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Civil Miscellaneous Nos. 2016/C and 5072‑L of 1980, ,decided on 23rd July, 1986.
‑‑ S. 11‑Scope and application of S. 11.
Section 11 of the Administrator‑Generals' Act, 1913 empowers the High Court to direct the Administrator‑General to collect and take posses sion of the assets and to perform, subject to the directions of the Court, other acts mentioned in the section, when any person has died leaving assets within the jurisdiction of the Court and on attaining satisfaction that there is no person immediately available who is legally entitled to succeed to such assets or that danger is to be apprehended of misappropria tion, deterioration or wastage of such assets before it can be determined who may be legally entitled to succession or whether the Administrator- General is entitled to Letters of Administration of the Estate of such deceased person.
Section 11 of the Act was introduced so as to empower the Administrator‑General to apply for Letters of Administration of any Estate which may be committed to his charge temporarily, pending the inquiry into the entitlement of the persons entitled to succeed. In case the inquiry yields the result that none exists to succeed under law, then the relevant authority or the Collector can proceed to take over the property as escheat to the Provincial Government or the Federal Government as the case may be under Article 172 of the Constitution. The inquiry held under Act III of 1913 is to serve as on the modes to determine that a certain property has no rightful owner and as such is to vest in the Provincial Government if located in the Province. This mode provides safe basis for the Collector to collect, realize or recover such property from unauthorised hands, if any.
When a direction to collect, realize or recover the assets under sec tion 11(i) of the Act is made, the Administrator‑General will take over straightaway the custody or possession of the assets respecting which no dispute is raised but for collecting, recovering and realizing those assets respecting which any claim is made or a, dispute is raised and his right or authority to take over the custody or possession is challenged, he will have to act in accordance with law and where necessary to institute a suit or to initiate appropriate proceedings before appropriate forums. Likewise any party possessed of necessary locus standi can also institute proper proceed ings before appropriate forum so as to establish its claim over any such property. This is clear from the reading of subsection (2) of section 11 and the Scheme of the Act.
‑‑ S. 11‑Fact that one son of deceased owner of Estate was dead and the whereabouts of other two were not known, established- Apprehension of misappropriation of wastage of assets could not be refuted‑Failure of succession and fact that none was entitled to inherit estate also proved‑Necessary foundation for applying provi sions of S. 11, held; were laid and established in circumstances.
‑‑ Ss. 2(1) & 11‑Succession Act (XXXIX of 1925), S. 147‑Assets Definition‑Where residue or bulk of property is left en masse and it is given to several persons in succession as tenants for life and remainder men, it is the duty of Court to carry into effect apparent intention of testator‑Executor has not to act contrary to the intent of testator‑Administrator‑General is equally bound to secure interest of heirs in situation contemplated by Statute so that devolution and distribution of property could be regulated in accordance with the will if any or in accordance with law.‑[Words and phrases].
Howe v. Lord Dartmout 7 Ves. 137 ref.
‑‑ Ss. 59 & 60‑Presumption‑Unless presumption is rebutted fact that attorney had acted under a proper power‑of‑attorney has to be presumed.
Under section 60 of the Registration Act, 1908 presumption that the document was duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in section 69 had occurred as mentioned therein arises and consequently unless this presumption is rebutted the fact that the attorney had acted under a proper power‑of attorney has to be presumed.
Malik Aazam Rasool for Appellant.
Nemo for Respondents Nos. 1, 2, 11, 26 to 28, 48, 49, 51 and 52.
Kh. Saeeduz Zafar for Respondents Nos. 3, 4, 6 and 9.
Nasim Ahmad Khan for Respondent No. 7.
Respondents No. 8, 10 and 13 in person.
Muhammad Tayf for Respondent No. 10.
Amjad Masood for Respondent No. 11.
Rafiq Ahmad Bangash for Respondent No. 55.
Sardar Sami Hayat for Respondents Nos. 57 and 58.
Dates of hearing : 3rd, 10th and 17th May, 1986.
