Sind and it is common ground that at present, the land stands transferred to the three appellants, Sheikh Ijaz Ahmad, Begum Ijaz Ahmad and Ch. Asadullah Khan. These appellants were transferees in 1955 from the first appellant, Ch. Sir Muhammad Zafrulluh Khan, to whom the land had been transferred in 1951-52 by Ch. Rashid Ahmad who is also a respondent in this appeal. Ch. Rashid Ahmad in his turn had obtained a transfer of the land from the respondent Nanikram on the 9th February 1950, and Nanikram himself had taken the land on transfer on the 23rd June 1949 from his brother Bhamumal, who emigrated to India thereafter. The original grant was made in the name of Bhamumal, and the subsequent transfers were all duly made with the consent of the Barrage authorities and mutation of names was duly sanctioned on each occasion. A short account of the various proceedings before the Evacuee Property authorities is desirable. Bhamumal and Nanikram who have already been mentioned had two other brothers Harumal and Leelaram, who with their mother Shrimati Poonjibai constituted a joint Hindu Family. Harunial in 1940 took his share of the Joint Family Property and separated from them, and he and his affairs are outside the sphere of consideration in this judgment. The three other brothers continued to live jointly with their mother, although it is a question whether they were once again constituted as a Joint Hindu Family after the rupture caused by the separation of Harumal. It is in evidence that these three brothers acquired substantial areas of land subsequently, but did so in their joint names, and not as a joint Hindu family, After the departure of Bhamumal to India, the two remaining brothers Nanikram and Leelaram applied to the Custodian in 1950 for declarations that they were not evacuees, and that three-fourths of the family property, i.e., excluding the share of Bhamumal, the evacuee, should be declared non-evacuee property. Details of the property were given, which included the land here in question. The Custodian referred the matter to the Central Government and following receipt of orders on the 24th May 1950, he made an order allowing "their appeal". There was in fact no appeal. The order is silent as to the property, but that is immaterial, for any property which can be shown to belong to the persons who had been declared to be non-evacuees would clearly be non-evacuee property. At the time when the petition was presented, the transfer to Ch. Rashid Ahmad had not yet taken place. It took place on the 9th February 1950, and the order of the Custodian aforesaid was made on the 24th May 1950. Later, the same Custodian by order dated the 3rd March 1951 allowed an application by Nanikram, Leelaram and Poonjibai to be appointed managers of the share of Bhamumal, but imposed certain conditions, one being that the allottees should not have raised any objection to their managership to 1955, a successor Custodian issued notice to these persons to show cause why "the order of Mr. Akbar Husain dated 3rd March 1951 regarding management of property belonging to Nanikram Shamdas, and others may not be reviewed." (It appears that the Rehabilitation Commissioner had also moved the Custodian in this behalf as well as to determine the nature of the property, although the order eventually made, in two places states that it was a suo mote proceeding). The Custodian heard counsel on behalf of Nanikram, etc., as well as counsel for the "Administration" (Rehabilitation Authorities). He found that 1,082 acres of Barrage land, "other property stood in the name of his father and other brothers, were sufficient to establish conclusively that the Barrage land belonged to Bhamumal exclusively, the Custodian by order dated the 23rd February 1956 declared all the Barrage land to be evacuee property. He had earlier removed Nanikram, etc., from managership of Bhamunnal's share, and this order too was also confirmed. Later, on the 15th March 1956, when it was brought to his notice that "the area of Barrage land in the name of Bhamumal was only 900 acres," the Custodian refused to amend his previous order, saying that he relied on the figure of 1,082 acres furnished by the Rehabilitation Commissioner. An incident which had occurred earlier as that in November 1951, the Deputy Custodian declared Nanikram to be an "intending evacuee" and also declared his property in Pakistan to be evacuee property. The latter part of his order was set aside in appeal by the Additional Custodian on the ground that the necessary condition for declaring the property of an intending evacuee to be evacuee property was not satisfied. This order was maintained in revision by the Custodian. Since their lands had been ordered to be treated as evacuee property, Nanikram and Leelaram became entitled to seek a decision on the point under section 18 of the Ordinance of 1949, and they moved such an application before the Assistant Custodian, who made an order thereon the 19th December 1957. With reference to the 900 acres of Barrage land, which had been transferred to Ch. Rashid Ahmad, the Assistant Custodian held that this land could not be held to be evacuee property in 1956, "as provisions of section 36, subsection (4) of Ordinance No. ASV of 1949 corresponding to section 43 (4) of the present Act were not complied with," and therefore any order passed "affecting this portion of land would be against natural justice and also altogether illegal." This defect did not however appear in rela?tion to the balance of 90 acres of Barrage land with which the order was concerned. The Assistant Custodian held that the order in review made by the Custodian was free of defect in respect of these 90 acres which were still held in their possession by Nanikram and Leelaram. He made a brief examination of the evidence led in relation to the proprietorship of this land and relying on the fact that the name in the Barrage papers was that of Bhamumal alone as owner, Ire finally maintained the view already expressed by the Custodian that as to 90 acres of the Barrage land, it must be held to be evacuee property, and had been rightly treated as such it should be mentioned that as before the Custodian, so before the Assistant Custodian, Ch. Rashid Ahmad was not made a party. Against the assistant Custodian's order, an appeal was brought, not by the Rehabilitation Authorities, but by Nanikram, Leelaram and their mother Poonjibai, for the purpose of saving their three-fourths share in the 90 (ninety) acres which the Assistant Custodian had held to be rightly treated as evacuee property. In this application, they expressly stated that in June 1949, before his migration, Bhamumal had received the value of his one-fourth share in the 900 acres of unpaid (i.e., partially paid) Barrage land, and thereafter had made a statement before the Revenue Officer, and following that, Nanikram's name was entered in place of Bhamumal in the Barrage registers. A statement to that effect is also included in affidavit by Nanikram supporting the appeal which was on behalf of both brothers. It was when this appeal came up for hearing before the Custodian, that the question of the nature of the 900 acres of Barrage land, which were not the subject of the appeal, was taken up suo motu by the Custodian. Notice was issued to Ch. Rashid Ahmad and later to Sir Muhammad Lafrullah Khan., Sheikh and Begum Ijaz Ahmad and Ch. Asadullah Khan. In his order by which the entire land was declared to be evacuee property, the Custodian dealt with the question whether the provisions of section 36 of the Ordinance of 1949 stood in the way of the declaration by his predecessor' of the 23rd February 1956 that all of the Barrage lands were evacuee property. The argument he employed was that the section aforesaid only required notice to be served upon the `parties concerned" and since Ch. Rashid Ahmad and Sir Muhammad Lafrullah Khan had not been made parties to the proceedings before his predecessor they were not parties concerned" and therefore it was not necessary for the Custodian to hear them before modifying the Assistant Custodian's order. It should be mentioned that at no stage had it been suggested that either the transfer in favour of Ch. Rashid Ahmad or any of the subsequent transfers was not made bona fide for proper consideration. The Custodian however held that the price paid for the land by Ch. Rashid Ahmad was not adequate. On this point, it may be said at once that on the valuation adopted by the Custodian himself, the difference between the price he assessed, and that actually paid is no more than Rs. 8,000, which is only a small fraction of the price assessed, viz., Rs. 1,03,

000. By adding certain supplements made necessary in the Custodian's opinion by rising prices and improved condition of the land, he came to the conclusion that the differential should be as much as some Rs. 23,

