P L D 1960 (W (PLP)

N. A. MAHMOOD, J.‑There are two writ petitions before this Court, (1) Writ Petition No. 59 of 1958 (unreported) (Mst. Wazir Begum and Mst. Ali Begum v. The Province of West Pakistan, through the Secretary, Revenue, Government of West Pakistan, Lahore and the Commissioner of Multan Division, Multan) and (2) Writ Petition No. 1413 of 1957 (Mst. Anis Zohra, minor, through Pir Khadim Hussain, her guardian v. The Government of West Pakistan, through tile Secretary, Revenue Department, and the Com missioner, Multan Division, Multan). This order will dispose of both the writ petitions. As regards the writ petition filed by Mst. Wazir Begum and Mst. Ali Begum, the relevant facts are as follows: One Pir Sayyed Asghir Ali Shah, the husband of Mst. Wazir Begum, petitioner No. 1, and the father of Mst. Ali Begum, petitioner No. 2, died in July 1948, leaving behind, 28 squares of land in the Montgomery District, out of which 16 squares of land are situate at Basti Ghulam Qadir in Tahsil Pakpattan and 12 squares of land at village Bibipur (Chak Jani Shah) in Tahsil Okara, besides some residential property in, the Montgomery District and at Lahore. The following pedigree‑table will facilitate an appreciation of the facts of this case :‑

Pir Asghir Ali Shah=Mst. Wazir Begum (widow) Petitioner No. 1. |

| | Khadim Hussain= Mst. Ali , Sayyed Haider Imam= Mst. Bismilla Begum Petitioner | Begum. No. 2. | Mst. Anis Zohra (minor daughter). After the death of Pir Asghir Ali Shah, the mutation of the land left by him in the Montgomery District was sanctioned in favour of the petitioners (Mst. Wazir Begum and Mst. Ali Begum) and they assumed control and management of the deceased's estate. Mst. Anis Zohra, the grand‑daughter of Pir Asghir Ali Shah, and her mother, Mst. Bismillah Begum, who is the sister of Khadim Hussain, the husband of Mst. Ali Begum petitioner, continued to live for some time with the petitioners, but latter both she and her mother started living with Khadim Hussain, who, in the meantime, had ceased being on good terms with petitioner No. 2, his wife, and petitioner No. 1, his mother‑in‑law. As the next friend of Mst. Anis Zohra, who also claimed as heir, Khadim Hussain applied to the Revenue authorities under section 16 of the Punjab Land Revenue Act for a revision of the 'mutation sanctioned in favour of the petitioners. The Financial Com missioner remanded the case for a fresh decision regarding the mutation of the deceased's property, but before any fresh decision was taken, the property in dispute was brought under the superintendence and control of the Court of Wards under Notification No. 601‑1155/8204‑WC, dated the 20th April 1956, issued by the Commissioner of Multan Division (copy Schedule 'A').

3. On learning of this notification, the petitioners moved the Revenue Minister of West Pakistan Government for the vacation of the order passed by the Commissioner of Multan Division and although the Government of West Pakistan, (res pondent No. 1) in the first instance, stayed the execution of the order detailed in the notification (copy schedule `A') the petitioners learnt that in their absence from their residence on the 22nd of August 1957 some officials of the Revenue Department had visited their place and intimated that the execution of the order for detailed in the notification (copy Schedule `A') had been resumed. Thereupon, the petitioners moved 'the High Court for the issue of an appropriate writ for quashing the impugned order made against them. This Petition No. 991 of 1957 was dismissed for default on the 29th of October, 1957. The peti tioners Mst. Wazir Begum and Mst. Ali Begum have again invo ked the writ jurisdiction of this Court for quashing the afore said order detailed in the notification (copy Schedule `A'), contending that the order is arbitrary inasmuch as it does not disclose any reason for depriving the petitioners of the control and management of their property, and has proceeded without any notice of any allegations as regards their incapacity or unfitness to manage their property having been issued to them. These petitioners further urge that no opportunity of a hearing was given to them and that the order regarding the resumption of control and management of the property in dispute by the Court of Wards is violative of Articles 5 and 11 of the Con stitution. They further allege that far from having mismanaged the estate in dispute, they had not only preserved it, but had effected some improvements on it. They ascribe the order regarding the assumption of superintendence and control of the property in dispute by the Court of Wards to the machinations of Khadim Husain because of his private feud with the peti tioners.