The Administrator‑General Punjab instituted these proceedings by filing a petition under sections 11 and 28 of the Administrator‑General's Act III of 1913 and section 253 of the Succession Act, 1925, seeking the directions‑
(i) to take over the temporary charge of the properties as per provi sions of the aforesaid laws ;
(ii) to apply for Probate or Letter of Administration of the estate after full or necessary inquiry as to the true value or nature of the estate; and
(iii) to retain out of the assets of the estate any fee chargeable under the rules made under the Act and to reimburse himself for all pay ments made or the expenses incurred in respect of the collection, protection and realization of the property.
It may be noted that in this petition. Albion House has been described erroneously as property No. S. 19. R. 86, because this number has been assigned to only one of the buildings of the Albion House which admittedly consists of many other buildings to which different numbers have been assigned in the Property Tax Record.
2. The Administrator‑General filed the other petition (Civil Misc. No. 5672‑L‑1980) wherein after giving details of the inquiries made by him about the whereabouts of the three brothers, namely, Mr. Stanley Charles William Rose, Mr. Henery Maurico Rose and .Mr: Frederick St. John Rose, and of their heirs, if any, it was averred that from the inquiries made, it was clear that the aforesaid three brothers were not alive, but before filing petition for Letters of Administration in this Court it is necessary that property is taken back from illegal occupants as well as from transferees who have, with the connivance of the Settlement Depart ment, got the property transferred in their names although they were aware of the fact that this was not evacuee property. With these averments, it was prayed that notices be issued to :‑
(i) the Member (Settlement) Board of Revenue, to show cause as to how the Settlement Department transferred the portions of properties in question to different claimants white they were aware that the property is not evacuee property ;
(ii) the transferees and occupants as per details given in the Surveyor's Report to show their eligibility to occupy the property and if found ineligible, after cancelling their allotment/transfers, direction be passed to have the property vacated through police force.
It was further prayed that Administrator‑General be directed to apply for Letters of Administration after the completion of the above action and in the meantime, interim powers to held the above property be granted. This Court vide order, dated 16‑9‑1980 directed issuance of notice to the trans ferees, occupants and the authorities mentioned in this petition. Pursunant thereto, the Settlement Authority, the transferees and occupants joined the proceedings and filed written statements.
3. These petitions were filed and the aforesaid directions were sought as it came to the notice of the Administrator‑General on the moving of an application by Abdur Razzaq, an occupant, that property known as Albion House belonged to the aforesaid three brothers in equal shares. It was further stated in the petition on the basis of information received that this property known as Albion House, Upper Mall, Lahore was leased out for 50 years in 1919 to one Mr. Kawasha Dossabbo Wadia Proprietor of M/s. Bombay Cycle and Motor Agency and then in 1936 the Lessee assigned his rights in the said property for the remaining period jointly to Diwan Ram Lal Sardar Amar Singh, Sardar Sapuran Singh Chawala and Pandit Krishan Bal. As the lessee (K. D. Wadia) had granted sub‑leases to M/s. Kirpa Ram and Brothers, M/s. Regal Theatres Ltd. and M/s. Lahore Boot House of different portions of property before the assignment of rights under the deed, dated 18‑12‑1936, these sub‑leases were excluded from the operation of the deed of assignment. It was also stated in the petition that after Partition the property was taken over firstly by the Rehabilitation Department presuming it to be an evacuee property and latter by the Settle ment Department and the same was transferred to various transferees. The petitioner pleaded that on the expiry of 50 years' lease in 1969 the property i.e. Albion House Upper Mall Lahore, automatically reverted to the owners whose whereabouts were not known and that in the revenue record the property continued to be recorded in the names of the British Subjects. It was also pleaded that the aforesaid three brothers, the original owners, were neither alive nor any of their legal heirs resided in Pakistan and as the inquiries which were being conducted were to take a considerable time to conclude it was necessary in the meanwhile to take over the entire property for the benefit of the owners/beneficiaries, if any, residing in Pakistan and to protect the said property from all apprehended dangers of misappropriation, deterioration and wastage pending the determination of the questions whether any of the above‑named three owners was alive, whether any legal heir exists and if so an application for probate of any Will or in its absence Letter of Administration has to be submitted.
