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Writ Petition No. 270 of 1964, decided on 27th March 1968.

S. 5‑Religious institutions in Punjab‑No general law applicable to such institutions‑Each institution regulated by its own customs and usage‑Members of such institutions governed exclusively by custom and practice of particular institution‑Mahant not owner of property of institution under his control or management‑Lands having passed from Guru to Chela, held, not their personal property but held by them as trustees.

Rattigan's Customary Law, Chap. VI and Vidya Varuthi Thirtha v. Balusami Ayyar and others 48 I A 302 ref.

Ss. 2(3) & 3(1), (2)(b) ‑ Beneficiaries of trust land in dispute having migrated to India‑Such trust land covered by definition of "evacuee property" ‑ Land after Partition, remaining in unauthorised possession and not .approved by Custo dian‑Section 3(1), held, does not operate as bar to declaring such property as evacuee property after 1st January 1957‑Effect of S. 3 nullified by S. 3(2), Displaced Persons (Land Settlement) Act, 1958‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 3 & 14(2).

A. S. Salam for Appellants.

Nemo for Respondent.

Date of hearing : 27th March 1968.

This writ petition under Article 98 of the Constitution is directed against the order, dated tile 1st of December 196 ), of the learned Custodian of Evacuee Property West Pakistan in Revision Petition No. 322 of 1960, which was dismissed in limine.

2. The dispute in this matter relates to agricultural land measuring 207 Kanals and 12 Marlas of Khewat No. 7/7 Khatuni Nos. 133 to 136 and Khewat No. 7, Khatuni Nos. 159 to 170, situated in village, Sham Garb, Tehsil Pakpattan, District Montgomery, recently changed to Sahiwal. According to the petitioners, the land in dispute was originally owned by Harbhajan Das, a Chela of Ghulab Dais. The said Harbhajan Dass, by Mutation No. 34, transferred the agricultural land in dispute by way of tamleek to one Jawahar Dass, his own Chela. It is alleged that the above‑mentioned Harbhajan Dass and Jawahar Dass embraced Islam and respectively adopted the Muslim names as Muhammad Ahmad and Muhammad Murtaza. The petitioners' case is that the two converts to Islam had great love; and affection for them and had embraced Islam solely for this reason but did not disclose their con version to Islam publicly owing to the fear of the Hindu community of the area. It is alleged further that Harbhajan Dass and Jawahar Dass in the year 1944, jointly gifted the land in dispute to the petitioners out of sheer love and affection for them and transferred it to the petitioners, and that the petitioners are in possession of the land since then. After partition of the sub‑continent, the aforesaid Harbhajan Dass and Jawahar Dass openly declared themselves as having embraced Islam and, abandoning the idea of migration to India, decided to remain in Pakistan. Later, however, Harbhajan Dass alias Muhammad Ahmad died in 1950 and Jawahar Dass alias Muhammad Murtaza died in 1952, bath in Pakistan, and their funeral ceremonies were performed according to Muslim rites.

3. The case of the petitioners is that they have been in possession of the land in dispute since 1944. One Khurshid Ahmad, as an informer, made a miscellaneous application to the Deputy Rehabilitation Commissioner (Lands), Montgomery, alleging that the petitioners were in unauthorised possession of the land in dispute, but the Deputy Rehabilitation Com missioner (Lands), by order dated the 29th of June 1957, held that the property was not an evacuee trust property and declined to interfere in the matter. On 6th of August 1959, the Deputy Rehabilitation Commissioner (Lands), Montgomery issued notices, under Martial Law Regulation No. 49, to the petitioners on the allegation that the land in dispute was a concealed pro perty, but, after hearing the petitioners, the notice was discharged on the 19th of September 1959. Before, however, the notices were discharged the petitioners filed an application under section 22 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) (hereinafter referred to as the Act) before the Deputy Custodian of Evacuee Property, Montgomery, for a declaration that the property in dispute was not evacuee and that the possession of the petitioners of the land in dispute was on account of a valid oral gift made by the aforesaid Harbhajan Dass and Jawahar Dass. The learned Deputy Custodian dismissed this petition by his order, dated the 13th of April 1960. Aggrieved as they were, the petitioners took up the matter in appeal before the Additional Custodian of Evacuee Property against the order of the Deputy Custodian. The appeal also having remained unsuccessful, the petitioners went up in revision before the learned Custodian of Evacuee Property which, as already stated, was dismissed on the 1st of December 1960. The contention of the petitioners is that the land in dispute was validly gifted to them. In the alternative, it is con tended on their behalf that the land in dispute was never treated as an evacuee property and could not be declared so as it is not affected by the provisions of the Act. It is on these grounds that the petitioners seek to challenge the orders of the Deputy Custodian, the Additional Custodian and the Custodian of Evacuee Property in the present writ petition before us.