000. These estimates were not based on any plead?ings, or issues or evidence. There was no application for confirmation of a sale of exacuee property before the Custodian. Here, the question of the nature of the greater part of the property had yet to be decided. The difference of value found by the Custodian is clearly too small to reflect upon the bone fide nature of the transaction. Determination of the nature of the property was a judicial question, involving as it did an exact ascertainment of title in immovable property. It was apparent on the face of the record that rights in that property had accrued by virtue of transfers in favour of Ch. Rashid Ahmad and the subsequent transferees at the time when the Custodian's order of the 23rd February 1956 was made, and on a proper reading of section 36of the Ordinance of 1949 of which the proviso to subsection (4) is in particular relevant, it would indeed seem that the Custodian was forbidden to make an order revising or modifying any order "affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard." To say that these transferees for value were not "parties concerned" qua review of the earlier orders, vague though they might be thought to be, under which Nanikram and Leelaram and their mother were treated as non-evacuees and their share of the ?joint property as non-evacuee property, is in my opinion to avoid a fairly patent issue. But the real flaw in the matte appears to me to be this, that the Assistant Custodian having discovered the bar of section 36(4), and being required under section 18 of the Ordinance of 1949 to determine judicially how much was evacuee property and how much non-evacuee, his own duty was to summon all persons affected thereby and after full and proper hearing, to give his decision. Before him there was only a single respondent, namely, the Rehabilitation Authority. He was aware of the transfer, and there was nothing to prevent him from impleading the transferees and proceeding to a full and proper examination of the questions in the case. As observed earlier, since title in land was involved and complex questions had arisen, the case was an eminently suitable one for application o the full procedures of the law appropriate to decision of such questions. By the time that the Assistant Custodian decided th?e mater, Central Act No. XII of 1957 had come into force, containing express provisions in section 30 enabling the Custodian to exercise all the powers of a Civil Court for the proper investiga?tion and decision or questions arising. Under section 25(2)(n), the Custodian was also empowered to "refer any dispute between the evacuee and any other person to arbitration or to a Civil Court for adjudication ??." If the Assistant Custodian had acted under these powers, it would have been possible for him to have investigated the rival contentions in the manner which is accepted in all jurisdictions as appropriate to the determination of a question of title in immovable property. The property was clearly of very consider-able value. The title which the Rehabilitation Department was invoking is a title which, under the law, is deemed to be vested in the Custodian with effect from the 1st March 1947. But much depended, in the circumstances of this case, upon proof being adduced as to the nature of the pre-existing titles, and the effect thereon of a transaction which took place in the year 1949, to between a person Bhamumal who was permanently absent from Pakistan when the question came up for decision in 1957, and his brothers who continued to live in Pakistan. The latter were entitled to the belief that their rights in the land were squarely based upon the orders made on the 24th May 1950 by the Custodian, followed by the later order of the 3rd March 1951, b which managership of a defined evacuee share in the property, viz., the share of Bhamumal was also entrusted to them. Moreover, further title by acquisition for value made bona fide with the full knowledge and approval of the Barrage authorities had developed in the interval, thus introducing a party with a real interest which according to the law they were entitled to assert in the litigation in support of Nanikram and Leelaram, on all grounds which were available to the latter. For a proper appreciation of these rival contentions, it was clearly essential that each party should be allowed to state the grounds of attack and defence in respect of each other's claims in detail. The questions thus arising having been ascertained and formulated in the shape of issues, due opportunity might then be provided to all parties to produce evidence in support of their respective cases and thereafter, arguments having been heard for proper appreciation of the questions of fact and law arising, a decision could be given. These are processes with which the Civil Courts are entirely familiar, and the question being one of title in immovable property, whose nature was obviously complicated, a Civil Court was probably the best instrument for its resolution. Nothing of the kind was attempted by the Assistant Custodian. The transferees were not made parties to the proceeding. H recorded a certain amount of evidence, but probably on account of the inferiority of his position to that of the Custodian, he contended himself with saying (1) that the Custodian's order was ineffective qua the transferred portion of the land, for lack of notice to the transferees, without going on to decide whether it was evacuee property or not, and (2) he merely repeated the grounds advanced by the Custodian, in support of the decision that the balance of the land, which he fixed at 90 acres, was evacuee property. Thus, there was no adjudication by the Assistant Custodian such as the case demanded. Nor was a proper adjudication attempted by the Custodian whose order in the case is before us in appeal. The appeal before him related merely to the 90 acres which had been declared evacuee by the Assistant Custodian. A new challenge to they title of the transferees in respect of 900 acres was raised by the Custodian himself suo motu. The Custodian examined two witnesses, namely, Lal Bakhsh, a Barrage Official and the first transferees, Ch. Rashid Ahmad. He did not obtain from the parties detailed statements of their respective 'claims, nor did he draw issues. His order which is before us deals with the following contentions: (1) Whether the land was the exclusive property of Bhamumal or whether it was owned by the joint family of which he was a member ? (2) Whether Bhamumal had an owner's title in the land or merely that of a grantee who had not paid the price in full?\ (3) Whether the price paid by the transferee was an adequate price ? As has been seen, the last question did not immediately or substantially arise in the case. The second question was decided on the basis that whatever rights Bhamumal had in the land would vest in the Custodian since he was admittedly an evacuee. On the first point, the decision of the Custodian proceeds on considerations of Hindu law relevant to ownership by a joint Hindu family. He came to the conclusion that at the time when the disputed land was acquired the three brothers, Bhamumal, Nanikram and Leelaram possessed only 106 acres of land. Of this, 61 acres had been acquired by them jointly, and this was a factor which the Custodian thought operated against the three brothers having become reconstituted as a joint Hindu Family after the separation of Harumal. In the absence of proof on the record to show how much income was derived from these 106 acres of land, the Custodian observed that : "it cannot be held that the 990 acres of land which were acquired by Bhamumal had been purchased with the income of the property jointly owned by the three brothers." He noted that the record equally did not show that Bhamumal had any separate source of income apart from that derived from these 106 acres, but he held that it was : "for the respondents to show by production of clear evidence, preferably documentary, that Bhamumal had no other source of income and that all the acquisitions were made by him on behalf of the family and with the help of the income of joint family property." He further observed that "the respondents have not even attempted to prove" these facts and in the absence of such proof, he could not hold that "Bhamumal was holding this land on behalf of the joint family and that the same was not his exclusive property." It is important to note the stress laid by the Custodian upon the absence of evidence on this point which he held to be crucial in relation to the decision of the question before him. An onus of proof was laid, in a proceeding which at best can be described as a sidewind, and a decision as to title has been given, on the basis of responsibility to discharge such onus, without any attempt at any stage to bring the question concerned, viz., of joint Hindu family into proper focus, and place it in issue between the parties. Before the Assistant Custodian, the descriptions "Joint", and in another place "joint family property" had been applied to the land, but there had been no clear assertion of a joint Hindu family and its property. Having parted with the bulk of the land, and their present interest being to save the balance of 90 acres only for themselves, Nanikram and Leelaram did not have the same concern to save the property from being declared evacuee as the transferees had, and they were not parties before, the Assistant Custodian. At the stage of evidence, therefore, there was no real contest on the question which assumed para?mount importance before the Custodian. The Custodian's order deals with two points of Hindu Law. The