P L D 1976 Karachi 109 (PLP)

Respondent No. 3 : (Absent). Respondent No. 4 : Served by Publication. Dates of hearing: 5th, 6th, 7th, 8th, 12th, 13th August 13th, 14th and 15th October 1975. This Constitutional Petition is directed against the order of the Custodian of Evacuee Property, the respondent No. 1 dated 9-5-1966 setting aside the order of confirmation of sale passed by the Additional Custodian of Evacuee Property dated 26-9-1959 and declaring that the property in dispute shall retain its character as Evacuee Property.

2. The property in dispute comprises a plot of land with residential building thereon No. 14-J. M. 5 (city survey No. J. M. 5/928) measuring 1355 square yards situated on Clayton Road, Karachi, known as "Mohini Mahal" (hereinafter referred to as "the suit property"). Gopaldas Dowlatram Bhavnani (hereinafter referred to as Gopaldas), a Hindu, then a Deputy Superintendent of Police, obtained a 99 years' lease of the plot of land of the suit property in his own name from the Karachi Municipality by a registered Indenture of Lease dated 11-3-1939. Gopaldas mutated this plot of land in the name of his wife, Tulsi Bai in the city survey records on 10-7-1942 on the basis of an oral partition between him, his wife Tulsi Bai and his two sons, Parsram and Arjan, which is said to have taken place some time earlier in April, 1942. By a registered sale deed dated 6-12-1947, Mst. Rubab Bai wife of Ghulam Hussain Matcheswala, the respondent No. 4, purchased the suit property for a consideration of Rs. 80,000 from Gopaidas and his wife Tulsi Bai. In the sale deed, Gopaldas and his wife Tulsi Bai were together shown as Vendors and the sale deed recited that Gopaldas had obtained the lease of the suit property in his name from the Karachi Municipality and had since mutated the said hereditaments in the name of his wife Tulsi Bai in the records of the city Deputy Collector, Karachi, with the result that her name appeared as the owner in the Property Register. The sale deed was executed by Gopaldas for self and as attorney of Tulsi Bai. The attesting witnesses thereto were P. G. Bhawani and N. N. Kotwal, Advocate. The deed was registered by the Sub-Registrar on 17-3-1949.

3. Rubab Bai applied for the confirmation of the said sale, but the Deputy Custodian (Judicial), Evacuee Property, rejected her application on 5-5-1959 on the ground that the Extract from the Property Register showed that Tulsi Bai had only a life interest in the property under Hindu Law and that as the property would revert to her sons after her death, Rubab Bai did not acquire title to full ownership, but only to a life interest, and further that she had failed to establish that Tulsi Bai was still alive.

4. Rubab Bai preferred an Appeal to the Additional Custodian (Judicial), who allowed her appeal and confirmed the sale transaction by his order dated 26-9-1959. He held that Gopaldas alone was the real owner of the suit property, as the lease from the Municipality stood in his sole name and that there was nothing to show that there was an oral partition and, in any case, if there was an oral partition, no title passed to Tulsi Bai in the absence of registration of an instrument of partition and that the entry relating to the alleged life interest under Hindu Law appeared to be the result of a document made by Gopaldas or a legal misconception of the clerk, who made the entry as to the Hindu Law.

5. Rubab Bai conveyed the suit property to Muhammad Ali Heemani, tile predecessor of the petitioner, through a registered sale deed on 23-9-1960 for a consideration of Rs. 45,000.

