1990 PLP 725 (SCMR)

The Chairman, Karachi Estate Board, Karachi. Sir, Re: Amalgamation of Plots Nos.l82, 183, 200 and 201, K.E.B., Artillarv Maidan. I herewith submit three copies of plans for amalgamation of the above plots for favour of your early sanction. It is my intention to construct a Cinema on part of this combined plot and some shops and residential quarters on the remaining portion. This property is intended to be a trust property, the proceeds from which be advanced towards charity. Education etc. Restrictions as per original sale conditions for the built up area and compulsory open spaces are such that it will not be possible to construct a Cinema as per my intentions. It is, therefore, requested that the conditions of the above plot may kindly ,, be modified so that I may be in a position to have my requirements in the above plots. Conditions may kindly be modified as follows:‑

1. Build up area which is 1/3rd of the plot as per original condition may now be allowed as 2/3rd.

2. Compulsory open spaces may now be kept as proposed by me and which is shown on plots in red.

3. Number of storeys be increased on the Queen's Way to three including ground floor. In view of the above facts as stated, I requested to kindly give your early sanction to the amalgamation of the plot with the modification in the conditions as stated above. Yours faithfully, (Sd.) Rai Bahadur." The reply to this letter is in the following terms: No K.E.B.905‑1946 Karachi, 19‑11‑1946. To R.B.Naraindas Moolchand, Reg. Plots Nos.182, 183, 200 and 201 A.M./Or. Ref. Your application dated 22‑8‑19.16. The above application was placed before the Board in their meeting on 7‑11‑1946 and they resolved as follows:‑ The assurance having been given that trust deed is complete, the Board allows the proposed amalgamation of the four plots viz. 182, 183, 200 and 201 for the purposes of building a cinema house and other buildings, the income of which will be utilized for charitable and educational purposes and relaxes the respective building conditions subject, to the following restrictions: (a) 10' wide space must be left open on two sides of the amalgamated plot and 15 wide space at the back. In front the building will be allowed to come up to the road. (b) Half the area is to be built upon. Small a space may be allowed by the Chairman. (c) The plans to be submitted for approval as usual to the Karachi Estate Board and Karachi Municipal Corporation. (d) Only offices will be allowed on the first floor. (Sd.) (illegible) 19/Xi. Honorary Secretary, Karachi Estate Board." As the letter dated 22nd August, 1946, did not specifically disclose that Rai Bahadur Naraindas Moolchand was writing the same in his capacity as the trustee of the property, the learned Judge regarded this omission to mean that the letter was written in his individual capacity, taking it to be conduct on his part to treat the property as his private property. The learned Judge has, however, omitted to take into consideration that the three sale‑deeds relating to the properties mentioned in the letter, clearly disclosed that Rai Bahadur Naraindas Moolchand was not the vendee in his personal capacity but had figured therein as the sole trustee or as trustee alongwith his wife Mst. Shirimati Vishindevi. From the categorical statement made in this letter that the property was "intended to be a trust property, the proceeds from which will be advanced towards charity, education etc." the learned Judge inferred that the trust was still to be created in the future and did not refer to the earlier trust. These conclusions do not logically follow from the language of the letter. As long as relevant sale‑deeds, which are the most essential evidence of title and ownership, unambiguously showed that the property belonged to a trust, the omission to mention the capacity of the writer of the letter as the trustee is, in our opinion immaterial. The letter on the whole clearly shows as evidence of conduct on the part of Rai Bahadur Naraindas Moolchand that he was treating the property as one of trust for charitable and educational purposes. Also the reply dated 19th November, 1946, shows that an assurance was given to the Board that the trust deed was complete on the basis of which the proposed amalgamation of the four plots, was allowed for the purposes of utilizing the income "for charitable and educational purposes". Accordingly instead of militating against the nature and status of the trust as canvassed for, the letters go a long way to prove by their unrebutted evidence that the property was being treated as religious and educational trust. The third document which the learned Judge made reference to was the trust deed, dated 14th May, 1947, by which the four plots in dispute were joined and made the subject‑matter of trust. The learned Judge rejected this document as ineffective in law for want of confirmation by the Custodian as already held by the Dorab Patel, J., (as he then was) in his judgment, dated 12th May, 1971, whereby the case was remanded. Nevertheless the reasoning of the learned Judge was that if the property in ' dispute were already governed by the earlier trust created in 1941, it could not be taken out of that trust and made a part of the trust created on 14th May, 1947. We are unable to agree with the learned Single Judge on this part of the reasoning. In the first place if the document was rejected as ineffective in law on account of lack of confirmation on the part of the Custodian, it could not be held that the same constituted a separate and distinct trust, as that would be giving effect to the document. With that will disappear the reasons supporting the conclusion. However, if at all the document could be looked into, then it clearly mentioned that the same was being executed for the purpose of a charitable trust, with the result that the nature of the trust which had acquired the property can be clearly proved to be for charitable and educational purposes. It may further be pointed out that Dorab Patel, J. in his judgment remanding the case to the Chairman for fresh decision, had observed that the three sale‑deeds have to be read together. This is further fortified by the fact that all the four plots were mentioned jointly in the application made by Rai Bahadur Naraindas Moolchand to Karachi