point of separation of one member, viz., of Harumal, offered no difficulty, as .the facts were admitted. The other point, namely, of the existence or otherwise of a nucleus of property, and its surplus income being sufficient to finance fresh acquisitions, resolved itself into a question of determination of the availability of such a surplus from the produce of the joint holding of 106 acres. The onus of proof was upon Leelaram and Nanikram, and it seems plain that a decision contrary not only to their interest, but to the much larger interest of the transferees for value has been given on this point, though no issue was framed,' and no opportunity allowed to produce evidence thereon. The final decision of the Custodian is stated in the following passage: "The evidence on the record is not sufficient to show that the income of the property jointly owned by the three brothers was sufficient with which about 990 acres of Barrage land could be acquired and as the land in dispute had been acquired in the name of one of the brothers alone, in the absence of evidence to indicate that it was acquired with the help of joint family funds, that land will have to be treated as the separate property of Bhamumal in whose name it had been so acquired." This case was argued before the Court for four separate days, and its consideration has caused me a great deal of anxiety. Mr. Mahmud Ali for the appellants, who are transferees from Ch. Rashid Ahmad, argued with great emphasis that the Custodian was wrong in drawing the dispute wholly within the context of the law relating to joint Hindu families. He drew our attention to a number of pieces of evidence on the record, which, in his submission went to show that the probabilities strongly favoured the conclusion that the acquisition by Bhamumal of Barrage land was not his personal or separate acquisition, but was in line with the earlier acquisition by the three brothers, that is to say, it was an acquisition on behalf of the members of the previous joint Hindu family remaining after the separation of Harumal and irrespective of whether or not they constituted a new joint Hindu family. He conceded that Bhamumal had executed a power-of-?attorney in favour of Nanikram before he left for India and that in it he acknowledged that the Barrage lands acquired in his name were joint Hindu family property, although they stood in his name exclusively, but he suggested that the reference to "Joint Hindu Family " may be a mere misconception. He pointed out that the fact that Bhamumal had no separate property of his own should stand in the way of the conclusion that the large sums he had to pay for the Barrage lands were his exclusive responsibility. Such land grants for which the price is to be paid by extended instalments, are, moreover, usually acquired out of the income from the land itself, as it is gradually brought under cultivation. Learned counsel referred to statements made before the Assistant Custodian by Nanikram, his brother Leelaram and another Hindu named Utoomal, as well as by a respectable Zamindar of the locality, Muhammad Yaqub Haji to the effect that Bhamumal, Nanikaram and Leelaram were joint and that the purchases of Barrage land were in fact joint purchases and that the lands used to be looked after jointly and the produce was also appropriated jointly by the family who continued to be joint in residence and mess after the separation of Harumal. Ch. Rashid Ahmad also made a statement to the same effect, although his information would not appear to be of the same personal character as that of the three Hindu witnesses and Muhammad Yaqub Haji. In the course of the argument, by search among the papers on the file, Mr. Mahmud Ali was able to produce a receipt for land revenue paid in respect of this land by Nanikram in the year 1946, in support of his contention that Bhamumal's interest in the Barrage land was not exclusive. On the basis of these pieces of evidence it was urged with emphasis that it was possible on the evidence to come to the conclusion that the Barrage land had been acquired by all the three brothers, and not by Bhamumal alone, and this contention was supported by the assertion that the Barrage authorities did not allow land to be entered in multiple names, but preferred that it should be in a single name. Mr. Mahmud Ali pleaded that in a civil case, the burden of proof is capable of being discharged on a balance of probabilities and here the probabilities favoured jointness in purchase and enjoyment. I do not propose in this judgment to consider in detail all the arguments presented on the two sides. There has clearly been confusion as to the issues in the case, arising from the fact that no issues were ever framed. The argument of joint ownership had been placed before the Assistant Custodian, who decided the case before him on quite other grounds, viz., that the sale to the transferees could not be touched for lack of notice, and as to the remaining 90 acres, the fact of the land being entered originally in the Barrage papers in the name of Bhamumal was regarded as sufficient for holding that portion to be evacuee property. The Custodian, on the other hand, viewed the matter wholly in the light of considerations arising out of the law of the joint Hindu Family, without their being any issue relating to, or decision upon, the question whether there was in fact a joint Hindu Family,' or it was merely a case of three Hindu brothers, owning and acquiring property jointly, and being joint in mess with their mother. Sitting in appeal from a Tribunal such as a Custodian, this Court would not interfere with any decision taken by him on the administrative side, provided it is shown that in reaching the decision the Custodian had satisfied the conditions of the relevant t law by taking into consideration and dealing fairly with all the matters which under the law he was required to evaluate in arriving at his decision. But the present is not a case of that kind. It is a case involving what is strictly a judicial question, namely, the demarcation of rival titles in an existing property. It was clearly expressed by the Custodian in the following words: "whether this land was the exclusive property of Bhamumal or whether it was owned by the joint family of which he was one of the members." Substantially and essentially, the question is one which lay' between Bhamumal the evacuee and the other members of his family who were non-evacuees. The Custodian could only be vested with that share of the property which belonged to Bhamumal. Under the law, the power of deciding upon the exact share was undoubtedly reserved to the Custodian but as was remarked at the outset of this judgment, the Custodian had all the powers of a Civil Court to investigate the matter and he also had the power, when the question lay between an evacuee and a non-evacuee, to refer the matter for decision to a Civil Court. In other words, it was open to the Custodian to deal with the case as if it were a suit relating 'to title in land, according to the recognised procedure of the Civil Courts. In the alternative, he could have referred the contesting parties to a Civil Court for decision of the suit. The requirement was that justice should be done. The case was such that, except by the full procedure, justice could not be done. The procedures followed were such as to make it plain that in this case, justice was not seen to be done. In an appeal from a Tribunal such as a Custodian this Court does not substitute its own view of evidence for that formed by the Custodian, unless the conclusion of the Tribunal be vitiated by some grave departure from either the minimum requirements of procedure for the doing of justice between the parties, or unless the conclusion upon a point of law or even on a point of fact is vitiated by a similar departure from accepted principles of the admission and evaluation of evidence, or of natural justice and the requirements of reason. Mr. Mahmud Ali has pressed upon us that we should upon the available evidence come to the conclusion that Bhamumal and his brother did not form a joint Hindu family, but nevertheless were joint in mess and property and the Barrage land was such property. As has been remarked already the Custodian treated the case as one falling exclusively within the law of the joint Hindu family. To concede the argument of Mr. Mahmud Ali would therefore involve not only a conclusion upon the evidence contrary to that reached by the Custodian but also a decision on a point which was never before Custodian. That would be an action in excess of the limited jurisdiction which this Court exercises in respect of Tribunals such as the Custodian, but in my opinion the decision of the Custodian in this case cannot be allowed to stand for the reason that it is a decision taken by a procedure which was wholly inadequate for the doing of justice in the case, and therefore it is appropriate for this Court to exercise in the present case the limited powers avail-able in certiorari, namely, to quash the order and direct that the matter should be decided as indicated above; i.e., by the full procedure of a civil suit within the powers given to the Custodian under the relevant law. I would therefore allow this appeal and setting aside the order of the Custodian, would remand the case to him for a fresh decision, which may be made in one of the following forms; the case may he heard and decided by the Custodian or one of his subordinates, but in the manner of a civil suit allowing the parties the usual facilities to set out their cases and the reliefs they seek in full, thereafter, drawing issues and giving the parties adequate o opportunity to lead their evidence upon the questions arising. Alternatively, if the Custodian so thinks fit, he may refer the whole case to a Civil Court for decision of questions other than, those e.g., confirmation of sale of evacuee property, lying, within his special jurisdiction. The error being one of procedure, I would leave the parties to bear their own costs. S. A. RAHMAN, J.?I agree. ?FAZLB-AKBAR, J.?I agree. HAMOODUR RAHMAN, J.