6. K. A. Majeed, the respondent No. 2, a displaced person, who was occupying a portion of the bungalow on the suit property, applied on C. H. Form for its transfer to him, but his application was rejected on 17-11-1959 on the ground that the suit property had already been confirmed in favour of Rubab Bai. Therefore, Majeed, who was also holding the influential position of Commissioner of Income-tax at Karachi, addressed a letter dated 6-4-1961 to the Director of Enforcement (Evacuee Property and Claims), South Zone, Lahore, the respondent No. 3, alleging that the order of the confirmation of the sale passed by the Additional Custodian in Appeal was obtained by misrepresentation of facts by Rubab Bai that Dowlatram was owner of the property, whereas it was Tulsi Bai, who owned only a life interest therein and that, therefore, the sale deed was void and the property remained evacuee property. He therefore, prayed that further investigation may be made in the case and the property be transferred to him as informer against his verified claim. Accordingly, the Custodian of Evacuee Property was directed by the Director of Enforcement, respondent No. 3, to hold an enquiry under Martial Law Regulation No. 49 and initiate a suo motu revision. He sent the case to the Additional Custodian (Judicial) for enquiry and report. The latter, after issuing notices on 5-7-1962 to the petitioner as well as to Rubab Bai and Majeed under M. L. R. 49, held the enquiry, in which the petitioner as well as Majeed were represented by Advocates. He submitted his report on 15-12-1962 to the effect that no fraud or misrepresenta tion was practised by Rubab Bai and that there was no substance in the allegation put forward by the informer, Majeed as well as by the Income-tax Department, that the issuance of the Income-tax Clearance Certificate to Rubab Bai was obtained by misrepresentation. He observed that the order of confirmation of the suit property dated 26-9-1959 passed by the Additional Custodian, Mr. Riazuddin was a perfectly valid order.

7. When this report was put up before the Custodian of Evacuee Property, Majeed as well as respondent No. 3 made representations to him that o5 further probe, new evidence had come in light that Rubab Bai was an Indian national and, therefore, an evacuee and that consideration paid by the petitioner to Rubab Bai was not adequate, and that evidence of oral partition exists in the office of the City Deputy Collector, Karachi in the form of a letter dated June 1942 signed by Doulatram, Tulsi Bai and their two sons, requesting for mutation of names on the basis of an oral partition of Joint Hindu Family Property. Therefore, the Custodian sent the case back to the Additional Custodian (Judicial) on 18-4-1963 for a further report on the new issues raised in the case.

8. This time, the Additional Custodian recorded the evidence of three witnesses and also of the petitioner and, after scrutinizing the evidence both oral and documentary, he submitted his report on 7-11-1963, to the Custodian on all the aspects of the case with his recommendation for his consideration.

9. After hearing the parties, except Rubab Bai who failed to appear, the Custodian by the impugned order dated 9-5-1966, set aside the order of confirmation of the sale passed by the Additional Custodian dated 26-9-1959 and restored the order of the Deputy Custodian dated 5-5-1959. He held that oral partition stood proved and that being a family settlement, no registration was necessary in order to pass title to Tulsi Bai, that Rubab Bai was an evacuee and there was absence of adequate consideration from petitioner, for the transfer of the suit property to him. Accordingly, he declared that the property shall retain its character as Evacuee Property and shall continue to be such. The present Petition seeks to challenge the aforesaid impugned order.

10. Mr. Ali Ahmed Fazeel, learned counsel for the petitioner assailed the impugned order of the Custodian on several grounds. His first submis sion was that the Custodian could not assume jurisdiction to question the order of the Additional Custodian dated 26-9-1959, confirming the sale to Rubab Bai by issuing notice dated 5-7-1962 under M. L. R. No. 49 on the ground that the M. L. R. stood repealed on 7-6-1962 from the commencing date of the 1962 Constitution by Article 225 (3). In reply Mr. S. M. Sadiq, learned counsel for K. A. Majeed, respondent No. 2 submitted, rightly to my opinion, that as the Director of Enforcement, Lahore had directed the A Custodian to hold an enquiry under M.L.R. No. 49 on the earlier representa tion of Majid, the investigation started on 24-2-1962 was saved by Art. 250 of the said Constitution notwithstanding the repeal of the M. L. R. He further submitted that even if the proceedings were not saved by the M. L. R. all the orders culminating in the impugned order were passed by the Custodian in the exercise of his suo motu jurisdiction under section 43(4) of the Pakistan (Administration of Evacuee Property) Act XII of 1957. This submission of Mr. Fazeel is therefore, not acceptable.

11. The next submission of Mr. Fazeel was that conceding that the Custodian has full power of suo motu revision under section 43(4) of the said) Act, the Revision could not be made under that provision because neither Majeed nor the Director of Enforcement were parties to the Revision and in this connection, he relied on certain passing observations of the Supreme Court in Muhammad Siddique and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (PLD1965SC123) in connection with the corresponding section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1957. I am not inclined to accept this submission because although these persons were not aggrieved parties, nevertheless they had sufficient interest to initiate action by the Custodian under his suo motu powers, in the exercise of his discretion.

