1990 PLP 725 (MLD)

Developing his argument, he stated that neither the claim was bogus nor Mst. Jummi obtained the allotment in excess of the claim of Kapoor. She did not make any misrepresentation nor committed any fraud. On the strength of this argument it was asserted that neither section 10 nor section 11 of the Displaced Persons (Land Settlement) Act were attracted. Therefore, the proceedings before the Settlement Authorities were misconceived and totally untenable. (ii) Secondly it was urged that Mst. Jummi the widow of Kapoor being the only legal heir was entitled on the principle of return to the entire legacy of Kapoor, therefore, there was no case of any excess allotment or a fraudulent allotment. (iii) Lastly it was urged that this application was in fact given by Ghulam Rasool and Nawab after the crucial date when Muhammad Yahya and Muhammad Yaqoob were added as informer on 11‑11‑1975. It was, therefore, contended that the entire proceedings from commencement to the finish were coram non judice. Learned counsel for the petitioners has placed reliance on para. 54 of Muhammadan Law by D.F. Mulla, Raj Khan and 5 others v. Fatal Hussain and 5 others 1972 SCMR 267; Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634; Noor Muhammad v. Muhammad Shafi and others 1986 SCMR 127; Hidayat Ullah v. Deputy Commissioner/Additional Settlement Commissioner (Land) and 2 others 1976 SCMR 243; Amin Ullah and another v. Member, Board of Revenue‑II, Balochistan, Quetta and 4 others PLD 1982 Quetta 73, Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others PLD 1979 SC 846..

7. Learned counsel for the informers in Writ Petition No. 357 of 1976 contended that the statement made by the learned Advocate was totally erroneous and without instructions. It was, therefore, not binding. It was contended that the petitioners/informers Ghulam Rasool and Nawab Din, were the owners of the claim and, therefore, under section 14 of the Evacuee Property and Displaced Persons Laws Amendment Act 1973, were entitled to the confirmation of resumed land against their unsatisfied claim. On the basis of this argument it was represented that the impugned order to this extent was illegal and without lawful authority.

8. On the other hand, learned counsel for the respondents Muhammad Yahya and Muhammad Yaqoob supported the impugned decision. It was urged that the information was lodged on 30‑3‑1974 and not after the crucial date. Support was sought in this context from the entry on a photostat certified copy of the information wherein the entry was 30/3. It was suggested that the parties were summoned by the relevant authority in 1975. Therefore, it was 'clear that application was given on 30‑3‑1974. Therefore, it was submitted that the application was a pending application and was not hit by crucial date given it Evacuee Property and Displaced Persons Laws Repeal Act XIV of 197_` (hereinafter described as Act XIV of 1975). It was next replied that the doctrine of return was not applicable in the case as Kapoor had one real brother therefore, widow was not entitled under the provisions of Muslim Law to inherit the property of Muslim as a whole.

9. It was lastly contended that the Constitutional jurisdiction was available only if it was demonstrated that order was without jurisdiction or in excess of jurisdiction. In the instant case, the order was passed by the authority with jurisdiction under sections 10 and 11 of the Displaced Persons (Land Settlement) Act. It was clear that Mst. Jummi had secured allotment in excess of her entitlement with complete knowledge, therefore, she has committed a fraud on the Settlement Authorities in securing allotment in excess of her entitlement. It was urged that it was a settled principle that the excess allotment was in fact a fraudulent allotment.

10. I have heard the arguments of the learned counsel for the parties and perused the record with care. After the careful consideration of the case, I have come to a conclusion that fate of these petitions turns upon the answer to a question as to whether Mst. Jummi as a widow of Kapoor was entitled to inherit the whole of the legacy of Kapoor on the principle of return.

11. Before I proceed to determine the question it is to be noticed that none of the parties have proposed that in India Kapoor was survived by any sharer, residuary or a distant kinsman in India. The only allegation is that he had one brother who had died in India. It is also uncontested that Kapoor had died in India before partition. It is also not in dispute that the brother of Kapoor had died in India, therefore, Mst. Jummi was the only legal heirs who migrated from India and came to Pakistan as a displaced person. She was recorded in India as a limited owner, under the Custom, but under para. 46‑A of the West Pakistan Rehabilitation Settlement Scheme his mutation of inheritance had to be effected in accordance with the provisions of Muslim Law.

12. The principle of Return according to Muslim Jurisprudence means whenever a residue is left after satisfying the claim of sharers and there is neither residuary nor distant kinsman, the residue reverts to sharers in proportion to A their shares. This right is known as "Return" or "Radd". The relevant law given in different textbooks of Muhammadan Law is as follows:‑‑ "Para. 54 of Muhammadan Law by D.F. Mulla at page 87‑‑Pakistan Edition:

54. Return (Radd).‑‑1f there is a residue left after satisfying the claims of sharers, but there is no residuary, the residue reverts to the sharers in proportion to their shares. This right of reverter is technically called "Return" or "Radd". Exception: Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a sharer or a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be by Return. A widow is not entitled to any return in presence of daughter of deceased." Muhammadan Law by Sh. Amir Ali Seven111 Edition, Volume II at page 66. "Return‑‑ Husband or widow entitled to‑‑ The early lawyers were of opinion that neither a husband nor a wife was entitled to take by return, but later jurists have held that when the deceased leaves no other heir belonging either to the categories of sharers or residuaries (by blood) or uterine relations (distant kindred), the husband or widow takes by return. And this rule has been recognized and enforced by the British Indian and Algerian Courts. Among the persons to whom there may be a return are the following:‑?(a) mother; (b) grandmother; (c) daughter, (d) son's daughter; (e) full sister; (f) half‑sister by the father: (g) half‑brother; (h) sister by the mother, and a return may take place to one, two, or three classes at the same time. But no more than three can take by return at one and the same time."

13. The same principle is contained in Durrul Mukhtar, at pages 868 and 869.

14. A close examination of the doctrine of Return indicates that it is the apportionment of surplus among the sharers when the sharers do not exhaust the property and there are not residuaries and no kinsmen. The rule is that the surplus is distributed among the sharers in ratio of their respective shares. The early lawyers were of the opinion that neither the husband nor a wife was entitled to benefit by the principle of Return but the later jurists had held that when the propositus leaves no other heirs belonging either to the class of sharers or residuaries or uterine relations, the husband and widow takes the residue by the principle of Return. This rule has been recognized and enforced by the Courts in the sub‑Continent and Algeria. 1, therefore, have no difficulty in reaching the conclusion that mutation of inheritance in respect of the claim of Kapoor in favour of Mst. Jummi was correctly and rightly recorded and Mst. Jummi on the principle of Return was entitled to the surplus after satisfying her legal share. Therefore; I am of a considered opinion that neither Jummi obtained the confirmation in excess of allotment nor by practising fraud or by misrepresentation.

15. The result is that the application of informer from the beginning to finish was totally misconceived and unmaintainable. The proceedings by the respondents from the beginning to finish were, therefore without jurisdiction and without any lawful authority and of no legal effect on the rights of Mst. Jummi.

16. In the light of foregoing analysis I hold that the impugned order of the Additional Deputy Commissioner is without jurisdiction and without any lawful authority and is therefore without any legal efficacy. I accept these petitions and set aside the impugned orders.

17. In view of the complicated nature of the question involved in these petitions, I leave the parties to bear their own costs. M.B.A./N‑325/L????????????????????????????????????????????????????????????????????????????????? Petitions accepted.