-I agree. B. Z. KAIKAUS, J.?I have had the advantage of reading the judgment which my Lord the Chief Justice intends to deliver in this case. I find that my Lord is unable to entertain the plea that even if the land in dispute was not joint family property it was jointly owned by the brothers because this plea had not been taken before the Assistant Custodian or the Custodian, but my Lord has remanded the case on the ground that in the procedure adopted by the Custodian "justice was not seen to be done." I have studied the judgment of my Lord carefully in order to find out what exactly are the defects in the procedure adopted by the Custodian. I find that the defects are contained in the three consecutive paragraphs beginning with : "If the Assistant Custodian had acted under these powers." with respect to the Assistant Custodian the defect pointed out is that he did not frame any issues and did not make the transferees parties. There is at the same time an observation that he "recorded a certain amount of evidence" which may suggest that he did not record all the evidence that was produced. So far as the Custodian is concerned the defect in his procedure is that "he did not obtain from the parties detailed statements of their respective claims nor did he draw issues" and that he examined only two witnesses a Barrage official and the first transferee Ch. Rashid Ahmad. No plea had been raised by the appellants either in their petition for special leave or at the time when the petition for special leave was argued or in the concise statement or in the arguments before us that there was any defect in the procedure adopted by the Custodian. A question of defect of procedure is always a question of prejudice. Obviously when there is no point made of any defect of procedure by the party there is no prejudice to the party. With great respect I do not in the first place see any ground for our raising this question suo motu. It is at the same time to be remembered that the respondents had no opportunity of meeting this point and it will not be proper, apart from all other considerations, to order a remand without there being any opportunity to the respondents to argue the point. Also it may not be possible on the present record to decide the question as to defect of procedure satisfactorily for the record that is printed has reference only to the pleas raised and documents which related to this plea may not have been printed. However, I have gone through the printed record and I have little doubt that no fault can be found with the procedure of the Custodian. Let me state the facts in brief in so far as they relate to the question under discussion. The application that the property in dispute was not evacuee property which had been filed before the Assistant Custodian related to the whole of 990 acres. The application stated that 900 acres had already been transferred to Rashid Ahmad, but as the declaration by the Custodian dated 23-2-1956 as to their being evacuee property affected the liability of the applicants they had filed the application in relation to these 900 acres too. Before the Assistant Custodian only the Rehabilitation Department had been cited as the opposite-party. Evidence was produced by the applicants Nanikram and Lilaram before the Assistant Custodian and there never has been any complaint by them (they are parties even in appeal before us and have filed a concise statement and also argued their case) that there was any lack of full opportunity of producing evidence. That no issue was framed could hardly create prejudice for the applicants for on the merits the only fact to be proved was that the property in dispute was joint family property and the absence of an issue did not in any way prevent the applicants from producing evidence on this point. A good deal of evidence was produced. Six witnesses were examined; the original partnership deed between the four brothers, a number of sale deeds jointly in favour of three brothers, a number of receipts of pay?ments to Barrage authorities and also the previous orders in favour of the family made by the Custodian were produced. It is not suggested that there was any further evidence which could be produced, but which for some misunderstanding was not produced. Ch. Rashid Ahmad the transferee though not made party was examined as a witness by the applicants. The Assistant Custodian dismissed the application with respect to 90 acres, but with respect to 900 acres he said that the applicants had no locus stanch to apply as they had already transferred. However, he held that the order of the Custodian of 23-2-1956 declaring these 900 acres to be evacuee was illegal as it was passed without notice to the transferee. Against the order of the Assistant Custodian only Nanikram etc. filed an appeal. This appeal related only to 90 acres. When the matter came up for hearing before the Custodian he was Prima facie not satisfied with the order that had been passed by the Assistant Custodian and in the first instance he ordered that Ch. Rashid Ahmad the transferee as well as Choudhri Sir Muhammad Zafrullah Khan to whom the land had been transferred by Rashid Ahmad be made parties. For the purpose of understanding the order of the Custodian which I am going to reproduce it may be stated here that these two were henceforth shown as respondents Nos. I and 2 in the appeal. When notice was served on these two respondents they appeared and objected to their being impleaded at all on the ground that there being no prayer in the appeal with respect to 900 acres of land. The Custodian then decided to act suo ntotu in the matter and directed a notice under section 43(4) against these respondents for showing cause as to why the order of the Assistant Custodian in their favour should not be set aside. Following is the order which the Custodian passed : "Mr. Dingo Mal, who has appeared for respondents Nos. 1 and 2, says that as the appellants have not made any prayer in their appeal with regard to 900 acres of land, transferred in favour of these respondents, they should not have been made a party in this case. At this stage, it is not necessary for me to give any decision on this point, but with a view to meet the objection raised by Mr. Dingo Mal, I direct, under section 43, clause (4) of the Pakistan (Administration of Evacuee Property) Act, 1957. that a notice be issued to these respondents to show cause why the order dated the 19th December 1957, passed by the Assistant Custodian, Hyderabad, so far as it affects their rights, should not be set aside. This notice may be served formally on Mr. Dingomal on behalf of these respondents, who may, if he so desires, file a written reply on the next date. This case is adjourned to the 25th September, 1959, for further proceedings. A separate file should be opened with regard to the notice which I have ordered should be issued under section 43, clause (4) of the Pakistan (Administration of Evacuee Property) Act, 1957." It will be observed that by this order the Custodian issued a notice to "respondents 1 and 2" for showing cause why the order of the Assistant Custodian should not be set aside and gave a direction to Mr. Dingomal who appeared for them to file a written reply if the respondents so desired. A separate file was then prepared in relation to the notice served on the respondents. On the 29th October 1959, it was brought to the notice of the Custodian that Sir Muhammad Zafrullah Khan had already transferred the whole of his land in dispute in favour of Sheikh and Begum Ijaz Ahmad and Ch. Muhammad Asadullah. The Custodian ordered that these three should also be made parties and that notice to all of them should be issued "on the same lines as the notice ordered to be served by means of my order dated 29-8-1959." On the next date `that is, 30th August 1959, Mr. Dingomal who had already appeared for Ch. Rashid Ahmad and Sir Muhammad Zafrullah Khan accepted notice on behalf of the other respondents as well. Whether actually a reply was filed by Mr. Dingomal we do not know because as already stated there being no objection on this ground the relevant documents have not been printed. As regards the opportunity which the Custodian gave to the respondents for leading evidence similarly we have not got the day today orders, but it becomes clear on what just by chance appears on this record that there was an opportunity to produce evidence and the