4. These proceedings were contested by various transferees to whom the various properties and portions of buildings originally owned by the British Subjects were transferred by the Settlement Department. Some of the persons who are in occupation of the buildings also joined these pro ceedings claiming that they are necessary parties as the question of right, interest and title of the transferees is under adjudication.
5. M/s. Mahmood A. Bakhsb, Saeed A. Bakhsh and others, the transferees of property No. S‑19‑R‑86 commonly known as Kirpa Ram Building, 63‑The Mall, Lahore, one of the properties of Albion House, besides raising preliminary objections to the maintainability of the petition and to the jurisdiction of the Court to make the directions prayed for in the petitions under Act III of 1913 contended that there was nothing on record to show that complete alienation of the property was not made by the persons concerned during 50 years in question. It was added that at the relevant time immovable property could be sold through deeds which could be registered in any of the presidency towns regardless of the location of the immovable property and the property in question could be alienated completely in favour of these very lessees during the stipulated period of lease by having the deeds registered anywhere in British India. The plea that the property in question would automatically revert to the owners at the expiry of 50 years period was controverted by placing reliance on clauses 3, 8 and 9 of the Lease Deed, dated 14‑2‑191.9. The main plea on merits raised was that the property in question was not owned by the three persons named in the application as nothing definite in support of this plea was either urged or referred to. It was further contended that no occasion arose for making an application for grant of Letter of Administration as the property in question already stood was governed by the Will of Mrs. Mary Rose and Mr. Stanley Charles William Rose was acting as an executor of the estate in question. The other transferees of the property in these replies have raised the pleas similar to the ones noted above.
6. The Settlement Department in its reply raised preliminary objec tions to the effect that as the property in question stood acquired, treated and dealt with as evacuee property, no civil or revenue Court or other authority except the Custodian has any jurisdiction to proceed on the basis that the said property was not evacuee property ; that the direction sought as to taking over of the possession of the property without first obtaining the declaration from the Custodian that the property in question is non‑evacuee property, is misconceived in law ; that the property in dispute automatically stood acquired under the Displaced Persons (Com pensation and Rehabilitation) Act, 1958 and having already been trans ferred, this Court cannot intervene in exercise of its original civil jurisdiction in the matter in view of the various provisions contained in the aforesaid Statute ; and that the Administrator‑General can be per mitted to act only for the benefit of the heirs of the deceased owners of the property but in the petition moved by him nothing has been urged to suggest that the deceased owners have left any heir at all. It was pleaded that in the circumstances, the Administrator‑General cannot be given the possession of the disputed property for his own benefit because in the event of failure of succession the property shall stand escheat in favour of the State and the application under section 11 of Act III of 1913 would not lie.
7. A specific reference to the written statement of Ifzal Hussain and Mahmood Hussain respondents Nos. 29 and 32 may be made. These respondents in their written statement pleaded that section 11 of Act III of 1913 applies only to property of a deceased person but as the owners of the properties in question are not known to be or affirmatively stated to be dead, the petition as made is not maintainable and that they do not hold any interest in that property bearing No. S. 19 R. 86 The Mall, Lahore and as such the petition is not maintainable against them. No reply was given of paras 1 to 11 of the petition. It may be noted here that in the petition moved by the Administrator‑General the number of the property in some of the paras. was given as S. 19. R. 86. This property was admittedly one of the properties of Albion House which comprises of various buildings which have been assigned different property numbers in the Property Tax Record. The property claimed by these respondents i.e. Property No. S. 19. R 78 admittedly forms part of the Albion House i.e. the estate left by Mrs. Mary Rose.
8. On the basis of the pleadings of the parties 8 issues were framed on 14‑3‑1984 and the matter was adjourned for the framing of further issues, if any, on 17‑3‑1984 as one of the counsel was not then present. On 17‑3‑1984 one more issue was added. The issues finally framed read as under :‑
(1) Whether the petitions, as framed, are not maintainable O. P. R.
(2) Whether the properties subject‑matter of the petitions are the "assets" belonging to the three persons named in the petition within the meaning of Act III of 1913, if so, what directions need be passed O. P. P.
