1969 PLP 660 (SCMR)

It should be mentioned that Girdhari Lai had asked for a declaration that he was not an evacuee, and his property had wrongly been treated as evacuee property and that Major Muinauddin expressly held that Girdhari Lai was not an evacuee. The Iranian Restaurant moved the Additional Custodian for a review of this order. The questions which arose in the review application were formulated in four issues, namely, whether Bharumal was declared an evacuee, whether he had any other heir besides Girdhari Lai, whether the properties in Baluchistan were declared evacuee property and whether the Custodian was competent to interfere with the arrangement between the Iranian Restaurant and Bharumal. The Additional Custodian held that Bharumal never "acquired the status of an evacuee" as defined in Balushistan Regulation No. 1 of 1950 and that he had another son Chitan Das. After his death however, the joint Hindu family was composed of Girdhari Lai and his two sons and Chitan Das who had no son. Holding that the majority of the members of the joint Hindu family lived in Pakistan and were therefore, to be treated as non‑evacuee, the Additional:: Custodian proceeded to find that the Custodian is not competent to assume control and management of the whole of the property of Hirdaram Bharumal." He also found that there was a certificate issued by the Custodian to which reference has already been made, declaring the property of the firm Hirdarma Bharumal as non‑evacuee property. Later a part of the property had been treated as evacuee property by the Custodian, but the Additional Custodian was unable to ascertain the circumstances under which this had been allowed to happen. He held however that the properties situated in Baluchistan had never been declared to be evacuee properties. As to the agreement about the Iranian Restaurant, he held that it "ceased to have any value at this stage and is null and void". Accordingly, the application was dismissed, and the Iranian Restaurant next moved a revision petition before the Custodian at Karachi. In the course of the argument before the Custodian, a. question which arose for consideration was whether the Iranian Restaurant property was ancestral or self‑acquired property of Bharumal; and the Custodian (Mr. Mansur Alam) accordingly remanded the case to the Additional Custodian for evidence and. a finding on this point. The case was taken up by Mr. Shamshad Hussain, Deputy Custodian at Quetta, who received evidence on. behalf of the Iranian Restaurant only, as none was produced by Girdhari Lal. The evidence showed that the property had beer bought by Bharumal in 1932 and‑ had been mutated in his name. Upon this evidence, the Deputy Custodian should have simply reported in response to the order or remand that the property in question before the Custodian at Karachi was no ancestral property in the hands of Bharumal. The Deputy Custodian however, went further and on his own responsibility made declarations regarding the status of Bharurnal as well as each of his sons in the manner appearing from the passage quoted below "On the other hand, the documents Exhs. 1‑2 produced before me lead to the inference that the property was the self‑acquired property of the late Bharumal and if this position is maintained the property would have normally devolved in equal shares on the two sons of Bharumal as per pedigree above, but as Bharumal having become evacuee in 1949 and died in Bharat the property became evacuee and the sons have thus lost all rights of inheritance. Chitan Das one of the sons is already an evacuee while the other son Girdhari Lal is a non‑evacuee." The report was taken up for consideration by Mr. Muhammad Bakhsh Memon who had succeeded Mr. Mansur Alam as Custodian. In a short order, the Custodian noted that the following facts were admitted, namely, that the property was self‑acquired property of Bharumal, that Bharumal had died in India in September 1948 after the Partition, and that Bharumal lived in India for 8 months before his death. He accordingly confirmed the conclusion of the Deputy Custodian that 13harumah had died‑ as an evacuee in India, and therefore his property its Baluchistan was evacuee property, and vested in the Custodian under the Acts in force. Against this order of the Custodian, a writ petition was moved in the High Court, in which it was denied that it had ever been admitted that the Iranian Restaurant property was self‑acquired property of Bharumal, and it was asserted that all die immovable properties were properties of the joint Hindu family. It was further averred that Bharumal was never proved to have been an evacuee as defined in Baluchistan Regulation No. 1 of 1948 which was in force at the time of his death and for more than a year after. It was contended that the order of the Additional Custodian dated the 20th October 1948 certifying the properties of Bharumal to be non‑evacuee properties was final and binding and "the learned Custodian had no jurisdiction to ignore or review the same". The petition was grounded upon, allegations of errors apparent on the face of the record. Affidavits and counter affidavits were filed by both sides, and it is of some importance to note that in an affidavit dated the 22nd November 1958, Abdul Khaliq, proprietor of the Iranian Restaurant made an important admission in the following terms :‑ "the documents show that the properties belong to. individuals mentioned therein out of whom one died before 15‑8‑1947, and the rest became evacuee with the only possible exception of Seth Girdhari Lal." Before the Division Bench in the High Court the contention was raised that since Bharumal had died in September 1948, his, status, whether evacuee or non‑evacuee fell, to be determined with finality under the first Regulation of 1948, which defined an evacuee as the owner of property having the character of evacuee property, and defined evacuee property as property which owing to the recent disturbances the owner could not personally occupy, or supervise, or could not take delivery of from its place of deposit or which being an asset of a business. or an undertaking, such business or undertaking had ceased wholly or partially to operate owing to the said disturbances. It was pointed out that the next Regulation of 1950 adopted a wholly different scheme for the determination of the status of evacuee and of evacuee property, namely, the scheme of Ordinance XV of 1949 which applied to the whole of Pakistan. On the facts, it was asserted that Bharumal had gone to Bikaner as was. his practice to avoid the severity of winter in Quetta. He stayed about 