P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

(29th November 1956), I regret to differ. (1) This is a case in which the Custodian has reviewed and set aside the order of his predecessor after a lapse of more than six years, thereby setting up a dangerous precedent that there is to be no finality to the orders in the Custodian's Department, and that the litigating public have always to remain in fear of interference with their vested rights. Circumstances sanctioning such a course must indeed be strong and grave and the orders once passed finally cannot be lightly interfered with. I am of opinion that interference in this case was not at all justified. (2) Important facts relevant for the disposal of this petition must be stated in some detail:- The petitioner is the Joint Family Firm of Messrs Tarachand-Ghanshamdas, which has its head office at Calcutta and branch office at Karachi. It has many other branches also which are scattered all over India. The firm f was established long before partition and all its partners resid ed at Calcutta. The business of the firm at Karachi has always been carried Oil by managers and attorneys who have also been looking after the local properties of the firm. The firm started its business in partnership at Karachi as Commission Agents and Shroaffs in the year 1923, There were seven partners of the firm. They were all members of the Joint Hindu Poddar Family of Calcutta. Their names are shown below : (1) Keshabdev Ghanshamdas. (2) Srinivasdas Keshabdev. (3) Balkrishinlal Keshabdev. (4) Raghunath Prasad Radhakrishin. (5) Jankiprasad Radhakrishin. (6) Lakhsmanprasad Radhakrishin. (7) Hanumanprasad Radhakrishin. It is clear from above that Nos. 2 and 3 are the sons of No. 1. while Nos. 4 to 7 are brothers. On 19th February 1938, these seven partners appoint ed one Kanayalal Sukhdev Ghoalewalla as their manager and attorney. Pertinent passages from this Power-of-attorney are reproduced below ;- " . . by these presents for themselves and on behalf of the said firm nominate constitute and appoint Kanayalal Ghoalewalla son of Sukdeodas Ghoalewalla by caste Agar walla and residing at present at Karachi as the true and law ful Attorney and Agent of the said firm of Seth Tarachand Ghanshyamdas at Karachi . . . . and authorizing and empowering him to carry on conduct manage and super intend the management of the affairs and business of the said firm . . . . . . And we do hereby give and grant upto our said Attorney Kanayalal Ghoalewalla full power and authority to appoint and constitute any attorney or attorneys in his place on behalf of the said firm at Karachi . . . . And we do hereby give and grant upto our said Attorney Kanayalal Ghoalewalla full power and authority to appoint and constitute any attorney, or attorneys in his place on behalf of the said firm at Karachi . . . . And we do hereby agree to ratify confirm and allow all the acts and deeds of our said Attorney and his attorney or attorneys or his substitute or substitutes in or about the premises as our own acts and deeds." This power of attorney is a long one covering six typed pages. It is signed by all the seven partners of the Joint Hindu family named above. I have only cited the relevant portion from this deed. On 15th December 1944, a deed was executed between these seven partners on one hand and their Agent and Attorney Kanayalal on the other. Under this deed Kanayalal was made a working partner and he was allowed some share of profits plus a salary. It is necessary for me to reproduce pertinent passages from this deed :- The party of the eighth part (Kanayalal shall remain at Karachi incharge of business there and shall receive in addition to his share an allowance of Rs. 250 per month from the partnership firm which amount will be debited to the profit and loss account of the firm. The parties of the first to seventh parts have subscribed all the capital required and the party of the eighth part has not yet subscribed any . . . . . . Upon dissolution of the firm for any reason whatsoever the goodwill and all assets of the firm shall belong to the parties of the first seven parts and the party of the eighth party shall only be entitled to recover his dues in cash, . . . . . . " This deed is also signed by the seven original partners and the working partner Kanayalal. In pursuance of the authority conferred on him, Kanayalal executed a deed at Bombay on 5th April 1948 appointing the petitioner Shankarlal Budharam Sharma of Karachi to be the attorney of the Original Principals. This Kanayalal originally belongs to Calcutta while Shankarlal belongs to Pakistan. Pertinent passages from this deed read as follows :- " . . . . . Messrs. Tarachand Ghanshyamdas (herein after for brevity's sake called the Original Principals) by a Deed dated 19th February 1938 appointed me their attorney for themselves and on behalf of their said firm to do certain acts and things connected with the management and conduct of the business and affairs of the said firm at Karachi in the said Deed set forth including the power to appoint substitutes NOW KNOW YE THAT by virtue of such power and of all other powers enabling me hereunto I the said Kanayalal do hereby appoint Shankarlal Budharam Sharma of Karachi to be the attorney of the Original Princi pals for them and in their name or in the name of their said firm or in my name to do all or any of the acts matters and things relating to or concerning the management and superintendence . . . . . And I hereby Agree to ratify and confirm all and whatsoever the said Shankarlal Budha ram Sharma shall lawfully do or cause to be done by virtue hereof." This also is a long document covering full four typed pages. I have cited a very small portion of it which was relevant to the case. This deed was attested by the Registrar and Presidency Magistrate, Bombay, and also the High Commissioner for Pakistan in India as