(3) Has the right, title or interest of Stanley Charles William Rose and Fredrick John Rose in the property in question extinguished by operation of law or otherwise
(4) Whether the petitions filed by the Administrator‑General are mala fide
(5) Is the will of Mrs. Mary Rose, dated 16‑6‑1903 still operative. Does it bar the Administrator‑General from seeking direction from this Court
(6) What is the effect of treatment of the properties in question as evacuee properties and their transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1956 on the right, title or interest of the owners of the property in dispute
(7) Are the transferees the only necessary and proper parties (Onus on transferees/respondents)
(8) Whether the tenants under transferees are necessary or proper party to the petitions
(9) Whether the persons mentioned in issue No. 3 are evacuees, if so, what is its effect
(10) Relief.
9. Before dealing with the issues, it is appropriate to give the history of the estate in dispute with reference to the various transactions entered into and affecting the properties constituting the estate, in one way or the other. These facts have emerged from the evidence produced by the parties in these proceedings and it appears that at the time of initiation of proceedings neither the Administrator‑General nor the Settlement Department nor the transferees nor the occupants of the properties were aware of the correct facts and of the transactions entered into respecting the estate in dispute. It was due to this reason that in the petition filed by the Administrator -General and the replies filed by the respondents, many important facts and pleas were not taken. According to the evidence produced by the parties on record, the estate in question was originally owned and, possessed by Mrs. Mary Rose who had three sons, namely. Mr. Stanley Charles William Rose, Mr. Henry Maurice Rose and Frederick St. John Rose and two daughters, named, Winifred Lydia and Mrs. Gladys May Hill. Winifred Lydia had two daughters namely, Eric Charles Stuart Dawe and Sheila Winifred Adams. The other daughter, namely, Gladys May Hill had one son named Earnest Charles Hill and. one daughter named Greda Mary Clear Hill. The aforesaid Mrs. Mary Rose made a Will dated 16‑6‑1903 with respect to the estate situated in Donald Town, Upper Mall, Lahore estate included Albion House which was earlier known as Pollock House. At the time of execution of Will. the area with its structures and land attached thereto under the Pollock House/Albion House was on lease with a Firm of Outfitters named Phelps & Co. According to the recitals of the Will, the entire estate of Mrs. Mary Rose was delineated on a plan attached with lease deed of the aforesaid Phelps & Co. A certain area delineated by the letters A, B, C and D therein indicated that piece of land which was not included in the lease of Phelps & Co.
10. Mrs. Mary Rose, under the Will, dated 16‑6‑1903 (Exh. P. 36) bequeathed the area of land delineated by letters A, B, C and D to her three aforementioned son; absolutely in equal shares. The land with super structures leased to Phelps & Co., was bequeathed by Mrs. Mary Rose with the stipulations that the Executors and Trustees named by her shall stand possessed of the same for paying half part or share of its rents, profits and other income arising therefrom to her youngest son namely Frederick St. John Rose during the term of his natural life or until he be in receipt of monthly income of not less than Rs. 200 and on the death of the said son or on ceasing of his interest, the trustees were required to pay the said share of rents or profits or income to the daughter named Winifred Lydia Dawe wife of William Stuart Dawe during her life and from and after the death of their survivors i.e. Winifred Lydia Dawe and son Frederick St. John Rose or ceasing of the interest of the said son whichever‑happens last, the Trustees shall be possessed of the said half part or share upon trust for all the children of the said daughter Winifred Lydia Dawe who being sons shall attain the age of 18 years or being daughters shall attain that age or marry, in equal share. It was further provided in the Will that if there was no such child of the said daughter Winifred Lydia Dawe then the laid half share of the‑ rents or profits of said shop or business premises will be held in trust for the three sons who shall hold the same in equal shares absolutely. The other half share in the said premises shall be held by the trustees to pay the rent, issues and profits and income arising therefrom to the other daughter namely Gladys Mary Rose during her life and after her death, to her children who being sons shall attain the age of 18 years or being daughters shall attain that age or marry, in equal shares and if there be no such child, then the said share shall be held by the trustees far the said three sons equally. The other details mentioned in the Will being unnecessary need not be stated.