respondents closed their case. So far as the documents with the Barrage authorities are concerned the Custodian had himself made through inquiries and Lal Bakhsh the Clerk of the Barrage Department had been examined under the orders of the Custodian, but Ch. Muhammad Rashid appeared as a witness on behalf of the respondents and made a statement which covers about seven typed pages. Mr. Dingomal who was appearing on behalf of all the respondents then made the following statement :- "I do not wish to produce any more evidence and close my case. With great respect I am unable to see that the Custodian did any thing which was not consistent with the proper administration of justice. He found that the Assistant Custodian had not decided the questions as to whether 900 acres of land transferred to Ch. Rashid Ahmad were evacuee while the Custodian had found this property to be evacuee by his order of 23-2-1956. That order had been found to be not binding on the transferee for want of notice but the matter had to be decided. The Custodian would have failed in his duty if he had taken no further notice of this area of 990 acres. So he made the' transferees parties in the appeal in order to decide the question finally. The transferees objected that complaint by them (they are parties even in appeal before us and have filed a concise statement and also argued their case) that there was any lack of full opportunity of producing evidence. That no issue was framed could hardly create prejudice for the applicants for on the merits the only fact to be proved was that the property in dispute was joint family property and the absence of an issue did not in any way prevent the applicants from producing evidence on this point. A good deal of evidence was produced. Six witnesses were examined; the original partnership deed between the four brothers, a number of sale deeds jointly in favour of three brothers, a number of receipts of pay?ments to Barrage authorities and also the previous orders in favour of the family made by the Custodian were produced. It is not suggested that there was any further evidence which could be produced, but which for some misunderstanding was not produced. Ch. Rashid Ahmad the transferee though not made party was examined as a witness by the applicants. The Assistant Custodian dismissed the application with respect to 90 acres, but with respect to 900 acres he said that the applicants had no locus standi to apply as they had already transferred. However, he held that the order of the Custodian of 23-2-1956 declaring these 900 acres to be evacuee was illegal as it was passed without notice to the transferee. Against the order of the Assistant Custodian only Nanikram etc. filed an appeal. This appeal related only to 90 acres. When the matter came up for hearing before the Custodian he was Prima facie not satisfied with the order that had been passed by the Assistant Custodian and in the first instance he ordered that Ch. Rashid Ahmad the transferee as well as Choudhri Sir Muhammad Zafrullah Khan to whom the land had been transferred by Rashid Ahmad be made parties. For the purpose of understanding the order of the Custodian which I am going to reproduce it may be stated here that these two were henceforth shown as respondents Nos. 1 and 2 in the appeal. When notice was served on these two respondents they appeared and objected to their being impleaded at all on the ground that there being no prayer in the appeal with respect to 900 acres of land. The Custodian then decided to act suo motu in the matter and directed a notice under section 43(4) against these respondents for showing cause as to why the order of the Assistant Custodian in their favour should not be set aside. Following is the order which the Custodian passed : "Mr. Dingo Mal, who has appeared for respondents Nos. 1 and 2, says that as the appellants have not made any prayer in their appeal with regard to 900 acres of land, transferred in favour of these respondents, they should not have been made a party in this case. At this stage, it is not necessary for me to give any decision on this point, but with a view to meet the objection raised by Mr. Dingo Mal, I direct, under section 43, clause (4) of the Pakistan (Administration of Evacuee Property) Act, 1957. that a notice be issued to these respondents to show cause why the order dated the 19th December 1957, passed by the Assistant Custodian, Hyderabad, so far as it affects their rights, should not be set aside this notice may be served formally on Mr. Dingomal on behalf of these respondents, who may, if he so desires, file a written reply on the next date. This case is adjourned to the 25th September, 1959, for further proceedings. A separate file should be opened with regard to the notice which I have ordered should be issued under section 43, clause (4) of the Pakistan (Administration of Evacuee Property) Act, 1957." It will be observed that by this order the Custodian issued a notice to "respondents 1 and 2" for showing cause why the order of the Assistant Custodian should not be set aside and gave a direction to Mr. Dingomal who appeared for them to file a written reply if the respondents so desired. A separate file was then prepared in relation to the notice served on the respondents. On the 29th October 1959, it was brought to the notice of the Custodian that Sir Muhammad Zafrullah Khan had already transferred the whole of his land in dispute in favour of Sheikh and Begum Ijaz Ahmad and Ch. Muhammad Asadullah. The Custodian ordered that these three should also be made parties and that notice to all of them should be issued "on the same lines as the notice ordered to be served by means of my order dated 29-8-1959." On the next date `that is, 30th August 1959, Mr. Dingomal who had already appeared for Ch. Rashid Ahmad and Sir Muhammad Zafrullah Khan accepted notice on behalf of the other respondents as well. Whether actually a reply was filed by Mr. Dingomal we do not know because as already stated there being no objection on this ground the relevant documents have not heen printed. As regards the opportunity which the Custodian gave to the respondents for leading evidence similarly we have not got the day today orders, but it becomes clear on what just by chance appears on this record that there was an opportunity to produce evidence and the respondents closed their case. So far as the documents with the Barrage authorities are concerned the Custodian had himself made through inquiries and Lal Baldish the Clerk of the Barrage Department had been examined under the orders of the Custodian, but Ch. Muhammad Rashid appeared as a witness on behalf of the respondents and made a statement which covers about seven typed pages. Mr. Dingomal who was appearing on behalf of all the respondents then made the following statement:-‑ "I do not wish to produce any more evidence and close my case. With great respect I am unable to see that the Custodian did any thing which was not consistent with the proper administration of justice. He found that the Assistant Custodian had not decided the questions as to whether 900 acres of land transferred to Ch. Rashid Ahmad were evacuee while the Custodian had found this property to be evacuee by his order of 23-2-1956. That order had been found to be not binding on the transferee for want of notice but the matter had to be decided. The Custodian would have failed in his duty if he had taken no further notice of this area of 990 acres. So he made the transferees parties in the appeal in order to decide the question finally. The transferees objected that the appeal did not relate to these 900 acres. The Custodian, to avoid any technical objection, started proceedings suo motu under section 43 and as is required by section 43(4) he served a notice on the transferees and started a separate file. In the notice he called upon the transferees to show cause why the order of the Assistant Custodian should not be set aside and he also gave the transferees opportunity to file a written reply. He then allowed them to lead evidence. The respondents led evidence and closed their case. The point before the Custodian so far as facts are concerned was only one, that is, whether the property was joint family property. This is the only point on the merits which was argued before the Assistant Custodian, and the Custodian. I do not find it possible under the circumstances to say that there was any denial of the principles of justice. No particular purpose would have been served by framing a specific issue on the question as to whether the property in dispute was joint family property. Everybody concerned knew that that was the only question of fact involved. As already stated an objection as to procedure has force only if prejudice be caused unless there be some strict' statutory provision which vitiates proceedings in case of non- t compliance and there is no such statutory provision here. But as a matter of fact there was no defect in procedure at all. That is why no grievance was ever made by the present appellants that they did not have a fair opportunity of putting their case before the Custodian. The case was argued before the Custodian for a number of days. There were two preliminary objections and there was exhaustive discussion on