required by law, and it was duly attested by the High Commissioner on 6th December 1948. Under this deed the petitioner Shankarlal took the place of Kanayalal as the Manager and Attorney of the firm of Messrs. Tarachand Ghanshamdas at Karachi to all matters. . This power was subsequently confirmed by the original six partners of the joint Hindu family firm, on 7th February 1953. On 5th September 1949, this Shankarlal made an applica tion to the then Custodian (Akbar Hussain) under section 2(h) of Ordinance XVIII of 1948 for being approved as an authorised attorney for and on behalf of the said firm. He submitted all the relevant documents along with this petition and Mr. Akbar Hussain passed the following order on this petition on 21st March 1950. "The firm of Tarachand Ghanshamdas of Calcutta have a branch at Karachi where they carry on business in Cotton and other produce. It is proved that they have been doing business in Karachi since 1923. I am asked to approve the local manager Shankarlal Bodharam Sharma 'as an authorised person, as otherwise the firm would be liable to be treated as evacuee property on account of the fact that the partners of the firm belong to Calcutta where they reside. The firm having been established in Karachi long before the partition after which it has continued its business, I allow the application and accord approval in the management of the business and properties of the firm in Karachi as an authorised agent by Shankarlal Bodharam Sharma under subsection (9) of section 2 of Ordinance XV of 1949". After this order was passed by the Custodian, some Assis tant Custodian passed a contrary order on 14th October 1950, to the effect that the properties of the firm at Karachi should be treated as evacuee property. Shankarlal, the attorney and approved agent of the firm, filed an appeal under section 36 of Ordinance XV of 1949, against this order of the Assistant Custodian, and the same Custodian Mr. Akbar Hussain passed the following order on it on 11th December 1950 :- " The Assistant Custodian's report seems to have been made in ignorance of the order of this Court dated 21st March 1950, in which I approved the managership of Shankarlal Budharam Sharma under section 2 (9) of Ordi nance XV of 1949. The property must therefore be treated as non evacuee property. I order accordingly." Thereafter Shankarlal continued to manage the affairs of this firm in peace when suddenly a notice was issued to him on 8th June 1953 by the then Custodian (Mr. Justice Z. H. Lari). This notice reads as follows :- " According to our information the Registered Office of the firm Messrs. Tarachand Ghanshamdas is situated at Karachi and not at Calcutta as was presumed by the Ex Custodian. It is therefore necessary to review suo moto the order dated 11th December 1950, of the Custodian. You are hereby directed to appear on 11th June 1953 at 9 a.m. in the Chief Court Building to show cause why the above order should not be reviewed, and necessary order passed according to law. (2) It is hereby further directed that none of the pro perty, rights, interests, assets. monies, etc. belonging to the said firm shall be transferred or alienated till the dis posal of the case." On this notice, which was prepared by the office, Mr. Justice, Lari passed the following order "15 days time allowed to Mr. Ahsan counsel for the Administration to put up a proper application. Fix 25th June 1953." On 18th June 1953 the Additional Custodian (Administra tion) filed an application under section 36(5) of Ordinance XV of 1949, against Shankarlal, for review of the order of Mr. Akbar Hussain dated 21st March 1950. This application was filed on behalf of the Additional Custodian by Mr. Hafiz Ahsan Advocate for the applicant. This application reads as follows :- "Being aggrieved by the order dated 21st March 1950, passed by the Custodian Mr. Akbar Hussain in the case No. 1905 of 1950, Shankarlal Budharam under section 2 (h) of Ordinance XVIII of 1948 recognising the power of attorney in favour of the opponent and approving him as manager and authorised agent on behalf of the partners of the firm, Tarachand Ghanshamdas at Karachi under section 2 (9) of Ordinance XV of 1949, the applicant named above files review application against the said order under section 36 (5) of Ordinance XV of 1949, and submits inter alia the following grounds :- (a) That the firm Tarachand Ghanshamdas was registered at Karachi 'with the Registrar of Companies for Sind on 20th October 1943, under the Partnership Act 1932 and its principal place of business was at Bellosis Street, Karachi in the application'for registration. (b) That in the application for registration the residence of the partner, Kanayalal Ghoalewalla who was also the attorney of other partners was shown at Karachi. (c) That on 5th April 1948, as a result of partition he left Karachi and appointed- Shankarlal Bodharam Sharma as attorney. (d) That the aforesaid facts had never been brought into the knowledge of the learned Custodian at the time when he passed the order dated 21st March 1950, and thus a wrong order was obtained from him. (e) That there,had been no proper grounds for recognis ing the said power of attorney. On the grounds mentioned above it is prayed that the order dated 21st March 1950, passed by the learned Custodian Mr. Akbar Hussain, be set aside and the said firm declared evacuee property. (Sd.) M. H. AHSAN, Advocate, Karachi dated 18th June 1953. for the, applicant, Fresh notice was issued against Shankarlal and th notice must be reproduced here :- " Whereas a review application dated 18th June 1953, has been filed before the Hon'ble Custodian on behalf of the Additional Custodian (Administration), Karachi, for review of the order passed by the Custodian on 21st March 1950, giving approval in the name of Shankarlal Bodharam Sharma as an authorised agent for the business of the firm of Messrs. Tarachand