11. The Letter of Probate (Exh. P. 33) in favour of Stanley Charles William Rose one of the Executors on the basis of Will of Mrs. Mary Rose was issued vide order, dated 11‑2‑1905 (Exh. P. 32).
11‑A. In pursuance of the Letter of Probate and in the capacity of the Executor, Mr. Stanley Charles William Rose executed lease‑deed dated 14‑2‑1919 (Exh. P. 3) in favour of Mr. K. D. Wadia, Proprietor of Bombay Cycle & Motor Agency Ltd., leasing out the property known as Albion House situated over an area of approximately 28 Kanals and 5 Marlas for a period of 50 years. The conditions contained therein permitted putting up of structures by the lessees who after termination of the lease period were to have first option to purchase the land underneath. The costs incurred of all these superstructures were also agreed to be paid back to the lessees under the term and conditions stipulated in the lease- deed. There were, however, no clauses permitting grant of sub‑lease by the lessees. On.30‑1‑1920 Mr. K. D. Wadia, the lessee through a deed of assignment assigned his lease rights in favour of Bombay Cycle and Motor Agency Ltd. This company by separate sub‑leases dated 4‑4‑1927 (Exh. P. 4), 25‑11‑1927 (Exh. R. 18) and 4‑6‑1933 leased out respectively to Messrs Kirpa Ram and Brothers. Belu Ram & Sons of Regal Theatres Ltd., the respective portions of the premises to the aforesaid sub‑lessees till the end of the lease period at the mostly rent of Rs. 300, Rs. 150 and Rs. 612. Messrs Belu Ram & Sons sub‑lessee executed a further sub‑lease dated 15‑3‑1932 (Exh. R. 17) in favour of Sh. Ghulam Jilani and Sh. Ghulam Samdani at the monthly rent of Rs. 150. Thus, Sh. Ghulam Jilani and Sh. Ghulam Samdani (the predeces sors‑in‑interest of respondents Nos. 29 and 32) came to be substituted in place of Messrs Belu Ram & Sons and the property leased out to Sh. Ghulam Jilani and Sh. Ghulam Samdani for the purpose of identifica tion came to be mentioned as Lahore Boot House. Then on 18‑12‑1936 Messrs Bombay C3cle and Motor Agency Ltd., which had received rights through deed of assignment, dated 30‑1‑1 20 transferred and conveyed their rights by executing a deed of assignment (Annexure E' to the petition) in favour of Mr. Justice Diwan Ram Lal, Sardar Sampuran Singh Chawla, Raj Krishan Bal and Amar Singh. In 1939 sale‑deed, dated 18‑2‑1939 (Exh. R. 1) was executed by Mr. Homi Jehangir Rustomji, General Attorney of Winifred Lydia Dawe, her son Eric Charles Stuart Dawe and daughter Sheila Winifred Adams, Gladys May Hill her son and daughter Earnest Charles Clear Hill and Miss Greda Mary Clear Hill and Mr. Stan ley Charles Rose in favour of Mr. Justice Diwan Ram Lal, Sardar Sampuran Singh, Sardar Amar Singh and Raj Krishan Bal. This sale‑deed was in respect of Albion House measuring 28 Kanals and 5 Marlas. This sale‑deed, it appears, was not got incorporated in the revenue record, though the deeds of assignment and the various leases executed in respect of the property constituting Albion House do find mention in the revenue record. In 1947, the Partition took place. The properties comprised in the estate known as Albion House except the building subject‑matter of the sub‑lease, dated 15‑3‑1932 made in favour of Sh. Ghulam Jilani and Sh. Ghulam Samdani came to be treated as evacuee properties and allotment orders were issued in favour of various persons by the Rehabilita tion Department. On the enforcement of Settlement Laws, the leased properties were transferred to the various occupants and to the other transferees, the respondents in the petition. The building, subject‑matter of sub‑lease of Sh. 6hulam Jilani and Sh. Ghulam Samdani, was, however, neither treated as evacuee property nor was transferred under the Settle ment Laws and is to possession of the heirs of Sh. Ghulam Samdani. It is alleged that on partition of the properties between the two brothers, namely, Sh. Ghulam Jilani and Sh. Ghulam Samdani, this property fell to the share of Sh. Ghulam Samdani. This building which was described in the record earlier as Lahore Boot House and later on as Amin Building was assigned property No. S‑19‑R‑78, in the Taxation Record.
