P L D 1961 Supreme Court 206 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the decision of the Evacuee Property Inquiries Tribunal, Karachi, in a reference made to it, by the Ministry of Rehabilitation, Government of Pakistan, under section 43‑A of the Pakistan (Administration of Evacuee Property) Act, 1957, as amended by the Pakistan (Administration of Evacuee Property) . (Amendment) Ordinance, 1959. The facts giving rise to the said reference may be briefly stated as follows: One Seth Kodumal; a resident of Tando Adam in the District of Nawabshah, who possessed some 2.550 acres of agricultural lands and other urban properties, purported, in the year 1948, to make a gift of his agricultural lands to his elder brother Seth Jassumal, the appellant herein, by means of an oral declaration to that effect before the Resident Magistrate of Tando Adam. On the basis of this oral declaration the Revenue authorities mutated the name of the appellant in the revenue records showing him as "the holder" of the lands within the meaning of the land Revenue Code. The appellant, it is claimed was also put in to possession of the said lands after such mutation. Thereafter, in the year 1950, Seth Kodumal, the appellant, and a third brother of theirs, Seth Tarachand, obtained an order from the Custodian of Evacuee Property, Karachi, declaring them non. evacuees and their properties non‑evacuee properties. In the meantime, however, during 1948 the entire family of Seth Kodumal left for Jodhpur in India for the ostensible purpose of getting a lunatic daughter of Seth Kodumal treated there and continued to remain in India, although Kodumal had in 1951, presumably after the introduction of the Passport and visa system between India and Pakistan, obtained a "No objection certificate" from the District Magistrate, Nawabshah, to bring back his family to Pakistan. Notwithstanding the alleged oral gift, Seth Kodumal again on the 13th of January 1952, executed a will devising and bequea thing all his real and personal estate including the agricultural lands in Taluka Shahdadpur, District Nawabshah, and the urban properties at Tando Adam and Shahdadpur towns, absolutely to the appellant, who was also appointed the executor under the said will. Unfortunately, soon after the execution of the will Seth Kodumal died suddenly of heart failure on the 11th of February, 1952, at Tando Adam. After his death the appellant in order to prevent the Rehabilitation Department taking over the properties of the deceased as evacuee properties filed an application on the 26th of August 1952 under section 18 of the Pakistan (Administra tion of Evacuee Property) Ordinance, 1949 (Ordinance No. XV of 19 49), before the Assistant Custodian, Nawabshah, for a declaration that the properties of the deceased were not evacuee properties and that the appellant was the legal owner thereof. In this application the appellant claimed the properties both as the sole legatee under the will of Kodumal as also as his donee under the alleged oral gift of 1948. The Assistant Custodian, however, dismissed the application on the 4th of January 1954, holding that the appellant had no locus standi at the time of the filing of his application to maintain the same ; that the will had not been proved, as the photo state copy thereof filed was not admissible in evidence and that the will did not transfer any property or interest to the appellant, as it had not been confirmed by the Custodian's Department. It appears that the Rehabilitation authorities had also applied by letter to the Assistant Custodian to declare the properties of Kodumal as evacuee properties and the Assistant Custodian, after holding that the properties did not vest in the appellant, declared them evacuee properties belonging to the heirs of Kodumal, who were considered to have become evacuees by then. It was only after this that the appellant applied for probate of the will and on the 30th of April 1954, obtained the order granting probate from the Subordinate Judge of Shahdadpur. The appellant then went up on appeal against the order of the Assistant Custodian but the Additional Custodian (Judicial) dismissed the appeal holding that the execution of the will was a transaction prohibited by Paragraph 3 of the Notification of the 10th of January 1950, as amended by the Notification dated the 8th of May 1951, issued in exercise of the powers conferred by section 15 of the Ordinance No. XV of 1949, as Kodumal was, at the time he executed the said will, an "intending evacuee" within the meaning of clause (c) of subsection (3‑A) of section 2 of the said Ordinance. The will, therefore, could not be given effect to, as the said Notification prohibited the creation of any right in immovable property by such a person. On revision; however, the Custodian of Evacuee Property (South Zone) West Pakistan, by his order of the 12th of December 1957, reversed the decision of the Additional Custodian and allowed the application of the appellant declaring the properties to be non‑evacuee properties vested in the appellant. In his view a person could not be treated as an "intending evacuee" unless he was declared to be so under section 2(3‑A) of Ordinance No. XV of 1949 and that, in any event, a will did not come within the mischief of the Notification, because, the will was neither a transfer of property nor did it purport to create any right or interest in any immovable property. According to the learned Custodian it was only on the 10th of April 1956 that under Notification No. F. 9 (4)/56‑R‑II, the transfer or creation of any right or interest in any immovable property by will came to be prohibited. It is against this order of the learned Custodian that the Government of Pakistan made a reference in 1959 to the Evacuee Property Inquiries Tribunal, which reversed the decision of the Custodian and ordered that all the properties left by the deceased Kodumal were rightly declared to be evacuee properties. The appellant now seeks to challenge this decision of the Tribunal on mainly three grounds :‑ (1) that the Notification of the 10th of January 1950, as amended by the Notification of the 8th of May 1951, did not prohibit the making of a will, as a will neither transferred any property nor created any right or interest in any property devised, (2) that the "intending evacuee" referred to in the said Notification could only mean a person declared to be an intend ing evacuee in accordance with the provisions of section 23‑A of Ordinance No. XV of 1949, and (3) that in any event the deceased Kodumal could not at the time of the execution of the will be treated as an intending evacuee within the meaning of clause (c) of subsection (3‑A) of section 2 of Ordinance No. XV of 1949 upon the evidence on the record. It will be convenient here to set out the terms of section 15 and the Notification No. F. 28, 33/49‑P, dated the 10th of January 1950, as amended up to the 8th of May 1951 :‑ "Section

