1968 SCM R 593 (PLP)

CORNELIUS, C.J.-- In this appeal by special leave an :order of the Evacuee Property Inquiries Tribunal appointed under section 43-A of the Pakistan (Administration of Evacuee Property) Act, 1957, is called in question. The property in dispute is 1/3rd share in a large agricultural estate. An Assistant Custodian by order dated the 7th September 1953, had decided that this 1/3rd share was evacuee property as it was owned by Hindus who had emigrated to India at the time of the Partition. In 1956, another Assistant Custodian reversed that order in a proceeding under section 18 of the Act, and held that the emigrant Hindus had no interest in the estate at the time when they emigrated. A revision was moved before the Custodian on behalf of the State and was dismissed on the 9th December 1957. Subsequently, the Central Government moved the Evacuee Property Inquiries Tribunal and after a hearing in which all parties resident in Pakistan were represented, the Tribunal came to the conclusion that the order of the Assistant custodian dated the 31st March 1956, was totally without foundation. Leave was granted to the Muslim owners in the estate to appeal against the Tribunal's order: We have heard Mr. Abdus Sattar Pirzada in support of the appeal and Mr. Sayeed A. Sheikh has replied on behalf of the Rehabilitation Commissioner. The estate has a long history of litigation, and many of the salient facts appear with clarity from the judgment of a Division Bench of the Sind Chief Court in the case of Bilawal and others v. Glaninal and others (10 SLR 58). In 1889 Jamin in the capacity of full owner of a part of the land now included in the estate entered into an agreement with two Hindus, Badal and Teju, predecessors in-interest of the aforesaid Hindu emigrants, which constituted a partnership for the exploitation of the land covered by the agreement. Jamin stated in clear terms thatehe took Badal and Teju as partners with himself having 1/3rd share in the land, the remaining 2 shares being retained by himself. The Hindus were to- advance whatever money was required for cultivation without interest, and Jamin was to be responsible for the cultivation and was to sell the produce to the Hindu partners at a favourable rate. The net profit was to be divided between the partners in the share of 2/3rd to Jamin and 1/3rd to the Hindus. Later in May 1891, this agreement was superseded by another agreement which is said to cover the whole of the land now forming the estate. In this fresh agreement, the Muslim parties were Jamin and Daud whose interests inter se were 2/3rd to Jamin and 1/3rd to Daud. It appears that Daud had in the interim acquired an interest in the estate. By the new deed, Jamin and. Daud made Badal and Teju third-share partners with themselves. The terms as to the financing of cultivation were varied slightly, but the net profit was to be divided as before, i.e. the Hindus were to get 1/3rd share. The suit which eventually came before the Sind Chief Court was instituted in 1913 by the successors-in-interest of Teju and Badal claiming partition of the land and possession of their 1/3rd. The suit had been decreed, but, on appeal the learned Judges of the Sind Chief Court held that the suit was "altogether misconceived," and that it should have been one for dissolution of partnership or for accounts of a dissolved partner ship. It was held that the Hindus bad "an equitable right that the immovable property which forms one of the partnership assets be divided; but they are not entitled to have the item on the credit side only of their account taken into consideration.; they must put on the other side their liability to find Rs. 2,000 every year for an indefinite number of months without interest and a further indefinite sum at 12 per cent." It was added that "it is at least possible, even probable, that after the capitalised value of this liability has been debited against them in their account with the partnership there will be found nothing due to them." On the finding that the case was misconceived the appeal was allowed and the suit was dismissed. This was in 1916. Almost immediately after, the Hindus filed a fresh suit for dissolution of partnership, settle ment of accounts, sale of the partnership property and settlement of dues, and for division of any balance amongst the parties according to their shares. With the plaint as attached a "list of joint property" which included a detailed description of lands, which include the land now in suit. This suit finally ended in a compromise incorporated in a decree of the 21st January 1939. It was declared that the plaintiffs, namely, the Hindu parties, were to get 1g3rd share of the land from the 21st January 1939, and would have the right to obtain possession of their share by partition upon application. As a matter of amounting the Hindus were found liable to pay Rs. 9,000 to the Muslim partners. The latter were in possession of all the land, and the decree declared that they were to hold the Hindus' share of the land in mortgage from the Hindu partners for payment of the amount of Rs. 9,000 with running interest at 6 per cent. Thereon. It appears possible that thereafter a partition of the land was carried out by the Collector, for an admission to that effect was made in suit No, 89 of 1947 brought by Mst. Amnat and Mst, Maryam, daughters of the aforesaid Jamin, in a plaint filed by them to obtain partition of their share of the land as by this time they