12. Now I propose to dispose of the issues as under:‑
Issue No. 1:
None of the learned counsel for the respondents addressed any argu ment with respect to the objection as to the non‑maintainability of the petition in the present form. This issue was framed on the basis of the objection raised by Dr. Basit, learned counsel for Mahmood Bakhsh and Mst. Surraya and others. The position taken by him during the argu ments was that these petitions be decided on merits and that the rights of the parties in the properties in question be settled on the basis of the evidence available on record as in other proceedings held in respect of the property before any other authority this evidence was not then available. In these circumstances the issue is decided against the respondent.
Issues Nos. 2 and 3:
As common questions arise for determination in these two issues, the same are being dealt with together. The properties were surveyed under the order passed by this Court and the report of the Surveyor along with the plan prepared by him shows that the properties in question stand constructed over 28 Kanals and 5 Marlas approximately. According to the lease‑deed dated 14‑2‑1919 (Exh. P.3), area of Albion House was 28 Kanals and 5 Mayas comprising of Khasra Nos. 1863, 1864 and 1869 as per Jamabandi for the year 1912. In the sale‑deed dated 18‑2‑1939 (Exh. R. 1) again area of Albion House is given as 28 Kanals and 5 Marlas comprising Khasra Nos. 2688 and 2698 as per jamabandi for the year 1933 34. Reference to Khasra award for the years 1945‑46 (Exh. P. 2) would show that as against Khasra No. 2690, Khasra Nos. 2157, 2158, 2159, 2160, 2161, 2162, 2164, 2165. 2166, 2168 and 2169 were assigned and for Khasra No. 2688 the new Khasra number was 2171. These Khasra numbers measure 28 Kanals and 5 Marlas. It may be pointed out here that as per the entries of Khasra award for the year 1945‑46, Stanley Charles Rose and others held share in Khasra No. 2170 (old Khasra No. 2689) also alongwith Hindu owners. It will be recalled here that in the Will besides Albion House which was on lease with Phelps & Co. there was some other area delineated A, B, C and D The area of Khasra No. 2170 may be referable fully or partly to the area earmarked as A, B, C and D in the Will. This can, however, be determined by looking into the revenue record since 1913 to date but the same has not been made available in these proceedings.
The case of the transferees from the Settlement Authorities was that the sale‑deed (Exh. R. 1) having been executed by Stanley Charles Rose in his personal capacity as well as the executor under the Will (Exh. P. 16) alongwith the two daughters and their children the properties of tier Albion House came to vest fully and absolutely in the Hindu purchaser and as such the estate of Mrs. Mary Rose i. e. Albion House cannot be considered to be the "assets" belonging to the three sons named in tile petition within the meaning of Act III of 1913 and hence no question of making any of the directions as prayed for, arises. Ch. Khurshid Ahmad Advocate, learned counsel for the heirs of Ghulam Jilani respondents Nos. 29 and 32 submitted that these respondents as well as their predeces sors‑in‑interest though were purchasers of superstructure and had entered the building bearing Property No. S‑19‑R‑78 under the sub‑lease yet they having exerted rights as full owners since 1932 as against the English gentlemen, were entitled to claim adverse possession and so full rights of ownership in the land underneath came to vest in them through prescrip tion much before Partition.
As regards the land underneath, the plea advanced was that whatever interest vested in the original owner i. e. Mrs. Mary Rose or her heirs, the same came to vest in the Central Government by virtue of the Evacuee Laws enforced in view of the purchase of these rights made by the Hindu. The evidence produced by these respondents comprises of the statements made by Asghar Ali (P. W. 3), Sh. Ghulam Mohy‑ud‑Din (R. W. 5) and Mahmood.ul‑Hassan (P. W. 6). The documents referred to during arguments were lease‑deed, dated 14‑2‑1919 (Exh. P. 3), sub‑lease (Exh. R. 17), and sub‑lease (Exh. R. 18). In short the plea raised was that neither the properties in question can be called "assets" under section 2. nor sections 11 and 28 of Act III of 1913 in any way apply.