the question whether the property in dispute was joint family property. Yet no objection was ever taken to the propriety of the procedure adopted by the Custodian. The same Mr. Dingomal who had appeared before the Custodian then filed the petition for special leave and it was he who filed concise statement when the case came up for hearing before this Court. He did not in the grounds of petition for leave refer to any defect in procedure nor did he argue this matter when leave to appeal was granted. He filed a concise statement the last paragraph of which enumerates the grounds of attack on the order of the Custodian. These grounds are fifteen in number and cover five typed pages. Although there are a large number of legal questions raised in these grounds there is not a single reference to any lack of oppor?tunity before the Custodian or to any defect in procedure. Nor was the point as already stated argued at the hearing. With respect to such defects in procedure the settled rule is that they can always be waived and had there been any defect in procedure it would surely have been waived by the fact that no objection was ever taken at any stage. Even if this was an appeal in an ordinary civil suit I would not in the circumstances be prepared to remand the case on the ground that the principles of natural justice had not been adhered to. But we are dealing with a case of special appeal under Article 160 of the late Consti?tution which in accordance with the view taken by this Court in a number of cases and by my Lord the Chief Justice in the Judg?ment in this very case has a very limited scope. My Lord has pointed out that interference in such appeals is not possible unless "the conclusion of the Tribunal be vitiated by some grave departure from either the minimum requirements of procedure for the doing of justice between the parties, or unless the con?clusion upon a point of law or even on a point of fact is vitiated by a similar departure from accepted principles of the admission and evaluation of evidence or of natural justice and the require?ments of reason." In Muhammad Said v. The Election Petitions Tribunal (1) which appears to be the first case where the jurisdiction exercised under Article 160 was explained it was said : (1) P L D 1957 S C (Pak.) 91? "I may state at the very outset that the supervisory jurisdic?tion of the Supreme Court under Article 160 is a restricted jurisdiction and an appeal to invoke it will not succeed where a special Tribunal like the Election Tribunal, has functioned within the spirit and the intention of the statute that created it and while so functioning has made a real and honest endeavour to judge facts on the merits of the evidence and to apply the law to them. A finding of fact thus arrived at, however, erroneous, will not be scrutinized or reviewed by this Court, and even if an error of law be committed by the Tribunal that will not be considered to be a sufficient ground for interference unless the law so misunderstood or misapplied raises some general question of fundamental importance to the proper functioning of the Tribunal or the decision of the case." In Ata Ullah Malik v. Custodian of Evacuee Property (2) this judgment was relied upon by a majority of this Court for dismiss?ing an appeal under circumstances which call for attention. An application had been put in before a Deputy Custodian for confirmation of a transfer by a transferee from an evacuee and the allottee of the property in dispute had been made a party. The application was rejected by the Deputy Custodian on the ground of want of income-tax clearance certificate, but permission was given for revival of the application on production of such certificate. The allottee appealed against this order to the Custodian and the Custodian set aside the order permitting revival. Subsequently the transferee filed an application for revival before the Deputy Custodian (his successor) without impleading the allottee as a party and without bringing it to the notice of the Deputy Custodian that the order permitting revival had been set aside by the Custodian. The Deputy Custodian entertained the application for revival on the basis of the order (of his predecessor) permitting revival, but on the merits dismissed the application. On appeal by the transferee in which to the allottee was not made a party the sale was confirmed by the Additional Custodian. The allottee had become entitled to the transfer of the house and had secured a provisional transfer order and he came to know from the Settlement authorities of the proceedings taken by the transferee. He then approached the Custodian in revision attacking the whole proceedings as fraudulent because the order of the Custodian disallowing revival was suppressed and he was deliberately not made a party to the proceedings, and also as without jurisdiction, because the Deputy Custodian had in the second application simply proceeded to revive the old application on the basis of the previous order of the Deputy Custodian which had in fact been set aside in appeal. The allottee pointed out further that there was no proof of pay?ment or adequacy of consideration. The Additional Custodian had not considered the question of payment of consideration at all though assuming payment he had determined its adequacy. The allottee at the same time attacked the proceedings on the ground that he was a necessary party under the rules and had not been impleaded at any stage and also contended that the applica?tion for confirmation was time-barred. The Custodian did not go into the question of fraud and did not go into the question whether the revival was competent. As to limitation he considered only whether the first application which had been dismissed for want of a certificate was within time for the second application being for revival of the first no question of limitation arose with respect to it. As to payment of consideration the Custodian received from the transferee on the last day on which the case was argued before him an affidavit which had been sworn a few years earlier, and without giving the slightest opportunity to the allottee to rebut the affidavit or to call the deponent in the witness-box as he was entitled to, held that the sale price had been paid in the office of the Registrar before the deed was presented for registration though it was not paid before the Registrar. On this finding he dismissed the application in revision. When the appeal was argued before us the transferee contended that though the revival was not competent it could be regarded as a fresh application. But as a fresh application it was time barred by some years. There never had been any application for extension of time though section 5 of the Limitation Act had been made applicable by a rule. The Custodian had never considered the question of extension of time because he had regarded the revival to be competent and had not acted on the basis that this was a second application. His judgment did not deal with the question whether the revival was competent or whether there was fraud, although on the first question the transferee had no answer before us and as to the second the plain facts were that a revival had been asked for on the basis of an order set aside in appeal, the order of the Custodian had been suppressed and the allottee had not been made a party. He also did not deal with the question whether the proceedings were vitiated by failure to implead the allottee who was entitled to be impleaded under rule 17 of the Administration of Evacuee Property Rules and who was also entitled to be impleaded in the application for revival as he was a party to the original application of which revival was sought. Regarded as a fresh application the second application was barred by a few years and even before us there was no statement as to what could possibly constitute sufficient cause. In fact a finding as to sufficient cause was essential before the Custodian could have jurisdiction to entertain an application for confirmation. Important property rights were involved. The Custodian was admittedly functioning as a judicial tribunal and not in any administrative capacity for otherwise an appeal under Article 160 would not have been competent. On these facts a majority of this Court held that in accordance with the view taken in Muhammad Saeed v. The Election Petitions Tribunal the order should not be interfered with. (2) P L D 1964 S C 236 In order that I may not be misunderstood let me state that my own view as to the jurisdiction of the Supreme Court in an appeal under Article 160 of the late Constitution is not in accord with the view taken in Muhammad Saeed v. The Election Petitions Tribunal. Article 160 provides for an appeal without any limita?tion as to grounds of interference. Where the word appeal alone is used without any qualification it means a rehearing of the matter by a superior tribunal that being the ordinary connotation of "appeal". When the Legislature intends to limit the grounds on which an appellate Tribunal can interfere it says so. In section 100 C. P. C. the provision is that a second appeal will be on questions of law and procedure only. In section 96 however which relates to first appeals all that is said is that an appeal will lie