12. Mr. Fazeel then submitted that the exercise of suo motu power by the Custodian under section 43 is subject to section 3 of the said Act which provides that notwithstanding anything contained in the said Act, no property not treated as evacuee property, immediately before 1-1-1957 shall be treated as evacuee property on or after the said date, unless proceedings were pending before that date for treating such property as evacuee property. He submitted that proceedings for confirmation, which were pending on the relevant date, cannot be said to be proceedings for "treating" the property as evacuee property and that treating required some conscious overt act on the part of the authorities. But Mr. S. M. Sadiq showed from the record that the Reha bilitation Authority bad treated the suit property as evacuee property and, in fact issued notices of intention to allot the upper storey of the bungalow, whereupon Mr. M. N. Kotwal, Advocate for Rubab Bai, submitted an application on 6-5-1955 in paragraph 5 of which he has stated that the Rehabilitation Authority has "treated" the property as an evacuee property and prayed for stay of the allotment proceedings until disposal of the confirmation application then pending. The interim stay was granted and the stay was later confirmed. Mr. Fazeel then sought to rely on subsection (2)(b) of section 3 of the said Act and submitted that the General Power of Attorney executed by Rubab Bai in favour of her hus band dated 7-2-1951 authorising him to manage the suit property, was "accep ted" by the Custodian on 9-2-1957 and that amounted to acceptance or approval by the Custodian of the authority of the attorney of Rubab Bai and hence, the Custodian had no jurisdiction to declare the suit property as Evacuee Property any longer. But Mr. Sadiq's submission is that the power of attorney did not satisfy the requirements of the definition of "Evacuee" in section 2(2) (c) of the Act, as that applied to a person who i resident in India, whereas the power of attorney of Rubab Bai showed that she was residing in the suit property at Karachi. Moreover it appears that the attention of the Custodian, who had accepted the power, was not drawn to this point. Therefore, in my opinion, the endorsement by him on the power "before me accepted Akbar Hussain 1957" was not a proper order contemplated under section 3(2) (b) of the said Act.

13. The next submission of Mr. Fazeel was that the Custodian acted illegally and without jurisdiction in accepting an oral family arrangement said to have come into existence in 1942 under which Tulsi Bai is said to have acquired an interest in the suit property, without there being any evidence to prove its existence. Mr. Fazeel's contention is that the oral family arrangement has not been proved as a valid transaction. The Custodian on the other hand, relied on mutation proceedings in which the "oral partition" is referred to, as proof that the oral family arrangement had existed. The mutation proceedings comprised of a letter addressed to the City Deputy Collector, Karachi, said to have been signed by Gopaldas, Tulsi Bai and their two sons, requesting mutation in their respective names of properties divided between them by an oral partition made sometime before 1st April, 1942. The date of the letter was torn from the original but from internal evidence, was placed as `27-6-1942. A copy of this letter was produced by Imtiaz Ahmed P. W. 2, the City Surveyer, before the Additional Custodian, who was holding the enquiry, and was exhibited as document Exh. P. W. 2/1 without any objection from petitioner's Advocate. The other document relied on by the Custodian as proof of the eral family arrangement, was the extract from, the Property Register Exh. A/2, which shows that the suit property was mutated in the name of Tulsi Bai on 10-7-1942 against entry "by oral parti tion" which was made pursuant to the aforesaid request for mutation Exh. P.W. 2/1. As observed by the Privy Council in Thakur Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others (AIR 1926 P C 100) it is an error to assume that proceedings for mutation of names are judicial proceedings in which title to and the proprietary rights in immovable property are determined. They are more in the nature of fiscal enquiries instituted in the name of the state in the interest of collecting revenue from the claiming occupants. Following the Privy Council case, it was held by the erstwhile High Court of West Pakistan fin Firdaus Khan v. Sayid Azam Shah and others (P L D 1970 Pesh. 141) that mutation and sub sequent entries in the record-of-rights do not create title in favour of any person, as these documents are not deeds of title. The validity or otherwise of a transaction depends not on the mutation or entries in the record-of-rights but on the fact whether there was a valid transaction in existence which was given effect to in the revenue papers. Therefore, I accept the submission of Mr. Fazeel that in the absence of any independent proof of the existence of the oral family arrangement, reliance on the letter requesting mutation Exh. P. W. 2/ 1 and the mutation entries Exh. A/2 were no substitutes for such proof. There is also no evidence that the alleged oral partition was acted upon ; nor was it even accepted by the Income-tax Officer, who treated the property as belonging to Gopaldas and not to his wife, Tulsi Bai.