The case of the Administrator‑General and the occupants was that the sale‑deed (Exh. R. 1) is ineffective in law to convey the right, title or interest in the property to the evacuee owners in view of the inherent contradiction inaccurate factual statements contained in the deed itself and due to legal incompetence of the executants of the deed. Mr. Abid Hassan Minto, Advocate, in support of this assertion submitted that the sale‑deed assumed as if the two daughters of Mrs. Mary Rose and their children were possessed of title in the property as owners whereas the factual and legal position is that under the Will, the two daughters had only life interest and their children held limited contingent interest, and hence they could at host sell the interest held by them. It was added that a fraudulent transaction was brought about by the Attorney whose authority or power to act or dispose of property remains unknown as the Powers of the Attorney on tile basis of which he executed the sale‑deed and purportedly conveyed the rights were not produced in evidence. It was submitted that these limited interest‑holders were shown as the owners and in the said capacity they purportedly conveyed the properties though the Will had specifically reserved the rights in favour of three sons after the cessation of the life interest or limited contingent interest. It was urged that in view of the false position taken in the sale‑deed it is necessary to examine the Powers of‑Attorney executed by the vendors in order to know the scope of authority conferred on the said Attorney.
13. I have given serious consideration to the respective pleas of the parties. First the objection as to inapplicability of sections 11 and 28 of Act III of 1913 may be attended to. This objection was based on the plea that the owners of the estate in question are not known to be or affirmatively stated to be dead and assuming that they are dead, nothing having beer, said in the petition about the heirs, if at all they exist, the Administrator General has no authority to intervene as he can be permitted to act for the benefit of the heirs of deceased person and not in case of failure of succession. There is no merit in this objection for the reason that sec tion 11 of the Act empowers the High Court to direct the Administrator- General to collect and take possession of the assets and to perform subject to tile directions of the Court other acts mentioned in the section, when any person has died leaving assets within the jurisdiction of the Court and on attaining satisfaction that there is no person immediately available who is legally entitled to succeed to such assets or that danger is to be apprehended of misappropriation, deterioration or wastage of such assets before it can be determined who may be legally entitled to succession or whither the Administrator‑General is entitled to Letters of Administration of the estate of such deceased person.
It stands established on record that Federick St. John Rose, one of the sons is dead (see recitals of the sale‑deed Exh. R. 1); and that the inquiries so far made by the Administrator‑General reveal that the whereabouts of other two sons are not known (see correspondence with British Embassy, Westminster Bank, India Office Library Exhs‑ P. 5. P. 10 to P. 223). Moreover in the circumstances of the case, the apprehension of misappropriation or wastage of the assets could not be refuted. Thus, the necessary foundation for applying the provisions of section II of the Act and for seeking directions has been laid and established‑ Even if ultimately it is established that there is a failure of succession and none entitled to inherit the estate exists, still at this stage this plea is not available as section 11 was introduced so as to empower the Administrator- General to apply for Letters of Administration of any estate which may be committed to his charge temporarily, pending the inquiry into the entitlement of the persons entitled to succeed. In case the inquiry yields the result that none exists to succeed sander law. then the relevant authority or the Collector can proceed to take over the property as escheat to the Provincial Government or the Federal Government as the case may bed under Article 172 of the Constitution. To my mind, inquiry held under Act III of 1913 is to serve as one of the modes to determine that a certain property has no rightful owner and as such is to vest in the Provincial Government if located in the Province. This mode provides safe basis , for the Collector to collect, realize or recover such property from unauthorised hands, if any.