and the effect of absence of words of limitation is that the 4 appellate Court decides the matter afresh like the trial Court. In section 411-A Cr. P. C. where the intention was that an appeal against the order of a single Judge of the High Court appeal should lie on limited grounds it is so stated. There are innumer?able enactments where the word appeal only is used. No limita?tion can in those cases be read into the provision and this rule applies to the jurisdiction conferred by Article 160 also. I cannot, with great respect see any reason for attributing to the Constituent Assembly that enacted the Constitution the intention that the Supreme Court should have jurisdiction to interfere on limited grounds. If that was its intention it would have said so. In the opening words of the passage from Muhammad Saeed v. The Election Petitions Tribunal, which I have reproduced above, the words used are "supervisory jurisdiction of the Supreme Court is a restricted jurisdiction" which would show that the Supreme Court would have no jurisdiction to interfere except on grounds stated in the passage, but in the later portion of the passage it is said that an erroneous finding of fact "will not be scrutinized or reviewed by this Court "and an error of law . . . .will not be considered to be a sufficient ground for interference" which words do not relate to jurisdiction, but to the propriety of interference on certain grounds. I do not think the later portion of the passage regards an interference with an erroneous finding of fact or law as an act without jurisdiction. If it does so regard it I express a respectful dissent. An order without jurisdiction is a void order which has no existence in the eye of law and which every Court is bound to treat as a nullity however superior the Tribunal that passed it. It may be urged that even if the jurisdiction to set aside an order on any ground of fact, law or procedure existed there was no bar to the Court adopting a practice of not interfering except on certain well recognized grounds. But if the jurisdiction which Article 160 granted to the Supreme Court was not subject to any limitations can the Court by its practice create any limitation'? That would be legislation which is beyond the province of a Court. If this Court refused to consider grounds which uncle' the provision that created the appellate jurisdiction were legal grounds that would be a failure to exercise jurisdiction and failure to discharge its duty towards a litigant whom the law has given the right t appeal on those grounds. It should not be inferred from what I have said above that I regard all practices by which we refuse to entertain appeal on certain points as illegal. They are permissible, not on the basis that the jurisdiction of this Court to hear appeals can be limited to any grounds by the practice of Court but because, in cases where appeal lies by leave only, this Court has a discretion to grant or not to grant leave and there is nothing in the Constitution regulating the exercise of this discretion. While granting leave therefore we can confine the appeal to any grounds we regard proper. There is no bar to our doing that. This in my opinion is the only logical way in which the practice of this Court limiting the grounds of appeal in spite of absence of any limitation in the provision creating jurisdiction can be justified. But it is only in cases where appeal lies only by leave that this can be done and in cases where an appeal lies as of right and there is no limitation as to grounds in the relevant provision this Court, in my opinion, would have no jurisdiction to refuse to entertain a particular ground. Suppose a District Judge hearing a first appeal refuses to entertain a particular ground. Foy instance he says he will not question the determination of market value of property by the trial Court. His order will be set aside 7 not only in appeal but, quite easily, even in certiorari. The Supreme Court, while dealing with an appeal which lie; as of right will be committing a similar mistake if it refused to consider a particular ground. The party has a right to a decision of this Court on that point. Suppose the Legislature specifically men?tioned two matters which could constitute grounds for an appeal: If the appellate Court refused to consider one of the two grounds there will be a failure to exercise jurisdiction. When the Legisla?ture grants a right of appeal without limiting the grounds it amounts to saying that appeal will be on all grounds and a refusal of the appellate Court to consider a ground of appeal in such a case is like the refusal of Court to consider a ground specifically mentioned in the provision granting right of appeal. An appeal, it should be remembered, is the right of a party. That is what distinguishes it from a proceeding which is generally called a revision, and which too is a review of an order by a superior tribunal, but which is a power granted to the superior tribunal which it may exercise sou motu or on application. I now come to the merits of' this appeal. I am of the opinion that on the record the property in dispute is proved to be joint family property and the finding of the Custodian is vitiated by u the omission to take into consideration material evidence including a receipt of the year 1946 which is a receipt for payment in respect of barrage land and is in the name of Nanikram alone. I proceed to state my reasons for the finding. The first document of importance is the partition deed dated 20th May 1940, which records a partition between Harumal and the other three sons of Samandas. Admittedly the family was on that date a Hindu joint family. The question that arises in connection with this document is whether this was a partition by which only one brother separated and the other three remained joint or whether the other three also separated inter se. When one co?parcener separates from others there is no presumption as to whether the remaining members of the joint family remained joint or separated inter se and the question is to be decided on the facts of each particular case. The important fact in connection with the document with which we are dealing is that by it no share was granted to Mst. Poonjibai the mother of the co-partners and the widow of Samandas who was entitled on partition to a share equivalent to that of one of the brothers. This in my opinion is strong evidence of the fact that the other three brothers, that is, Bhamumal, Nanikram and Lilaram remained joint. Had there been a partition even between these three brothers there is no reason why Poonjibai should not have been allotted a share. There is no explanation offered on behalf of the respondents as to why, if there was a complete partition Mst. Poonjibal received no share except that the brothers may not be intending to give a share to the mother. But the presumption is of honest and bona fide conduct and we cannot assume in the absence of some evidence that the brothers were depriving the mother of her due share. From 1940 to 1942 the three brothers made four joint purchases which are evidenced by four registered sale deed. These documents are some indication of the fact that the family was at that time a joint family. It has been argued on behalf of the respondents that in these documents the word joint family" nowhere appear and these deeds are simple joint purchases in favour of the three brothers. In this connection there are two facts to which attention may be drawn. The first is that in the partition deed dated 20-5-1940 also the word "joint family" nowhere appears though admittedly this was a deed of partition between the members of the Hindu joint family. All that is said in this partition deed is that the land "is belonging to all our brothers jointly". The executants of this deed apparently regarded this as a sufficient statement of the fact that they constitute a joint Hindu family. The other fact to be mentioned is that the word mukhi invariably occurs against the name of Bhamumal who was next eldest after Harumal and who was on separation of Harumal entitled to become the karta. It was vehemently urged on behalf of the appellants before us that the word mukhi meant a karta. On behalf of the respondents it was alleged that mukhi only meant a leading person. In the appeals relating to land reforms cases which we have heard at Karachi and in which judgment has not yet been delivered a serious ques?tion arose as to how a karta was described in the Sindhi language and it was accepted by both parties that he was described as mukh. It may be that the word mukhi has not exactly the same connotation as mukh, but it may be that it has the same connota?tion. It has not been explained why it should be necessary to state that a person is the leading member of- the family if the family is not joint. I would, therefore, under the circumstances not make any adverse inference from the fact that the word "joint family" has not appeared in these sale deeds. On 21-2-1948 Bhamumal executed a general power of attorney in his capacity as the Manager of the Hindu joint family in favour of his younger brother. Nanikram in order that he may manage the joint lands. At the time when this power of attorney was executed there was no evacuee law yet in