15. Prohibition of transfers of property generally. The Central Government may, by notification in the Official Gazette, declare that in such area and for such period as may be specified in the notification, the transfer of any property or class of property, or the creation of any right or interest therein or encumbrance thereon, shall be prohibited, and where any such declaration has been made, no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian: Provided that nothing in this section shall prevent the transfer of movable property of which an evacuee has immediate physical possession". "Notification. In exercise of the powers conferred by section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949), the Central Government is pleased to declare that, with effect from the eleventh day of January 1950, in the areas in which the said Ordinance is in force, no transfer of property or creation of any right in immovable property shall, until the 10th day of April 1952, take place as follows, namely :‑ (1) Transfer by sale, exchange or otherwise, of any agri cultural evacuee property, and such agricultural property as a person intends to alienate in anticipation of his becoming an evacuee: (2) Transfer of any urban immovable evacuee property, and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee,‑ (a) by sale, agreement relating to which is entered into on or after the twenty‑sixth day of July 1949, or, if the agree ment was entered into before the said date, in respect of which more than twenty per centum of the consideration money remained, on the said date, to be paid by the vendee to or to the account of the vendor ; (aa) by lease or mortgage, agreement relating to which is entered into, or by which, if there is no agreement, the interest of the lessor or mortgagor is thereby transferred, on or after the 12th October 1951. (b) by exchange, with such urban immovable property as is not treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or, if it is so treated, is not situated in any of the following areas, namely :‑ The Provinces of East Punjab, Himachal Pradesh, Delhi and Merwara‑Ajmer the Districts of Saharanpur, Debra Dun, Meerut and Muzaffarnagar in the United Provinces, the Patiala and East Punjab States Union, Dholpur and Karauli States (now included in the Matsya Union), the Rajasthan Union, Saurashtra (as both these Unions stood on the 22nd July 1948), and the States of Bharatpur, Alwar, Bikaner, Jaipur and Jodhpur. (3) Creation of any right or interest in any immovable property by an intending evacuee." The learned counsel for the appellant does not press his claim on the basis of the oral gift but contends that the will of Kodumal is not affected by the provisions of either section 15 of the Ordinance XV of 1949 or the Notification above quoted. Accord ing to him, the transfer of property and the creation of any right or interest in any immovable property prohibited there under could only apply to transactions oaf the nature of sales, exchanges, mortgages or other transactions of alike nature, which had been dealt with under the Transfer of Property Act, that is to say, transactions inter rims. A will on the other band, it is said, neither effects a transfer of, nor creates any right or interest in, any property devised or bequeathed under the will at the time of its execution. A will, it is argued, regulates testa mentary succession as opposed to intestate succession, which are not transfers at all but devolutions by operation of law. Furthermore, that the will being ambulatory in nature, the legatee or devisee under the will like an heir at law acquires no interest in the property devised either at the time of the execution of the will or during the lifetime of the testator and may never acquire any interest if the will is revoked. Thus to hold that a property devised by a will is evacuee property would amount to declaring a person to be an "evacuee" or "intending evacuee" even after his death, although in his lifetime re suffered from no such disability. In support of this contention reliance is also sought to be placed on the reasonings of a decision of the Supreme Court of India in the case of Ebrahim Aboobaker and another v. Tek Chand Dolwani (AIR 1953 S C 298), where it was held that a person could not be declared to be an evacuee after his death nor could the property left by him become evacuee property if his heirs continued to reside in India. The facts of this case were entirely different. Although the deceased Aboobaker was declared to be an intending evacuee in his lifetime, there is nothing in the decision to show that he made any disposition of his properties either by deed or will. It was in those circumstances held that the order of the Custodian General declaring him to be an evacuee after his death during the pendency of the appeal before him was with out jurisdiction, as his heirs, who were residents of India, acquired vested shares in his properties by devolution and not by any mode of transfer. The decision is, therefore, of no assistance, for the question raised before us was not considered therein: Proceeding, therefore, to test the validity of the otherwise attractive arguments advanced by the learned counsel we have to concede that a will does not come within the ambit of the transfers of property dealt with under the Transfer of Property Act but that is because section 5 of the said Act restricts the meaning of "transfer of property" to an act "by which a living person conveys property." Otherwise a deed and will both effect dispositions of property. A deed operates eo instanti whilst a will makes a posthumous disposition, although the main purpose of both is the disposal of property. If a gift by deed of property with a reservation of a life interest in the donor can be a transfer of property then why should a disposition of property by will, which seeks to achieve the same object, treated as transaction of an inherently different character. The mere fact that a will revocable