5. The petition, as it stands, is undefended. One Khurshid Ahmad, however, moved an application for being impleaded as a party to these proceedings, but his application was dismissed by us because, it seems to us, he is no longer interested in the land in dispute.

6. In support of the petitioner Mr. A. S. Salam, learned counsel for the petitioners, has urged two points :‑

(1) That the lands in dispute belonged to Harbhajan Dass and Jawahar Dass who, after, embracing Islam before Partition, did not migrate to India and, therefore, the Lands in dispute did not change their status to become evacuee property, and that both Harbhajan Dais and Jahawar Dass having died in Pakistan respectively in 1950 and 1952, the lands in dispute remained vested in them or vested in the petitioners who were transferees from them and could, in no case, be declared as an evacuee property.

(2) That even if the lands in dispute are trust property, they do not assume the status of an evacuee trust property and in such circumstances the Custodian of Evacuee Property had no jurisdiction in the matter.

7. Before dealing with the contentions listed above, it may be stated that the learned counsel for the petitioners was unable to satisfy us that the lands in dispute had been validly gifted in favour of the petitioners in the year 1944. The Deputy Custodian, in the first instance, critically analysed the evidence produced before him in proof of the factum of gift. The petitioners relied on the oral evidence of Muhammad Yar, Muhammad Iqbal, Pir Said Muhammad, Walya and Bakhshaya, including the evidence of one of the petitioners themselves, namely, Abdul Ghafur, but their story was dis believed by the learned Deputy Custodian with the following observations :‑--

"The whole story has been reproduced by the witnesses stud about the delivery of possession they have stated that the donors had visited the village in 1945, that they had announced that the ownership thence forward shall be with the plaintiffs, and that on a subsequent occasion they announced that they had gifted the land to the plaintiffs. There are contradictions as usual between their statements about the sequence and the connecting links. The witnesses are unanimous that at the time of the alleged delivery of possession and the announcement of the gift, the donors were Hindus by faith and had not openly declared themselves Muslims. It means that the gift, if at all created, was from a Hindu in favour of the Muslims and it is doubtful if such a gift could be valid in law. The plaintiffs have all along maintained that they had derived the ownership through the alleged gift which, as observed heretofore, is not valid. The plaintiffs have failed to explain as to why if at all the gifts was created in their favour they did not get their names mutated in the Revenue papers to furtherance thereof. Except the oral evidence of the above witnesses, there is no documentary evidence in support."

One of the documents relied upon by the petitioners is an entry in the Jamabandi of 1956‑57 wherein the lands in dispute are shown to be owned by Harbhajan Dass, Chela of Gulab Dass, caste Sadh Udasi, as an evacuee. In column No. 10 of the Jamabandi the petitioners are shown to be in illegal pos session of the lands in dispute as tenants, paying six times the land revenue. Another document relied upon was the Jamabandi of the year 1942‑43 which showed that a mutation of gift was sanctioned in favour of Jawahar Dass who claimed to be a Chels of Harbhajan Dass. There was no documentary evidence produced as to the gift proper in favour of the appellants. In the absence of any reliable evidence on the question of gift, Mr. A. S. Salam, learned counsel for the petitioners, had no other alternative but to concede that the finding of the Deputy Custodian, as affirmed by the Additional Custodian in appeal and the Custodian of Evacuee property in revision, with respect to the alleged gift is unexceptionable. It is, therefore, indubitably clear that the petitioners are not the owner3 of the lands in dispute, although they are enjoying their possession all right. It is from this angle that we propose to determine the rights of the petitioners in these proceedings.