4. Respondents have joined issue with the petitioners. Mst. Anis 7,ohra, through Pir Khadim Hussain, made an applica tion (Civil Miscellaneous No. 275 of 1958) for being impleaded as a party to this Petition and Shabir Ahmad and Kaikaus, JJ., by their order dated the 7th February 1958, accepted her prayer. This application was made by Mst. Anis Zohra on the‑ground that she had already filed a writ petition (Writ Petition No. 1413 of 1957) in support of the Notification No. 601‑1155/8204‑C, dated the 9th April 1956, sought to be quashed by means of Writ Petition No. 59 of 1958. In her Writ Petition No 1413 of 1957, Mst. Anis Zohra alleged that she has 1/6th share in the property left by Pir Asghir Ali Shah', and that Mst. Wazir Begum and Mst. Ali Begum, (petitioners in Writ Petition No. 59 of 1958) had taken possession of the entire property left by him, and that as both of them were incapable of managing the property, the income of the properties and even the properties themselves were being dissipated by unscrupluous and dishonest servants, employers and agents of the two aforementioned ladies. It was further alleged in the petition that the Commissioner, Multan Division, assumed manage ment of the properties as Court of Wards after receiving reports from the local Officers of the Montgomery District on the basis of an inquiry conducted by them. This petitioner fur ther contended that the Government of ‑West Pakistan had no legal power under the amended and modified Court of Wards Act to pass any order releasing any property of which the Court of Wards had assumed management and possession. This posi tion is admitted on behalf of the Government and Writ Peti tion No. 1413 of 1957 is, therefore, dismissed. There shall, however, be no order as to costs.

5. Although no written statement has been filed by Mst. Anis Zohra, her counsel, Kh. Abdur Rahim Advocate, orally addressed us by way of supplementing the arguments of the counsel for the respondents. The respondent No: 2 (The Commis sioner, Multan Division) in this written statement has alleged that on the death of Pir Asghir Ali Shah serious disputes arose between his heirs, as the petitioners took possession of all the property left by Pir Asghir Ali Shah depriving Mst. Anis Zohra of the produce and income of‑ the estate and that the parties even filed civil, revenue and criminal cases against each other. On the 14th of March 1954, the Tahsildar of Pakpattan made a report to the effect that the management Was not satisfactory as the administration of the estate was being carried on by illiterate persons who were related to Mst. Wazir Begum and that the petitioners being pardhanashin ladies were not able to manage and look after the property in dis pute. Thereupon, the Sub‑Divisional Officer, Pakpattan, made a report to the effect that the agents employed by the peti tioners for the administration of the estate. were unscrapluous and undependable persons who could not be trusted to manage the estate in the best interest of the proprietors. He, therefore, recommended (in his report dated the 15th December 1955) that the property of Mst. Wazir Begum and others may be taken under the superintendence of the Court of Wards on the ground that being pardanashin ladies the petitioners were unable to manage their property which was scattered in two Tahsils. It is further contended that since it was represented on behalf of Mst. Anis Zohra and other collaterals that they were not receiv ing their due share of the income of the estate, the Deputy Commissioner, Montgomery, after proper inquiry recommended that the estate be placed under the superintendence of the Court of Wards (the Commissioner), which recommendation resulted in the notification in dispute (copy Schedule `A'). The res pondents contended that the petitioners are not entitled to in voke the writ jurisdiction of this Court as the action taken by respondent No. 2 was necessary, fair and just and that before the assumption of the estate by the Court of Wards, the Deputy Commissioner, Montgomery, conducted an inquiry in accordance with section 11 (1) of the Court of Wards Act through the Tahsildar and the Sub‑Divisional Officer, Pakpattan, and that it was after the Deputy Commissioner had satisfied himself that the resumption of control and superintendence by the Court of Wards was necessary that he made a recommendation to that effect, and the Commissioner as Court of Wards assumed control and superintendence of the aforesaid property under sec tion 5 (2) (a). It is further contended that in view of the abrogation of the Constitution, the violation of Articles 5 and 11 of the Constitution does not furnish. the petitioners with any cause of action.