Ghanshamdas on the grounds mentioned in the above said review application (copy enclosed) THE RES PONDENT is hereby informed to appear before the Hon'ble Custodian on 25th June 1953, at 9 a.m. in the Chief Court Building to show cause why the above said order should not be reviewed by Hon'ble the Custodian on the grounds mentioned in the enclosed application, You are hereby further informed to take notice that if you fail to appear before the Hon'ble Court, the case will be heard and decided ex parte." The proceedings dragged on at leisure and ultimately the present Custodian (Mansur Alam) passed the following order on the application for review filed by the Additional Custodian through his advocate Mr. Hafiz Ahsan. This order was passed on 20th May 1956. It must be reproduced here :- "In this case notice was issued by my predecessor Mr. Justice Lari, to show cause why the order of Mr. Akbar Hussain dated 21st March 1950, may not be reviewed. Mr. Iqbal Ahmad Ansari has appeared in response to the notice and has taken me through the relevant parts of the record. I have also heard the counsel for Administration and Rehabilitation. It is admitted on behalf of the respondents that all the partners of this Firm were and are residing in Bharat. In the certified copy of the Register of Firm one of the partners, Kanayalal Ghoalewala, is shown as resident of Karachi but it is admitted in the affidavit filed on behalf of respon dent that even this partner was a permanent resident of Calcutta. In view of this admission, the case of this Firm clearly comes within the ambit of the definition of Evacuee Property and it must be treated as evacuee. It appears that the order sought to be reviewed was obtained from my predecessor by suppression of material facts. It is now admitted before me that one of the partners, Seth Keshabdeo had died on 26th October 1949. The result of his death was that., the partnership Firm stood dissolved and on the respondent's own showing the Firm was not reconstituted until 1st November 1951: It is therefore obvious that at the time when my predecessors, Mr. Akbar Hussain passed the order, there was no partner ship Firm in existence in the eye of law, If there was no partnership Firm in existence at the time the Power-of Attorney produced for approval before Mr. Akbar Hussain could not be said to be of any validity inasmuch as there was no Firm in existence at the time to execute the Power. The approval of Power-of-Attorney by Mr. Akbar Hussain was, therefore, bad in law and must be set aside. I accordingly review the order of Mr. Akbar Hussain dated 21st March 1950, and set aside the approval of the Power-of-Attorney made by him with the result that all assets of- the partnership become evacuee property and shall vest in the Custodian. The Deputy Custodian shall take necessary steps for taking over the assets and rendition of account by the Manager in possession. He shall also make the immovable properties belonging to this Firm available for allotment by Rehabilitation Authority." The present petition for a writ of certiorari etc has been filed by Shankarlal in June 1956 challenging the above order of Mansur Alam on various grounds, which I will discuss hereafter. On behalf of respondent No. 3; a counter affidavit has been filed whereby it has been claimed that the order of Mr. Mansur Alam is perfectly legal and proper. Respondents 1 and 2 are represented by Mr. Riaz Ahmad advocate and he has also argued in support of the impugned order. It appears that one of the partners of the joint Family Firm viz., Keshabev died on 26th October 1949, and the working partner Kanayalal also formally retired from the firm on 1st January 1950. This is the main ground on which the order of Mr. Akbar Hussain is sought to be set aside and the order of Mr. Mansur Alam is being supported. It is alleged that the firm Tarachand Ghanshamdas stood dissolved on account of these contingencies and hence there was no firm in existence on 21st March 1950, when Mr. Akbar Hussain passed the order which has been reviewed : petitioner Shankarlal had therefore no authority to make the petition to Mr. Akbar Hussain and consequently he has no authority to file writ petition as well, because he- has not produced any other authority from the re-constituted firm. It may also be mentioned here that the firm was reconstituted on 1st November 1951 and was to come into operation with effect from 1st January 1951. In my opinion this view- has been advanced in utter disregard of law and facts. Mr. Riaz Ahmed, when he argued this point regarding the maintainability of the writ petition, did not seem to have bothered himself with the provisions of law. Section 42 of the Partnership Act reads as follows :- " 42 Subject to contract between the partners a firm is dissolved- (a) if constituted for a fixed term, by the expiry of that term ; (b) if constituted to carry out one or more adventures or undertakings, by the completion thereof ; (c) by the death of a partner ; and (d) by the adjudication of a partner as an insolvent." The words " Subject to contract between the partners" is an important provision and it has been completely lost sight of by the learned advocate. A firm is dissolved by the death of a partner but that dissolution is subject to contract between the partners. This contract may be either express or implied. The Partnership Act was passed in the year 1932. Before that there were some sections in .the Contract Act which dealt with partnership. In the case of Lala Ram Kumar v. Kishori Lal and others (A I R 1946 All. 259) it was held as follows :- " The words ' subject to the contract between the partners, at the beginning of section 42 do not mean that the contract must be express. Hence, a contract to conti nue the partnership after the death of a partner may be implied from the conduct of the parties. Though the contract must be one between the