8. The contention of the petitioners that the lands in dispute cannot be treated as an evacuee property or declared as such has not at all impressed us. Admittedly, the lands in dispute stand in the names of Harbhajan Dass and Jawahar Dass who are Sadh Udasi by caste and the inheritance descends from Guru to Chela. Therr, is ample evidence on the record to show that the property in dispute was mutated in favour of Jawahar Dass in the year 194243 only as a life estate and It was to be inherited according to custom of the sect con cerned by the Chela of the Guru alive on the latter's death. Both the Deputy Custodian and the Additional Custodian have affirmed it as a proposition of law that where an estate is inherited by a Chela from a Guru, it is presumed to be a trust property. The evidence on the record shows that Harbhajan Dass is described in the Jamabandi not by his parentage but as one being a Chela of Ghulab Dass, caste Sadh Udasi. Even the petitioners' case is that Jawahar Dass got the lands in dispute by virtue of his right as a Chela of Harbajan Dass. It cannot, therefore, be doubted that the lands in dispute from time to time passed from Guru to Chela and the pre sumption in such circumstances would be that it was not the personal property of the Mahant but the trust property. It was not disputed before us that according to section 5 of the Punjab Laws Act, 1872, religious institutions are governed by custom. As will appear from the introduction to Chapter VI of Rattigan's Customary Law, there is at) general law applicable to religious institutions in the Punjab and each institution is regulated by its own customs. According to paragraph 84, "the members of such institutions are governed exclusively by the customs and wages of the particular institution to which they belong". It is stated in paragraph 85 that "the office of Mahant is usually elective." This view is also expressed by the judicial Committee of the Privy Council in the case of Vidya Varuthi Thirtha v. Balusami Ayyar and others (48 I A 302) namely, that the law as to these institutions was to be found in customs and practice. According to paragraph 93 of the Rattigan's Customary Law, the rights of a Mahant are that "so long as he retains office, he presumed to have the sole manage ment of the endowment or institution over which he presides." The discussion as to the rights of a Mahant in this book leads one to an irresistible conclusion that a Mahant is in no sense the owner of the property under his control and manage ment. The property invariably belongs to the institution of which he is the Mahant. We are, therefore, satisfies that since in the present case the lands in dispute passed from Guru to Chela, the lands did not belong to them in their personal capacity but were held by them as trustees.

9. In this view of the matter, the next question calling attention is what would be the effect of the death of Harbhajan Dass in 1950 and of Jawahar Dass in 1952. In our opinion, in the circumstances of the present case, after the death of these, two persons the office of Mahant or Guru became vacant and, according to the custom, the lands in dispute were to be inherited by one of the Chelas of the last Mahant. It is not disputed that after the Partition of the sub‑continent all the members of the Sadh Udasi sect of Hindu Religion migrated from Pakistan to India and, thus, there was nobody left in Pakistan to be appointed a Chela from amongst the prospective Chelas of the Sadh Udasi sect. On these facts, the learned Additional Custodian has relied on subsection (3) of section 2 of the Act which is to the following effect :‑‑‑

" (2) Definitions.‑In this Act, unless there is anything repugnant in the subject or context‑

(3) evacuee property' means any property in which an evacuee has any right or interest (Whether personally or as a trustee or beneficiary or in any other capacity, and includes‑

(a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same; or

(b) property of an evacuee obtained by transfer on or after the first day of March 1947, until the transfer is con firmed by the Custodian;

Since the beneficiaries of the trust lands in dispute, one and all, had migrated to India, the definition of "evacuee property", reproduced above, clearly brought within its folds the lands in dispute. In this connection, the learned Additional Custodian of Evacuee Property observed as under:

"It cannot be denied that most of the members of the sect of Sadh Udasi are evacuees, so the property in dispute is evacuee property and vested in the Custodian on 1‑3‑1947. Under section 7 of the Act, it is lawful for the Central Government to appoint by general or special order new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian or in his possession only until such time as the new trustees are so appointed and pending the appointment of such trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible, the purposes of the trust."