6. The following provisions of the Court of Wards Act are relevant:‑

Section5(1)******************************************* "(2) When it appears to the, Court of Wards that any land holder is‑‑ (a) by reason of being a female ; or (b) *******************************************or (c) *******************************************or (d) ******************************************* incapable of managing or unfitted to manage his affairs, the Court of Wards may make an order directing that the pro perty of such land‑holder be placed under the superinten dence of the Court of Wards : " Section 11 :‑

(1) For the purpose of satisfying himself as to whether, in respect of any land‑holder the Court of Wards should be moved to make an order under section 6, or for the purpose of making any report which may be called for in connection with any application of a land‑holder under subsection (1) of section 5, the Deputy Commissioner may make such inquiry into the circumstances of such land‑holder as he may deem necessary, and, pending the taking of any such action may issue such orders for the temporary custody and protection of the person or property, or both of such land‑holder, as he thinks fit. (2) ******************************************* (3) ******************************************* (4) *******************************************

7. It is clear from the aforesaid two provisions of the Court of Wards Act that all that is necessary for the Court of Wards in taking over the superintendence and control of the property of a female land‑holder is to be satisfied after an inquiry, if at all considered necessary, that the female land holder is incapable of managing or unfitted to manage her affairs. There can be no manner of doubt that an inquiry was conducted, between them, by the Tahsildar, the Sub -Divisional Officer and the Deputy Commissioner of the Mont gomery District with regard to the affairs of the estate of Pir Asghir Ali Shah in the possession of Mst. Wazir Begum and Mst. Ali Begum petitioners. Indeed Wajid Ali Khan, the Mukhtar‑i‑Am of the petitioners, learning of this inquiry made a complaint on behalf of the petitioners to the Minister for Revenue, Punjab, Lahore, that the Revenue Officers of the Montgomery District, in collusion with the relatives of Mst. Anis Zohra, had prepared false records regarding the income from lands and the Gaddi of Pir Asghir Ali Shah for the purpose of ensuring that the estate is taken over by the Court of Wards under its superintendence and control. By this complaint Wajid Ali Khan, Mukhtar‑i‑Am asked for Muhammad Rashid, Tahsildar, and Muhammad Bakhsh, Kanungo, being prosecuted under section 218 of the Pakistan Penal Code after grant of sanction for their prosecution under section 197, Criminal Procedure Code. The counsel for the petitioner does not deny that an inquiry was instituted by the authorities of the Montgomery District, but his contention is that this inquiry was conducted behind the back of the petitioners and they were not provided with any opportunity to be heard. Although the provisions of section 5 and section 11 of the Court of Wards Act make it clear that it is not necessary that any show‑cause notice should be issued to the female land‑holders before the superintendence and, control of their property is assumed by the Court of Wards, it would be contrary to the principles of natural justice to deprive a person of the management of her estate before giving her an opportunity to show that she is capable of managing it. But it is incorrect to ay that in the present case the petitioners had no notice or were unaware that such an inquiry was being made. The very fact that their Mukhtar‑i‑Am made a complaint to the Revenue Minister against the Tahsildar and the Kanungo, who were engaged on this inquiry, shows that the fact of an inquiry having been conducted was known to the petitioners. It is significant that rather than substantiate the allegations made in his complaint, Wajid Ali Khan, the Mukhtar‑i‑Am of the peti tioners, took steps to dissociate himself from the inquiry institu ted on his complaint. In response to a notice to appear on the 20th of November 1954 before the Sub‑Divisional Officer, Pakpat tan, he submitted a medical certificate dated the 10th of December 1954, showing that he could not appear on account of kidney trouble and pneumonia. The file produced by the respondents shows that the case was adjourned to the 24th of December 1954, but on that day also another certificate was produced on be half of the Mukhtar‑i‑Am. Consequently, a report was made by the Sub‑Divisional Magistrate that the Mukhtar‑i‑Am was not appearing before him despite having been summoned a number of times and that he had been putting in medical certi ficates to avoid the attendance. He, therefore, inferred that the applicant was not keen to pursue her application and did not want to substantiate her allegations against the Revenue staff. In this report, which is dated the 18th January 1955, the Sub- Divisional Magistrate expressed the opinion that the figures as to the income of the Gaddi from various sources given by the Tahsildar and his staff were generally correct.