force in the Sind area the first Evacuee Ordinance having come into force on 20-10-1948. It has been contended on behalf of the respondents that the parties may have foreseen the evacuee law which was enacted after some time and may have deliberately shown Bhamumal as Manager of the Hindu joint family. One cannot, therefore, regard this power of attorney as a strong piece of evidence, but considering it along with other evidence it may have some probative force. The next item of evidence is the receipt (Exh. A-5) of the year 1946 obtained by Nanikram in his own name for payment of an instalment in respect of barrage lands. This is an important document for no explanation has been offered on behalf of the respondents as to why Nanikram should have obtained this receipt if he was not a co-sharer in the barrage lands. Now it is possible to argue that Bhamumal may have only been a benamidar in respect of the two shares of his brother and this may not have been joint family property, but if the three brothers had already separated there was no need for the purchase of shares in the name of Bhamumal alone. It has been argued that the rules for the purchase of barrage lands: permitted sale only to one person. But there was no difficulty in purchasing the land in three separate names. This receipt is indicative of the land being held not by Bhamumal alone, but for himself and others and along with other circumstances it is evidence of the existence of the Hindu joint family. Before I refer in this connection to the orders passed by the Custodian at different times in respect of this family I have to refer to the oral evidence produced in this case. Nanikram and Lilaram applicants in addition to making their own statements in the witness-box about the family being joint produced two respect-able zamindars of the locality Utoomal and Muhammad Yaqub Haji who stated that even after the separation of Harumal the family continued to be joint in residence as well as in estate. The mother of Nanikram and Lilaram was also said to be living with them. There is no rebuttal of this evidence. I now come to the orders passed by the Custodian which have been relied upon by the appellants as constituting a bar to the reconsideration of the question whether they constitute a joint family, but which though they do not in my opinion constitute such a bar would have evidential value for proof of the factum of joint family. The first order to be referred to is the one passed by the Custodian on the 7th March 1950 in the appeal of Nanikram and Lilaram who claimed that 1600 acres of agricultural land including 900 acres of barrage land belonged to a joint family consisting of Nanikram, Lilaram, Bhamumal and Poonjibai. Bhamumal it was said had gone to India and in respect of the income already accrued from Bhamumal's share of land the applicants were prepared to render accounts to the Custodian. On this application the Custodian f Evacuee property passed the following order on the 7th March 1950:?"The appellant Lilaram in Appeal No. 247 and Nanikram the appellant in Appeal No. 249 are along with their mother Poonjibai and their brother Bhamumal members of a Hindu joint family. They own in all about 1600 acres of agricultural land including 900 acres of Barrage land. Lilaram and Nanikram and their mother are proved to be bona fide residents of Pakistan and have been managing the lands themselves; It is admitted that Bhamumal is an evacuee. His share of 1/4th in the' joint family property is evacuee property. I refer the case of Nanikram, Lilaram and Mst. Poonjibai to Government under section 3 of Ordinance XV of 1949. The two appellants are willing to manage the evacuee share of the property for and on behalf of the Custodian and to render accounts. They agree also to the partitioning off the fourth share which is evacuee property which the Rehabilitation Authority can be permitted to do under section 20(2)(a), Ordinance XV of 1949." It would be observed that in this order joint family had been accepted and the case which was referred to the Government includes Poonjibai who if it was not a joint family would have no interest in the land. The Government having agreed to declare Nanikram, Lilaram and Poonjibai to be not evacuees the Custodian passed the following order on the 24th May 1950 : "In accordance with the decision of the Central Government I hold Nanikram, Lilaram sons and Poonjibai widow of Shamandas to be not evacuees I allow the appeal accordingly." On the 3rd March 1951, the Custodian appointed Nanikram and Lilaram to be managers of the share in the joint family property of Bhamumal the evacuee. In this order the Custodian stated that if the share of the evacuee exceeded one-half he was entitled under section 10 of Ordinance XV of 1949 to take over the joint family property, but in this case his share was only one-fourth. It would be observed that the share of Bhamumal `would be one-fourth only on the assumption that this was joint family property and Poonjibai was entitled to one-fourth share in it on partition. On the 13th of July 1954, Mr. Mansur Alam the successor-in-?office of Mr. Akbar Hussain, Custodian, who had passed the order has already been referred to, set aside the order of the ointment of Nanikram and Lilaram as managers and by the e order directed a notice to be issued for determining the property of Bhamumal. On 23rd of February, 1956, Mr. Mansur Alam again found the family to be a "joint and Bhamumal to have in it only a one-fourth share. However, he came to conclusion that 1028 acres of barrage land self-acquired property of Bhamumal. The following paragraph in his judgment relates to this matter : "The next point is regarding the 1028 acres of Barrage land which stood exclusively in the name of Bhamumal. I think here is considerable force in the contention of the Rehabilitation Authority that these lands were self-acquired property of Bhamumal and must be treated as his exclusive property. I t appears from the record that these lands stood in the exclusive name of Bhamumal at a time when other property stood in the name of his father and other brothers. It also appears that Bhamumal by himself executed a transfer of 900 acres of this land in favour of his brother Nanikram on 21-6-1949. These two facts conclusively establish that the property was dealt with by Bhamumal exclusively al 1 that the other members of the joint family had no concern with it. The 1028 acres of Barrage land, therefore, is held to belong to Bhamumal exclusively, his brothers or others having no interest in it, and is held to be evacuee property. It was this order of the Custodian which necessitated the submis?sion of an application for a declaration that the barrage lands were not evacuee property. While the above-mentioned orders do not constitute res Judicata because the question as to whether a joint family existed, was never judicially determined by the Custodian, they still: contain admissions by the Custodian to the existence of a joint family and they show a consistent course of conduct on the party of the Custodian recognising the joint family. In proceedings for a declaration as to the non-evacuee nature of a p,:rticular property the teal opposite-party is the Custodian himself for evacuee property vests in him though the law has made him a judge in his own cause and he can himself decide whether property is or not. Statements made by him, therefore, amount to admissions and thus considered they are valuable pieces of evidence for the Custodian may show that the admissions were based a mis?conception and the burden on him of explaining the admission may possibly be lighter than the burden on an ordinary litigant who had made an admission, but it cannot be urged that his admissions are without value as evidence. To sum up I find the following circumstances in support of the existence of a joint family : (i) The partition deed of 1940 in which no share was granted to Poonjibai though admittedly she was a member of the joint family. (ii) Four purchases from 1940 to 1942 in the name of three brothers. (iii) The receipt Exh. A-5 of 1946 relating to Barrage lands in the name of Nanikram alone.??????? (iv) The fact that the family was joint in mess appears proper too was held jointly. (v) The various orders of the Custodian in which the family had been found to be joint family and Sri which the share Bhamumal was accepted as one-fourth, The learned Custodian had while discussing the question c joint family not referred to receipt Exh. A-5 or to the evidential value of the admissions contained in the previous orders of the Custodian. His finding was thus vitiated by omission to consider material evidence so that even applying the tests mentioned in Zafrullah Muhammad Saeed v. The Election Petitions Tribunal his judgment Khan would be liable to be set aside. I would allow this appeal and custodian of grant a declaration that the property in dispute is not evacuee property. I would leave the parties to bear their own costs. ORDER OF THE COURT In accordance with the view of the majority we allow this appeal and setting aside the order of Custodian, remand the case him for a fresh decision. We leave the parties to bear their own costs. A. H.??????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.