original partners, the conduct of the surviving partner and the heirs of the deceased partner after the death of partner may evidence an original contract that the partnership should not be dissolved on the death of a partner." In the case of Punjab and Sind Bank Ltd. v. Kishen Singh Ghulab Singh and others (A I R 1935 Lah. 350) it was held as follows :- " The dissolution of a firm on the death of one of partners is subject to contract between the parties and the intention to continue the business in partnership with the legal representative may be gathered from the conduct of the parties. These rulings were given after 1932 when the Act was passed, but even before 1932 this principle had been accepted by almost all the Courts. In the case of Sokkandha Vannimundar v. Sokkanadha Vannimundar and others (XXVIII Mad. 344) the same principle was accepted and so also in the case of Gokul Krishna Das and others v. Shashi Mukhi Dasi (13 I C 23) where it was held as follows :- " A partnership was commenced in 1883 between the husband of the plaintiff, and the defendants. The husband of the plaintiff died in 1887. Since his death, the business was conducted on the assumption that the plaintiff was a partner " Held, that the original partnership must be held to have been continued by common consent, with this difference that the plaintiff replaced her husband and this condition of things could be explained only on the hypothesis that the contract between the founders of the partnership was that it was not to be dissolved by the death of any of the partners." In the case of Raghumull v. Luchmondas (A J R 1917 Cal. 52) it was held as follows :- "Section

253. Cal. 10, Contract Act, which provides for the dissolution of a partnership on the death of a partner, must be read as qualified by the introductory words 'in the absence of any contract to the contrary." Clause 10 of section 253 has no applicability where the partners have by their conduct continued the partnership notwithstanding their death of one of them, in which case a contract to the contrary' may well be informed. The case of joint ownership in a trading business, created through the operation of Hindu Law, between the members of an undivided Hindu Family, does not stand on precisely the same footing as that of an ordinary partnership arising out of contract. To such a case section 253 (10) Contract Act, does not apply. The rights and liabilities of such co-partners cannot be determined by exclusive reference to the Contract Act, but must also be considered with regard to the general rules of Hindu Law, according to which the death of one of the coparceners does not dis solve a family partnership :" In the case of Haramohan Poddar and others v. Sudarson Poddar and others (A I R 1921 Cal. 538) it was held as follows: - "Clause 10 and Clause 7 of section 253 are subject to the important qualification embodied in the opening words of the section, namely, 'in the absence of any contract to the contrary'. Partners may accordingly agree that on the death of any of them, his nominee or legal representative shall be entitled to take its place. Whether in a particular case there has or has not been such an agreement, may be proved by an express declaration to that effect or may be determined from the conduct of the parties. These were the rulings before 1932 and it will be seen that the same principle was adopted even then. Aggarawala in his commentary on the Partnership Act, First Edition, at page 376; also says the same thing. Similar is the view which we find in Singhal's Law of Partnership in British India, Second Edition, at page 415 to

416. So it is very clear that a contract to continue the business of the firm after the death of a partner could be inferred from the conduct of the parties. In this case we find that Kashabdev died on 26th October 1949, and his two sons and four heirs, who were already part ners of the firm, carried on the business of the firm and are still the partners of the firm. Their names are mentioned in the new partnership deed executed in November 1951. A perusal of the said partnership deed would prove by itself that the partnership continued after the death of one partner. This new partnership was given effect from 1st January 1951. because the accounting year of the firm , begins on the first day of January and ends on the 31st of December, the same year. The petitioner has produced the income-tax certificates and they prove conclusively that the firm has been doing the same business as before and has been paying income-tax "right upto the present moment. Income-tax certificates have been produced for the years ending 31st December 1946, 1947, 1948, 1944, 1950 and 1951. Similar notices have also been produced for the years upto 1955 and 1956. It is therefore clear, beyond all doubt, that the firm was carrying on its business and the death of one partner Keshabdev did not bring about any dissolution of the firm. Then comes the question of the retirement of Kanayalal from the firm with effect from 1st January 1950. Section 32 of the Partnership Act is relevant in this case. He retired with the consent of all the other partners and thereafter the partnership continued to do its business as before. Sections 40 to 44 deal with the question now a firm can be dissolved, and nowhere it is stated that the firm will stand dissolved when one partner retires with the consent of the remaining partners In view of all these reasons. I have no doubt whatsoever that it was not correct to say that the firm was dissolved in any manner. It continued its business as before and from that we get a clear proof that the death of a partner was not to bring about the dissolution of the firm. It may also be men tioned here that this point was never put forth in the applica tion for review filed by the Additional Custodian through the advocate on 18th June 1953. The point seems to have been