8. If the petitioners were really keen to present their case before the Sub‑Divisional Magistrate or the Deputy Commis sioner, they could very well have done so during the inquiry made on the complaint of their Mukhtiar, which arose out of the inquiry in connection with the proposal that the estate left by Pir Asghir Ali Shah be taken over by the Court of Wards. That the Mukhtar‑i‑Am deliberately and without valid excuse failed to appear in connection with the inquiry arising out of his complaint is evident from the first medical certificate dated the 10th of December 1954 that was submitted on his behalf. This certi ficate attests the fact that Wajid Ali Khan was admitted into the clinic of the Hakim on the 8th of December 1954. The Mukhtar‑i‑Am was notified that he had to appear in connection with his complaint on the 20th of November 1954. This certifi cate, therefore, does not account for his non‑appearance on the 20th of November 1954. The second certificate sent by Wajid Ali Khan reiterates that the Mukhtiar‑i‑Am was under the Hakim's treatment since 8th of December 1954. In view of the above, the inference that the Mukhtar‑i‑Am was deliberately avoiding his appearance in connection with the inquiry is irresistible. It cannot, therefore, be said that the enquiry preli minary to the issue of the notification (copy Schedule `A') was not within the knowledge of the petitioners. In substantiating his complaint the Mukhtar‑i‑Am, in a way, would have estab lished that the estate of Pir Asghir Ali Shah in the possession of the petitioners was not being mismanaged and the petitioners were not incapable or unfitted for the management of the estate. His failure to substantiate his Complaint shows that the report that the estate was being mismanaged and the inference drawn by the authorities of the district that the petitioners were incapable of managing the estate on account of being pardanashin ladies was perfectly legitimate.

9. It is not disputed that Mst. Anis Zohra alias Bhamo Sain, the grand‑daughter of Pir Asghir Ali Shah, is one of the heirs of Pir Asghir Ali Shah. It is significant that she actively supported the proceedings of the district authorities aimed at the estate being taken over by the Court of Wards, by making applications to the Deputy Commissioner, Montgomery, to the effect that the estate be taken over by the Court of Wards, and in doing so, she proved the charge of mismanagement brought against the petitioners.

10. Thus the action taken by the Commissioner as Court of Wards quite in accordance with the statutory requirements of the Punjab Court of Wards Act, under the relevant provisions whereof the Court of Wards was the sole judge of the neces sity, expediency and advisability of assuming control and superintendence of the estate in dispute. Nor was it under an obligation to find the facts in a judicial or a specially prescribed manner.

11. The other contention of the learned counsel for the' petitioners that the assumption of the control and superintendence of the estate by the Court of Wards without the petitioners' having moved for it is in violation of their fundamental right under Articles 5 and 11 of the late Constitution does not merit any serious notice in view of the fact that as a result of the abrogation of the Constitution the fundamental rights no longer subsist. Their Lordships of the Supreme Court in the judgment The State v. Dosso and other etc. (P L D 1958 S C (Pak.) 533, 541), clearly laid down :‑

"The so‑called fundamental rights which were described in Part II of the late Constitution were, therefore, no longer a part or the national legal order and neither the Supreme Court not the High Court has under the new Order the authority to issue any writ on the ground of the violation of any of the' fundamental rights. * * * * *"

12. The result is we are not satisfied that the petitioner Mst. Wazir Begum and Mst. Ali Begum have succeeded in showing that they are entitled to the issuance of any writ by this Court. Their petition is dismissed. However, in view of the fact that it is the estate, in which these petitioners on the one hand and Mst. Anis Zohra respondent on the other are equally interested, which is to be burdened with the costs if ordered, we make no order as to costs in both the petitions. A. H. Petition dismissed.