14. Mr. Fazeel also contended that the mutation letter Exh. P. W. 2/1 could not be brought on record without formal proof of the signatures of the four executants, as required under section 67 of the Evidence Act and in this connection, he referred to the majority view of the Supreme Court in Muhammad Yousuf Khan Khattak v. S. M. Ayub (PLD 1973SC160). 1 am bound to accept the majority view despite Mr. Sadiq's submission relying on Abdullah and others v. Abdul Karim and others (PLD 1968SC140) and Malik Din and others v. Muhammad Aslam (P L D 1969 S C 136) that the petitioner is debarred from raising objection at this late stage to the mode of proof of the letter which was admitted to the record and marked as an exhibit during the enquiry before the Additional Custodian without any objection.

15. Even if the mutation letter P. W. l/1 is evidence and it is considered that the oral family arrangement of 1942 has been established, the question still is whether Tulsi Bai had acquired a valid title to the suit property in law, without registration. This question was considered by the Full Bench of the Allahabad High Court in Ramgopal v. Tulsi Hare and others (A I R 1928 All, 641). They held that a family arrangement dealing with immovable property of the value of Rs. 100 and upwards, can be made orally and if it is not reduced to the form of document, no question of registration arises and possession may be lawfully taken by the parties under it of their respective shares do Gutta Radhakrist nayya etc. v. Gurta Sarasamma (A I R 1951 Mad. 213), it was also observed that partition between co-parceners does not amount 2o, nor requires an conveyance because: "Partition, therefore is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary." And Mr. Sadiq relied on this case to show that under Hindu Law, partition of joint family properties may be orally effected and no registration was required and that as under Hindu Law, Tulsi Bai became entitled to receive the same share as that of a son, she was allotted the suit property in lieu of her share. But where a property is brought within the scope of the family arrangement and is allotted to one or other of the parties, it may be that qua that property, there would be a transfer of ownership and in the absence of registration, it would pass no title. 1n the instant case, the suit property stood exclusively in the name of Gopaldas in his individual capacity and not as a karta of the joint Hindu family. There is no evidence whether the suit B property became joint family property. And, even if it did, Tulsi Bai not being a co-parcener, had no antecedent title to any undivided share in it Therefore, even if the oral partition or family arrangement is accepted, the inference is that by allotment of it to Tulsi Bai, a new and distinct title was being conferred on her, and, in the absence of registration, no such title could pass to her. Gopaldas continued to remain the real owner of the suit property and Rubab Bai acquired a valid title from him. Tulsi Bai was joined in the sale-deed only because the property was mutated in her name. I am therefore, in agreement with the submission of Mr. Fazeel that the acceptance by the Custodian of the oral family arrangement as conferring a title on Tulsi Bai was illegal and without jurisdiction.

16. Mr. Fazeel next submitted that the Custodian exceeded his jurisdiction in declaring by the impugned order dated 9-5-1966 that Rubab Bai was an evacuee despite the bar created by section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957. That section expressly states that no person not treated as evacuee immediately before 1st day of Junnary, 1957, shall be treated as an evacuee on or after the said date. There is no evidence that prior to 1-1-1957, Rubab Bai was ever treated as an evacuee or that pro ceedings were pending in that regard before 1-1-1957, although the suit, property itself was treated as evacuee property by the Rehabilitation Authorities, as stated earlier. I therefore, accept the submission of Mr. Fazeel that the Custodian's order declaring Rubab Bai as an evacuee, was without jurisdiction. It is, therefore, not necessary to consider Mr. Fazeel's sub mission that there was no material evidence to substantiate the finding by the Custodian as to the evacuee status of Rubab Bai. Therefore, the sale transaction in favour of the petitioner from Rubab Bai did not require con firmation. It is also not necessary to consider the submission of Mr. Fazeel with regard to the powers of the Income-tax Department to cancel the Income-tax Certificate once granted, because the impugned order is not based on it.

17. For the foregoing reasons, I would accept this petition. It is hereby declared that the impugned order passed by the Custodian dated 9-5-1966 is without lawful authority and is of no legal effect. The petition is accordingly, allowed with costs. S. A.H Petition allowed.