It was urged before us by Mr. A. S. Salam that the order of the learned Additional Custodian is self‑contradictory inas much as in the very next breath he has remarked as follows :‑--

"Here, however, we know that the trustees never became evacuees. The Central Government has, therefore, no juris diction to appoint their successors . . . . . . . I, therefore, hold that the property is and has throughout been evacuee property."

We are of the view that these observations of the learned Additional Custodian are not in the least helpful to the petitioners. Since most of the beneficiaries of the trust property to dispute had migrated to India after Partition and on the death of Harbhajan Dass and Jawahar Dass nobody was left to inherit the property in dispute, it squarely became an evacuee property in view of the above provision of law. We are, therefore, satisfied that the Custodian authorities were fully justified in dismissing the petition filed before them under section 22 of the Act.

9. It was farther urged by the learned counsel for the petitioners that the Custodian authorities had no jurisdiction to declare the lands in dispute as evacuee property after the 1st of January 1957, in view of section 3 of the Act. It seems to us that the petitioners, here again, tread on a slippery ground. Section 3 of the Act, referred to above, is to the follow ing effect :‑

"3. Property not to be treated as evacuee property on or after 1st January 1957.

(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee pro perty immediately before the 1st day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.

(2) Nothing in subsection (1) shall apply‑

(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or

(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty‑eighth day of February 1947, has not been accepted or approved by the Custodian."

It will be noticed that sub‑clause (b) of subsection (2) of section 3 ibid bars the application of subsection (1) of section 3 to a property which is occupied, supervised or managed by a person whose authority or right so to do after the 28th of February 1947, has not been accepted or approved by the Custodian. Admittedly, the lands in dispute are in unauthorised possession of the petitioners and their control and management has not been approved by the Custodian. It is, therefore, abundantly clear that section 3 of the Act has no application to the present case. Moreover, as pointed out by the learned Additional Custodian, the effect of section 3 of the Act is nullifield by sec tion 3(2) of the Displaced Persons (Land Settlement) Act (XLVII of 1958). The subsection lays down that " any such property as referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, be treated as evacuee property, and shall vest and be deemed to have vested in the Custodian in accordance C with the provisions of subsection (1) of section 7 of that Act". We agree with the learned Additional Custodian that this is a complete answer to the contention of the petitioners that the lands in dispute cannot now be treated as evacuee property in view of the provisions of section 3 of the Act.

10. On the view that we have taken of the matter, it is clear to us that the lands in dispute vested in the Custodian of Evacuee Property under section 7 of the Act after the death of Harbhajan Dass and Jawahar Dass and they being trust properties will be administered in accordance with the scheme prepared by the Chief Settlement Commissioner under section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, read with section 14(2) of the Dis placed Persons (Land Settlement) Act, 1958.

11. As a last resort, Mr. A. S. Salam, for the petitioners, urged that the petitioners shall feel contended if the direction of the learned Additional Custodian that the Rehabilitation Authorities should take over the lands in dispute on behalf of the Custodian is set aside on the ground that it is ultra vires, and that the parties should be left to agitate the matter before a civil Court. The argument is misplaced. The lands in dispute having been held as evacuee trust properties, will now be subject to the management and control as provided by the scheme prepared by the Chief Settlement Commissioner under section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, read with section 14 (2) of the Dis placed Persons (Land Settlement) Act, 1958, and the direction of the learned Additional Custodian is thus unexceptionable.

12. In the result, subject to the observations made above, this petition is dismissed with no order as to costs.

A.E. Petition dismissed.

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