claimed to be the sole survivors from among the heirs of Jamin. This suit was decreed by the Subordinate Judge in respect of the 2/3rds share in the land by a very short judgment which contains no proper examination of the many questions arising therein. The Hindus had been joined as parties but were unrepresented, as they had apparently emigrated. Another suit had been filed in 1946 by the Hindus claiming mesne profits in the land from the year 1942 until the date of snit, viz., the 8th November 1946. This was dismissed. The Assistant Custodian in his order of the 31st March 1956, had held that the effect of the decree obtained by Mst. Amnat and Mst. Maryam was to extinguish all rights of the Hindus in the land and a similar conclusion was drawn from the dismissal of the suit brought by the Hindus Tor mesne profits. The Tribunal found that both these conclusions were totally unfounded. The decision in the suit for mesne profits could have no bearing on the question of title. The order of the Tribunal shows that the final decree for partition in the aforementioned suit of 1916 was drawn up in June 1940, and in March 1947, when by operation of law the evacuee interest became vested in the Custodian, the decree was still fully effective since 12 years had not passed from the date when it was passed. As regards the decree awarded to Mst. Amnat and Mst. Maryam the view of the Tribunal was that it had no effect on the decree passed on the 21st January 1939, in the suit of 1916, Further, it was held that the decree had no effect as against the Hindu evacuees since it was passed in 1948, by virtue of section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957. Mr, Abdus Sattar Piizada for the appellants attempted to argue that the compromise decree of the 21st January 1939, did not have the effect of creating title in favour of the Hindu plaintiffs in the land in question, and in the alternative that if such title was created, then the decree was ineffective to achieve this Purpose, because it had not been registered. The argument is without force. The decision of the Sind Chief Court makes it clear that from the outset, i.e., from 1889 and 1891 the Hindu parties had, an equitable title In the land to the extent of 1/3rd and they were entitled, in any settlement of partnershipl accounts, to have the value of such share placed to their credial In any division of property following dissolution of the partnership they would be entitled to claim possession of that 1/3rd share, provided that it was, not liquidated on account of debits raised against them in the accounting. Such a dissolution did indeed take place and is recorded in the compromise deed of the 21st January 1939, which raised a debit of Rs. 9,000 against the Hindus, but at the same time made this debt an encumbrance upon I/3rd of the land which was declared to be their property, to be held in the mortgage by the Muslim partners until the debt was paid. There was thus by virtue of the compromise decree, creation of separate right, title and interest in the property to the extent of 1/3rd in favour of the HiMus, and this relief was within the terms of the suit which had been brought by the Hindus, in 1916. Therefore, it seems clear that the creation of title by the compromise decree was effective without the necessity of registration, being within the reliefs claimed in the suit. Mr. Abdus Satter Pirzada raised the objection that the compromise was hot binding on Mst. Amnat and Mst. Maryam, because although they were parties to the suit the compromise was not assented to on their behalf by an authorised person. The Tribunal had found against the Muslim parties on this question, taking the view that Mst. Amnat had given power-of- attorney to Mr. Tek Chand who appeared as a pleader in the suit and as for Mst, Maryam, although no power-ofattorney by her was traceable on the record, it would have to be presumed that she waa properly represented by Mr. Tek Chand. It was mentioned also that the compromise was signed by Bilawal, the elder brother of the two ladies. On examination of the record of the suit it is shown that the alleged power-of-attorney signed by Ms:. Amnat in favour of Mr. Tek Chand was in fact signed by a different lady of the same name. It seems to usehowever, that it is immaterial to the decision that 1/3rd share of the land was owned by the Hindu evacuees, whether Mst. Amnat and Mst. Maryam consented to the compromise. The share which they claimed was that of Jamin and the proceedings in the earlier suit .of 1913 as well as the compromise decree of 1916 stow with sufficient clarity that the interest of the Hindu partners existed from the time of the original agreements, and from that time onwards, the interest of Jamin and Daud had been limited to a 2/3rd share in the land, and it was out of this share that the two ladies could claim satisfaction. This 2/3rds share is, in no way, affected by, the order made by the Tribunal. Out of this /3rds share the share of Jamin was 2/3rds and the share of Daud was 1/3rd. The present appellants claimed as successors-in interest to these two persons, and Mst. Amnat and Mst. Maryam being included among the appellants their right to the share of the Jamin would appear to be perfectly safe. The decision given by the Tribunal appears to as to be correct in all respects, and we accordingly dismiss this appeal, but in view of the difficulty of the questions arising we leave the parties to bear their own costs. Appeal dismissed.