subsequently taken up before the Custodian. Since the partnership was in existence, Shankarlal's power-of-attorney subsisted and legally continued and therefore the order of Mr. Akbar Hussain, which has been review and set aside, was perfectly valid in law. It has also been stated by the learned Custodian in his order that since all the partners of the, firm were and are residing in Bharat, the property of the firm must be treated as evacuee property. I don't think this view can hold good since the authority of Shankarlal to manage the business of this firm was approved and sanctioned by the then Custodian Mr. Akbar Hussain. It was also urged by the learned advocate Mr. Riaz Ahmad that the firm was registered in Karachi and not in Calcutta and this fact was suppressed, from Mr, Akbar Hussain. This argument is fallacious and ignores the pro visions of section 69 (2) of the Partnership Act of 1932. The firm had to be registered here in Karachi in order to file suits or enforce rights on behalf of the firm, The registration certificate has been produced and it shows that it was registered in Karachi in October 1943, and the names of all the partners as required by section 69 (2) of the Partnership Act have been fully shown there. This argument has absolutely no force and must be rejected. Last but not the least, comes the important point that even the Custodian (Mansur Alam) had no jurisdiction to review the order of Mr. Akbar Hussain after a lapse of more than six years. Section 36 (5) of the Evacuee Property Ordinance, 1949, reads as follows :- " the Custodian or Additional Custodian may, within the prescribed period and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order." Now the rule framed by the Government prescribing the period under section 36 (5) reads as follows ;- " An application for review under subsection (5) of section 36 shall be made within thirty days of the order sought to be reviewed but the Custodian may review his own order suo moto at any time." According to me this rule is ultra vires of the statute. If we read subsection (4) of section 36 we find the difference between subsection (4) and subsection (5) very clearly. So far as the powers of revision were concerned, the statute permitted the Custodian to review the order of his subordi nate at any time of his own motion. But if any person had to make an application to him in revision, that had to be filed within the prescribed period which was fixed under the rules to be thirty days. Under subsection (5) the statute permitted the Custodian and the Additional Custodian to review the order only within the prescribed period. The Government by their rule-making power fixed thirty days for a private application and allowed the Custodian to review the order suo moto without any bar of time. This was ultra vires. In this case, originally on 8th June 1953, the then Custodian (Mr. Justice Z. H. Lari) was approached to take action suo moto. This he did not take and asked the advocate for the Administration to file a proper application, Thereafter; on 18th June 1953, the Additional Custodian filed a regular application for review through an advocate. This must be considered also as a private application. It cannot be said that the Custodian had taken action suo moto ; he was taking action on the application of the Additional Custodian filed through an advocate. The fresh notice issued to Shankarlal also makes the whole position clear. Therefore the Custodian had no authority to review the order in any case whether on the application or suo moto beyond a period of thirty days which expired on 20th April 1950. This order could not be reviewed and set aside in May 1956. Apart from this, the powers of review must be confined within the ambit of Order XLVII, rule 1, Civil P. C. A Court in the exercise of its jurisdiction in review, cannot assume the same powers as it has in appeal. "Review" must be considered in its ordinary legal sense in which it is used and intended even in the Ordinance itself. Section 36 makes provision for appeal, for revision and for review. These three powers must be considered distinctly and a Court in review cannot possibly exercise the powers of appeal. On that ground too the order of Mr. Mansur Alam setting aside the order of Mr. A kbar Hussain must be quashed. In view of all these reasons I find in this case absence a _s well as excess of jurisdiction, and an error apparent on the face of the record. I therefore allow the petition and direct a writ t of certiorari to issue quashing the order of the Custodian (Mansur Alam) passed by him on 20th May 1956. I would also issue a direction to respondents 2 and 3 not to interfere in any manner with the management of the properties of the firm as well as the business of this firm by Shankarlal. I would further direct the respondents 2 and 3 to bear the costs of the petitioner. MUNSHT, J. (29th November 1956)-Shankarlal Budharam Sharmamade an application before the Custodian (Mr. Akbar Hussain) for declaring him as an authorised agent of the firm of Messrs. Tarachand Ghanshamdas. The learned Custodian, by his order, dated 21st March 1950, granted this application. Since then he has been managing the property and the business of the firm. Some time after the above order, the Assistant Custodian ordered that the property of the firm should be treated as evacuee property. Against this order, the firm went in appeal and the learned Custodian by his order, dated 11th December 1950, set aside the order of the Assistant Custodian and declared the property as non- evacuee. Then, our brother Lari, J. in his capacity as Custodian, issued a notice to the petitioner to show cause why the order of Mr. Akbar Hussain, dated 21st March 1950 should not be reviewed. He was later succeeded by Mr. Mansur Alain, who, by his order, dated 20th May 1956, reviewed the order of Mr. Akbar Hussain and declared the properties