8 months, being overcome by his last illness, and died in Bikaner in September 1948. It was said that his visit to Bikaner had nothing to do with the disturbances and as for his properties, they were being looked after as before. The Division Bench however rejected this contention. They did so on the ground that in the later Regulation of 1950, all evacuee properties were to vest in the Custodian and to be deemed to have vested in the Custodian as from the 1st March 1947. Referring to the definition of an evacuee in 1950 Regulation, the learned Judges observed that counsel for Girdhari Lal "had to admit before us that if this definition evacuee is applied to the case of Seth Bharumal he was an evacuee indeed and the property left by him was also evacuee property", They thought it was fallacious to argue that a person "who had died after the creation of Pakistan and who had been residing in any place in the territories of India at the tine of his death cannot be dealt with under the provisions of Baluchistan Administration of Evacuee Property Regulation No. 1 of 1950". They thought it was sufficient for the purposes of that Regulation that the person should have left Pakistan and should have been residing an India immediately after the Partition to produce the result that his property became vested in the Custodian as from the 1st March 1947; and they asked the question how the property so vested in the Custodian could be inherited by any percale, they noted that the status of Bharumal had never been declared under the earlier evacuee law, but found as a fact Custodian had taken possession of his property before the 1950 Regulation came into force. They had noted earlier the fact that the authorities had restored possession of various properties to Girdhari Lai, but in the concluding portion of their judgment they thought it sufficient to point out that the piece of property in question before the Deputy Custodian had been found to be Bharumal is self‑acquired property acid they went on to observe as follows :‑ "Thus, there is nothing to show that the impugned artier in any way disturbed what has been perfected." The point was raised before the Division Bench that the Iranian Restaurant had never led evidence regarding the no‑ancestral character of the property not in their possession and that the Custodian's order could not therefore extend to the entire property. The learned Judges found that the order of the Custodian was vague on this point, but they left it a Girdhari Lai to raise the matter before the Custodian in an appropriate proceeding. Mr. Brohi has challenged the correctness of this decision on the ground that the finding of the Deputy Custodian that Bharumal died as an evacuee was firstly outside the reference made to him, which was solely on the question whether the Iranian Restaurant property was ancestral or self‑acquired of Bharumal, and secondly that it was based on no evidence at all. The Deputy Custodian had ignored the fact that Major Muinuddin in his first order had declared the status of Girdhari Lai and in his second order had declared the status of Bharumal and that these were orders by an Additional Custodian; which could not be reversed by the Deputy Custodian. This point had escaped the attention of the Custodian, Mr. Muhammad Bakhsh Memon, who proceeded to confirm the Deputy Custodian's finding regarding Bharumal, without considering whether the question at all arose in the revision rotation against the second order of Major Muinuddin. It was true that like the Deputy Custodian in his later order, and Mr. Muhammad Bakhsh Memon in the final order, Major Munuddin also had had before him the provisions of Regulation of 1950 when he declared that Dharumal never acquired the status of an evacuee. But that did not affect the true position, namely, that the status of Bharumal acquired finality from the fact of his death in September 1948, and it fell to be determined under the law then prevalent and under no subsequent law. Mr. Brohi contended that if the Regulation of 1948 were applied, it would be clear that Bharumal's property did not have the character, during his lifetime, of being evacuee property, and therefore he was himself not an evacuee. The question had never been looked at by this point of view by any of the authorities under the evacuee laws, who have dealt with the case so far, and this was an error apparent on the face of the record sufficient to justify the issue of a writ of certiorari to quash the proceeding of Mr. Muhammad Bakhsh Memon dated the 13th September 1953. The argument appears to us to be answerable, and nothing which Mr. Yahya Bakhtiar could say has any effect upon the legality, of the contention. There is a fundamental difference between the scheme of the Regulation of 1948 and that of the Regulation of 1950 for the differentiation of evacuee property from non‑evacuee property, and it is in our opinion a clear error to apply the scheme of the 1950 Regulation for determining the status of a person who had died before that Regulation came into force. From the moment of Bharumal's death, rights in the property become vested in his heirs of whom at least one namely, Chitan Das was plainly an evacuee White another Girdhari Lai, had a declaration in his favour that he was not an evacuee, which declaration could possibly endure in favour of Girdhari Lai's two sons as well. To the extent that the property devolved on an evacuee on the death of Bharumal, it became vested in. the Custodian, but if Bharumal was not an evacuee at the tithe of his death and if Girdhari Lai also was not at that time or at any subsequent time an evacuee, then the clear possibility is that the shares other than that of Chitan Das never vested in the Custodian. The exact determination of the successors would very according as the property was ancestral or self‑acquired in the hands of Bharumal. These are considerations which require to be examined for a full and proper decision on all questions arising, in the revision petition from Major Muinuddin's second order and in our opinion they cannot be left for decision, as was suggested by the Division Bench in a further proceeding to be commenced by Girdhari Lai. The order of Mr. Muhammad Bakhsh 'Memon which was impugned in the writ petition appears to us to be based upon a clear misunderstanding of the relevant law, and we accordingly allow this appeal, and direct that an appropriate writ should issue to quash that order. Since the error in the case is traceable to misdirection by themselves of the authorities concerned, we leave the parties to bear their own costs. Appeal accepted.