should not alter the nature of the transaction for the legacy even under the Succession Act (section 104) vests in the legatee from the day of the death of the testator and thus effects a transfer of the legacy in future as from that day in such a manner that even if the legatee dies before actually receiving the legacy, it passes to his heirs and legal representatives. We are not also impressed by the argument that under section 332 of the Succession Act the title of the legatee is completed only when the executor appointed under the will assents to the legacy and under section 333 thereof the transfer is only effected as a consequence of the assent. This does not mean that the legatee has till then acquired no interest or right in the legacy. The right, even though an inchoate right until assent is nevertheless an interest created by the will itself and the assent is only a perfecting act for the security of the executor. The assent thus creates no new title, for, the title vests in the legatee from the moment of the death of the testator, in the case of a specific bequest, under section 104 of the Succession Act, and it cannot, therefore, be said that till the executor has signified his assent the legatee has no interest whatsoever in the subject‑matter of the legacy. It is interesting to note that as early as 1774 Lord Mansfield in the case of Harwood v. Goodright (1 Cowper 87) stated whilst describing the nature of a will under the law in England that "a devise in England, is an appointment of particular lands to a particular devisee; and is considered in the nature of a conveyance by way of appointment ; and upon that principle it is, that no man can devise lands which he has not at the date of such conveyance". it is upon the same principle, we think, that the legatee has under the Succession Act an interest in the legacy which is even transmissible and transferable as soon as it becomes vested in the legatee, notwithstanding that the assent of the executor has not been received. A legatee might thus even sue to recover the legacy under the will and if a legatee dies before the assent, a legacy does not lapse but it passes on to the legal representatives of the legatee. Thus a will does, in our view, certainly create a right or interest in the property disposed of by the will from the moment of the death of the testator and in that sense making a will does amount to a creation of such a right or interest in property. In this view of the matter the making of a will does come within the mischief of paragraph (3) of the Notification of the 10th January 1950 as amended up to the 8th May 1951 and the further amendment of the said paragraph by the Notification No. F. 16 (10)/54‑R. S., dated the 30th August, 1954, which ha been overlooked by the learned Custodian by expressly incor porating therein the words "by will or otherwise" merely clarified the position out of abundant caution. Coming now to the next point urged, we have no hesitation in rejecting the contention that an "intending evacuee" in the Notifications means only a person who has been declared a intending evacuee under section 23‑A of the Ordinance. A reference to section 23‑A itself will reveal that before declaring a person as an intending evacuee the Custodian must have reason to believe that the person is an intending evacuee, that is to say, an intending evacuee within the meaning of subsection (3‑A) of section 2 of the Ordinance. Thus it is not the declaration which makes a person an intending evacuee but the declaration is merely an acknowledgment and an official pronouncement of such a status of a person for the purposes of visiting that person with certain consequences mentioned in the Ordinance. If the Notifica tion intended to refer to such declared intending evacuees only, then it would have said so, for the Notification was made in exercise of the powers given tinder the same Ordinance. The last point urged in this appeal is that before a person can be held to be an intending evacuee it must be shown that on or after the 1st day of March 1947 he had done any one of the acts mentioned in clauses (a) to (c) of subsection (3‑A) of section 2, and that it is for those who seek to make a person an intending evacuee to establish the same or to show either from his own conduct or from documentary evidence an intention to settle in India. In the present case, it is said, that no evidence had been adduced of any such conduct on the part of the deceased Kodumal. It is said that he throughout until the time of his death remained in Pakistan. He obtained a declaration to the effect that he was a non‑evacuee in 1950, and in 1951 he actually obtained permission to bring back his family, and that his family members did actually return to Pakistan on Pakistani Passports in 1954. It is not for this Court to go into questions of fact but Kodumal's own conduct in purporting in 19.18 to make an oral gift of his agricultural lands to his brother, sending away his family to India and then again in 1952 making a will giving away all his properties to his elder brother by depriving his legal heirs did abundantly disclose that he had an intention to leave Pakistan and settle in India, had not death intervened in the meantime. It is also not without significance that his family did not return to Pakistan until the Assistant Custodian had actually turned down the application of the appellant for declaring the properties of Kodumal as non‑evacuee properties. For the reasons given above we are of the opinion that the Tribunal had rightly held that the said Kodumal was an "intending evacuee" at the time he made the will; that by reason of the provision of the Notification of the 10th of January 1950 as amended up to the 8th of May 1951 he was prohibited from making such disposition of his properties and that the will gave no interest in the properties to the appellant. The contention that this would have the effect of declaring the children of Kodumal non‑evacuees, although they have now returned to Pakistan on Pakistani Passports, and are residents of Pakistan, can have no material bearing on this question for, if they are not evacuees now they may claim restoration of the properties as the legal heirs of Kodumal on the basis of intestate succession, although their father had sought to deprive them of their inheritance by creating the will when they were not in Pakistan. This appeal is, in the result, dismissed with costs. A. H. Appeal dismissed.