of the petitioner as evacuee properties. It is against this order the petition has been filed, the grounds being that it is ultra vires, malafide, illegal and without jurisdiction. The order of Mr. Mansur Alam is based mainly on two grounds (1) that the partners of the firm were and are residing in Bharat and hence the properties of the firm came within the ambit of the definition of evacuee property (2) that the order was obtained by suppression of facts, namely, that the petitioner knew that the power of attorney on the basis of which the order was obtained from Mr. Akbar Hussain, was not in force, as one of the partners, namely Keshabdeo had died on 26th October 1949, and consequently the partnership stood dissolved on that day, and that being so there was no firm in existence in the year 1950 when the approval of the power of attorney was sought and obtained from Mr. Akbar Hussain. We have heard the learned counsel on either side. Mr. Brohi for the petitioners has denied that the order of approval of authority was obtained by suppression of facts. He also contends that Mr. Mansur Alam has no jurisdiction to review the order of his predecessor particularly after such a long time. He says that he had been served with two notices one stating that the proceedings were being taken suo moto, and the other stating that they were being taken on the application of the Additional Custodian. He therefore argues that the grounds on the basis of which the first notice was issued have been abandoned and therefore Mr. Mansur Alam acted without jurisdiction or against the principle of natural justice in deciding the matter on the basis of the grounds mentioned in the first notice. Mr. Riaz Ahmad for the respondent has opposed this petition. He contends that the petition is not maintainable, as Shankarlal Budharam Sharma who has filed it on behalf of the firm, has no valid authority to do so, as one of the partners having died in the year 1949, and another, namely Kanayalal Goalewalla having retired in the year 1950, the firm stood dissolved. The petitioners have stated that the firm was reconstituted on 1st November 1951, but Mr. Riaz Ahmad contends that Shankarlal Budharam Sharma has not produced any power of attorney executed in his favour by the reconstituted firm, and therefore according to Mr. Riaz Ahmad, he cannot file this petition, he having no power to do so, and that it should be dismissed on that account. There is considerable force in this contention of Mr. Riaz Ahmad, and I would dismiss the petition on this short point. The firm which had executed the power of attorney in favour of Shankarlal Budharam Sharma no more exists. It is not a Joint Hindu Family partnership, as Kanayalal, who was one of the partners did not belong to the family. And there is no express contract nor there appears to be any implied contract to continue the partnership in the event of death or retirement of a partner. In fact the re-constitution of the partnership would run counter to a contract of this nature. It therefore stood dissolved on account of death of one partner and the retirement of another. Therefore the power of attorney ceased to be in force on the day the firm was dissolved. Mr. Shankarlal Budharam Sharma has produced no power of attorney executed by the reconstituted firm. The petition which has been filed in a representative capacity by Shankarlal Budharam Sharma therefore cannot possibly be entertained as he holds no power of attorney much less an approved power from the firm which he claims to represent. The petition therefore is not maintainable, and must be dis missed on this ground. But, even otherwise, now that it has become clear that on account of the death of one partner and the retirement of another, and the absence of any person holding approved power of attorney to manage the properties of the firm, the latter have become evacuee properties and hence it is always open to the Custodian to take possession of them. Issue of writ therefore will be pointless as it will serve no purpose. It is therefore not necessary to go into the question whether or not the order of approval of authority was obtained from Mr. Akbar Hussain by suppressing the fact that the firm was not in existence on account of the death of one partner and retire ment of another. As for the contention of Mr. Brohi that Mr. Mansur Alam, having served him with' notice on the application of the Additional Custodian should be deemed to have abandoned the grounds on which the first notice was issued, Mr. Riaz Ahmad argued that there is nothing on record to show that the grounds on the basis of which the first notice was issued had been abandoned. His case is that the second notice which was issued on the basis of the application of the Additional Custodian, was issued on the grounds which are in addition to those on which the first notice was issued. Mr. Brohi further contended that some of the grounds on which the order is based, were not stated in the notice issued to him by Mr. Mansur Alam. According to me there is no substance in this contention either. There is no provision in .the Act requiring that the notices should contain all the grounds. Moreover, in this particular case, the grounds Near been furnished by the petitioners them selves, as is clear from the affidavits filed by them, which show that one of the partners namely, Keshabdeov had died in the year 1949, and another partner, namely Kanayalal Gohalewall had retired on 1st January 1950. Besides, the Custodian is not barred from taking into consideration new grounds before deciding the matter. All that is necessary in that case is, that decision should be taken after hear ing the parties. In this particular case, as said above, it is the case of the petitioners themselves that one of the partners of the firm had died and another retired. For these reasons I dismiss the petition with costs. CONSTANTINE, J.