Estate Board, for the purpose of utilizing the same. If the sale‑deeds are thus jointly read, then the fact that the sale‑deed, dated 22nd August, 1948, related to the property acquired for the purpose of earlier trust created in 1941, would also apply to the other two sale‑deeds. In this manner the property comprised in the three sale‑deeds would all be accretions and additions to the earlier trust, of which, as earlier mentioned, purposes were religious, charitable and educational. This would be sufficient to uphold the finding arrived at by the Chairman, Evacuee Trust Board. The status of the properties as held above is further supported by the fact that the extract from the City Deputy Collector's Office shows that the property had been purchased for the Naraindas Trust. We have already held that entries mentioned in the revenue record regarding ownership are presumptive evidence of title, which shift the burden on the person who challenges their correctness to establish otherwise. No evidence was pointed out to us detracting from the truth of the evidence of the entries. Additionally as observed by the learned Single Judge the admitted position was that all the four plots in dispute had been entered as evacuee trust property in the Evacuee Property Register lie survey of the property by the Custodian Authorities. For all the aforesaid reasons we are unable to uphold the finding of the learned Single Judge that the properties in dispute were not a part of the trust created in 1941 but were the subject‑matter of the subsequent trust attempted to be created in 1947, which, however, was ineffective for want of Custodian's confirmation. We think that there was sufficient evidence on record which established that the property an dispute was attached to charitable, religious and educational trust. However, we may at this stage observe that it is well‑settled that the scope of the proceedings consequent upon a remand order is governed by the terms thereof. In the proceedings prior to remand the trust deed, dated 28th November, 1941, was not produced for the consideration of the departmental authorities. It was sought to be produced in appeal before Dorab Patel, J. in the. High Court. According to the finding of the said learned Judge, there were two trusts, one created by the deed dated 14th May, 1947, which failed as ineffective in law due to lack of Custodian's approval. In the background of these facts. The learned Judge proceeded to give his reasons for remanding the proceedings to the Chairman, Evacuee Trust Property, for fresh decision as under: "But as I have explained in para 5, there were two trusts, and the properties were purchased on behalf of the first Dharamda Trust, therefore, I explained to Mr.Mujtaba that he could not succeed unless he showed that the objects of the earlier Dharamda Trust were also exclusively charitable. But as that Trust deed had not been produced before the first respondent it could not be accepted at this appellate stage. Mr.Mujtaba then made a statement from the. Bar that he had personally read that earlier trust deed, and he knows that its objects were. exclusively charitable. He, therefore, sought permission to produce it before me. I was in some doubt as to whether I should allow Mr.Mujtaba to produce the trust deed at this stage, but Mr.Munshi and the learned counsel for the appellants very fairly suggested that the case should be remanded to the first respondent, and that the second respondent should be permitted to produce the earlier Dharamda Trust before the first respondent. I accepted this very fair suggestion. For the reasons given herein I had allowed these appeals on 3rd May. 1971, with costs and with a direction that the case should be remanded to the first respondent who will rehear the matter and allow the second respondent to produce a copy of the earlier Dharamda Trust. Clearly, therefore, the learned Judge at the time of remanding the case had given a categorical finding that the properties in dispute were purchased on behalf of the first Dhramda Trust, but as the trust decd constituting the said trust was not produced in evidence, the case was remitted to the Chairman so that the same may be produced and its objects may be examined. Accordingly the learned Single Judge in the impugned judgment in this appeal, having held that the objects of the first trust constituted in 1941, were religious, charitable and educational, the matter stood concluded that the disputed properties were evacuee trust properties of the same nature. In examining the question whether there was a connection between the earlier trust with the disputed properties, learned Judge travelled beyond the scope of the remand order. The reference made by the learned Single Judge to Lakshmi Narayan Jew and others v. The Province of East Pakistan 1969 S C M R 898, Divisional Evacuee Trust Committee v. Abdullah and others 1970 S C M R 503, was not pertinent as the said decisions were distinguishable on facts and the dicta laid down therein are not attracted in the present case. Similarly Syed Abdus Saleem and others v. The Chairman, Evacuee Property Trust Board and another P L D 1975 Lahore 960 and Badruddin v. Kazi Munshi and others P L D 1972 Karachi 101 are also distinguishable as they dealt with a different set of facts. For the reasons stated above these appeals are accepted and partly allowed, in so far as we grant declaration that the properties in dispute were attached to religious, educational and charitable trust but it may be added that this declaration would not have the effect of its own force to annul the transfers already made to respondents. This observation has become necessary in view of the provisions of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which came into force in 1974, section 10(1)(b) of which lays down as under: "An immovable evacuee trust property, if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool." The Authorities concerned will give effect to all such transfers in which Permanent Transfer Deeds were issued prior to June, 1908, unless the relevant Authority finds after a proper inquiry that the properties were not utilized bona fide while transferring the same in favour of the transferees. The appeals are allowed in these terms with no order as to costs. A.A./E‑17/S Appeal allowed.