The facts of this case are that a firm of seven members, Keshabdeo and his two sons and the four sons of one Radhakisson started business in partner ship in the year 1923. This firm was registered in Karachi, but the members of this firm, at all material dates, have lived in India, where also the firm carried on business. In 1938 the seven partners themselves and on behalf of the firm appointed Kanayalal Agarwalla as Attorney of the firm and gave him power to appoint any Attorney on behalf of the firm at Karachi, and further agreed to ratify all acts of Kanayalal and his Attorneys as their own acts and deeds. In 1944 Kanayalal was made a working partner. Kanayalal had lived in Karachi, but he left Karachi before the 1st of March 1947. On 5th April 1948 he appointed the petitioner Shankarlal as Attorney of the original Principals. On 5th September 1949 Shankarlal applied to the Cus todian under section 2 (h) of Ordinance XVIII of 1948 for approval as an authorised attorney for and on behalf of the firm. The Custodian (Mr. Akbar Hussain) passed an order on 21st March 1950 approving Shankarlal as an authorised agent of the firm in Karachi. He said that the firm Tarachand Ghanshamdas at Calcutta had a branch at Karachi and that it was proved that they had been doing business at Karachi since 1923, and he gave his order on the ground that the firm had been established in Karachi long before the partition, after which it had continued its business. Mr. Akbar Hussain on 11th December 1950 set aside the order of some Assistant Custodian and directed that in view of his previous order the property should be treated as non-evacuee property. Thereafter a notice was issued on 8th June 1953 by the Custodian (Mr. Justice Lari) on the ground that the registered office was situate at Karachi and not at Calcutta. Mr. Justice Lari then ordered that fifteen days time be allowed to Mr. Ahsan Counsel for the Administration to put up a proper application. An application was filed on 18th June 1953 by the Additional Custodian (Administration) for review of Mr. Akbar Hussain's order of the 21st March 1950. The grounds in that application have not been pursued further, but in reply to the notice incor porating these grounds Shankarlal filed an affidavit and attached to it a Partnership Deed of 1951. In the last paragraph of this affidavit it was stated " That as Seth Kashabdeo, another partner of the firm, died on 26th October 1949, so the firm has been re-constituted and a new partnership deed, dated the 1st day of November 1951, has been executed by the other remaining six partners. The said partnership took effect from 1st January 1950. A copy of the said deed of partnership is attached ". Thereupon, the learned Custodian (Mr. Mansur Alam) passed an order on 20th May 1956. The relevant portion of that order is as follows :- " It appears that the order sought to be reviewed was obtained from my predecessor by supperssion of material facts. It is now admitted before me that one of the partners, Seth Keshabdeo had died on 26th October 1949. The result of his death was that the partnership firm stood dissolved and on the respondent's own showing the firm was not re-constituted until 1st November 1951. It is therefore obvious that at the time when my predecessor, Mr. Akbar Hussain passed the order, there was no partnership firm in existence in the eye of law. If there was no partnership firm in existence at the time the Power of Attorney produced for approval before Mr. Akbar Hussain could not be said to be of any validity in asmuch as there was no firm in existence at the time to execute the power. The approval of Power of Attorney of Mr. Akbar Hussain was, therefore, bad in law and must be set aside ". Thereupon a writ of certiorari was supplied for by Shankarlal. My learned brethran Muhammad Bakhsh, J. and Munshi, J. have differed and the matter has thus come before me under the Letters Patent. Munshi, J. held that since Shankarlal Budharam had not produced a Power of Attorney executed in his favour by the re-constituted firm he could not file a petition. This point was not mentioned by Muhammad Bakhsh, J., but must obviously be a point of difference since if effect were given to Munshi. J's view the writ should have been dismissed in limine. Upon this point all that it is necessary to say is that a Power of Attorney executed by the firm as at present constituted dated 7th February 1953 has been allowed by me to be produced and has been filed at Exh. E, and in so far as this objection relates merely to the authority of Shankarlal to present a petition on behalf of the firm, I think the point must be decided against Munshi, J's view. Munshi, J. than held that it was not necessary to go into the question whether or not the order of approval of authority was obtained from Mr. Akbar Hussain by sup pressing the fact that, the firm was not in existence on account of the death of one partner and retirement of another, but he held that the firm stood dissolved on account of the death of one partner and the retirement of another. Muhammad Bakhsh. J. on the contrary, held that the firm had not been dissolved by the death of Keshabdeo. He pointed out that section 42 of the Partner ship Act states that subject to contract between the partners a firm is dissolved by the death of a partner and that such a contract may be either express or implied. While Munshi, J. had held that there was no express contract and no appearance of any implied contract, Muhammad Bakhsh, J. came to the decision that the death of Keshabdeo did not bring about a dissolution of the firm. There is therefore a point of difference between my learned brothers as to whether the firm was dissolved on the death of Keshabdeo. Muhammad Bakhsh, J. held that the review proceedings were barred by limitation. Upon this point Munshi, J. expressed no opinion, but since in the view of Muhammad Bakhsh, J. the Custodian had no jurisdiction to entertain re view proceedings, it is clear that Munshi, J. differed upon this point, otherwise the petition would have been allowed. Dealing first with the point of limitation, it is to be observed that Muhammad Bakhsh, J's view was that the Cus todian had no authority to review the order, whether on the application or suo moto, beyond a period of thirty days which expired on 20th April 1950, and so far as the view regarding limitation applicable to review suo moto is concerned it is contrary to the decision in Sahibrai's case (P L D 1957 S C (Pak.) 63). I must respectfully disagree with the learned Judge. Furthermore, since the " application" is made at the direction of the Custodian by the counsel of his Department, it appears to me that substantially the Custodian was acting suo moto. The main contention before me has been regarding the dis solution of the firm, and whether upon this matter there is an error apparent on the face of the record in the Custodian's order of 20th May 1956. My learned brethren have not observed the requirements of the Letters Patent which require them to state the point of difference. One point of difference was whether in fact there was or was not an implied contract : but Muhammad Bakhsh, J. in beginning to discuss this point stated that the view of the Custodian has been advanced in utter disregard of law and facts, and he stated that the Advocate (who was upholding the Custodian's order) had completely lost sight of the words of section 42 of the Partnership Act " Subject to contract between the parties ". . This therefore raised the view namely that the Custodian overlooked this provision of law. Therefore I think that a further point of difference was whether the Custodian misdirected himself as to the law in omitting to consider the question of implied contract. Mr. Riaz Ahmad contended that the dissolution of the firm was placed beyond question by the new Partnership Deed of 1951. This is headed :- "Deed of Partnership : Karachi (from 1st January 1950)". It set out the six parties viz., the sons of Keshabdeo and the sons of Radhakissen, all Poddars and all Agarwallas by caste. It then recited that they together with Keshabdeo and Kanayalal had carried on business in partnership under the deed of 15th December 1944. It was recited that Keshabdeo died on 26th October 1949 leaving his two sons as his only heirs and legal representatives and that these two sons had succeeded to the estate of the deceased in equal-shares by effecting partition in the estate of the deceased, and that Kanayalal ceased to be a partner from 1st January 1950. The deed then recited. "And whereas upon the death of the said Seth Keshabdeo Poddar and also upon Sri Kanayalal's ceasing to be a partner as aforesaid, the partnership stated above stands dissolved, devolving the share of the said Sri Kanayalal equally on the parties hereof of the six parts. And whereas it has become necessary that the terms, conditions and stipulations of the partnership between the parties aforesaid so constituted should be put in writing for various good causes. Now this Indenture Witnesseth that the parties of the six parts do hereby agree to continue the partnership upon and subject to the following terms, conditions and stipulations expressed in the following articles. (1) That this partnership be deemed to have been reconstituted on the 1st day of January 1950 and shall continue un less determined by the parties by mutual consent ". The remaining articles are not of importance for our purpose except that there was a provision that the death of any partner would not work the dissolution of the firm. Mr. Riaz Ahmad laid emphasis upon the fact that the recital stated " The partnership stated above stands dis solved".' On the other hand, it is to be noted that the deed had earlier stated that the two sons of Keshabdeo succeeded to the shares of the deceased in the partnership and that the re-constitution of the firm dates back only to the retirement of Kanayalal and not to the death of Keshabdeo, though it is true that both Keshabdeo's death and Kanayalal's retirement are mentioned as reasons for dissolution. It is also to be noted that the parties agreed to continue the partnership and the words " continue" indicates that the partnership had already been in existence and is therefore inconsistent with the dissolution. This deed and the affidavit of Shankarlal above-quoted were the chief materials before Mr. Mansur Alam bearing directly upon the question whether dissolution had in fact occurred or had not occurred. The other materials before him were another affidavit of Shankarlal, dated 12th December 1953 which did not carry the matter further, the earlier partner ship Deed of 1944 and the Power of Attorney executed by Kanayalal on 5th April 1948. One further circumstance appears that the partners of the firm except Kanayalal appear to be related since their family name is Poddar. Muhammad Bakhsh, J. showed authorities that implied contract excluding dissolution by death of a partner may, be inferred from the circumstances of the case. This doctrine was applied by the Privy Council in 1945 P. C.

71. The Fresh Partnership Deed in my opinion is ambiguous, but taking into consideration the. facts arising from the record that the business continued .to function, that the capitalist members of the firm were presumably members of one family and were expressly entitled vis-a-vis the working partner Kanayalal to the goodwill and assets of the firm and that in the 1944 agreement which admitted Kanayalal to the partnership it was provided that the agreement might be terminated by either party on giving three months' notice, and after the period of the notice the remaining partners may continue the business upon re-constituting the firm, I think that there was a considerable likelihood that there was an implied agreement that the firm should not be dis solved upon the death of any partner. The learned Cus todian, however, treated the matter as if the law was that the dissolution of the firm was automatically worked by the death of a partner and that nothing further was to be considered. In my opinion the Materials on the record were such that the question whether in fact there was an implied contract should have been considered by the Custodian. In omitting to consider this question the Custodian misdirected himself as to the law. As regards the difference of opinion whether in fact there had been a dissolution or had not been a dissolution I consider that the probabilities are that dissolution of the firm had not occurred, but in so far as such a finding is one of fact as well as of law this opinion is not binding on the Custodian : that is to say if the Custodian without misdirecting himself as to the law reaches a contrary conclusion based upon evidence, we are not at liberty to set aside that conclusion, in proceedings upon a petition for a writ of certiorari. A point was raised by the petitioners that the Power of Attorney had been granted by Kanayalal and that his death worked the cancellation of the Power given by him on 5th April 1948 to Shankarlal. This point was not considered by the Custodian or my learned brethren and does not arise before me. I therefore quash the order of the Custodian (Mr. Mansur Alam), dated 20th May 1956. The petitioners' costs of this petition should be borne by the Custodian. A. H. Order quashed.