14. The next question which needs consideration is whether the estate can be considered as the assets" of the deceased person(s) as defined in section 2(1) of the Act III of 1913. In this respect the effect of the sale deed (Exh. R. 1) executed by the daughters and their sons and daughters and Stanley Charles Rose. the son and executor of the Will of Mrs. Mary Rose is to b,: determined. The principle deducible from Howe v. Lord Dartmouth (7 Ves 137) is that where residue or bulk of the property is left en masse and it is given to several persons in succession as tenants for life and remainder men, it is the duty of the Court to carry into effect the apparent intention of the testator and it is equally clear that the executor has also not to act contrary to the intent of the testator. Section 147 of the Succession Act, 1925 is based on the aforesaid principle. Mr. Frederick St. John Rose, Mrs. Winifred Lydia Dawe and Miss Gladys May Hill had life interest whereas, their issues held limited contingent interest in the profits and income of the Albion House and the same was ultimately to vest absolutely in the three sons. The plea that Stanley Charles Rose had not joined in his personal capacity in the sale‑deed cannot be accepted in the presence of the recital‑ of the deed itself. All those persons who had joined in the sale‑deed as vendors stand divested of the rights whatever they had in the property in question having received valuable consideration therefor. The Administrator‑General is equally bound as lie represents a deceased person or his heirs and intervenes only to secure the interest of the heirs in the situation contemplated by the Statute so that the devolution and distribution of the property could be regulated in accordance with the will if any or in accordance with law. With the execution of the sale‑deed (Exh. R. 1) the life estate of the two daughters, the limited contingent interest of the children of the two daughters came to an end and the property is to be taken to have vested absolutely in the three sons. One of the sons, namely, Frederick St. John Rose having died, as is apparent from the recitals of the sale‑deed (Exh. R. 1), the property is to be treated to have vested in the remaining two sons, namely, Stanley Charles Rose and Henery Maurice Rose. Stanley Charles Rose having joined in the sale, sold his share and as such his right, title and interest in the property thus was extinguished. The sale‑deed in these circumstances would be effective to convey the half share of Stanley Charles Rose only and the other half share belonging to Henery Maurice Rose continues to vest in him and he sale‑died (Exh. R. 1) is thus not effective as against half share in the properties belonging to Henery Maurice Rose. As regards the non‑production of the Powers‑of‑Attorney and the consequential arguments urged, it is to be noted that under section 60 of the Registration Act. 1908; presumption that the document was duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred tort in section 59 had occurred as mentioned therein arises and consequently) unless this presumption is rebutted the fact that the Attorney had acted under a proper Power‑of‑Attorney has to be presumed.
15. At this stage the arguments of Dr. Basit, Advocate, may be dealt with. The pleas raised were that the finality attaching to the Permanent Transfer Deeds issued to the transferees cannot be set at naught; that the matter of transfer being a past and closed transaction cannot be reopened and that the suit to recover properties has also become barred by time as such these properties are neither "assets" belonging to the deceased not it will be appropriate to give tiny such direction to the Administrator‑General to recover the so‑called assets i. e. the properties transferred to the respon dent‑transferees. In this behalf tile first thing to be noted is that the matter of transfer of these properties is not a past and closed transaction as these transfers were challenged by filing a constitution petition (W. P. 1443‑1t‑64) and the decision rendered therein has been further challenged in Intra Court Appeal which is still pending. Moreover, the Settlement Commis sioner ha, also given in writing that the matter will be reconsidered in tile light of the judgment delivered in these proceedings.
16. Now the pleas advanced by Ch. Khurshid Ahmad, Advocate for respondents Nos, 29 and 32 may be attended to. These respondents have laid claim on property No. S‑19‑R‑78 commonly known as Lahore Boot House or Amin Building. It may; however, be added that evidence produced fails to make out the claim of adverse possession as against the English gentlemen, the original owners or the Evacuees. These Muslim owners held rights in the building and the land underneath upto 1969 and thereafter, no visible overt act has been established on record to show that the previous position was done away with, openly and visibly to the knowledge of the abovesaid persons and a hostile title was asserted, claimed and established instead. Another plea advanced was that these sub‑lessees acquired rights of Permanent Lessees. This plea is not available in view of the recitals of the sub lease itself and in view of the concession made that irrespective of the sub‑lease in favour of these respondents the property in question should have been treated as evacuee property. As to the treatment of this property it is to be noted that till 1969 the share of the Hindus could not be treated as evacuee property as the interest of Muslims was to subsist till 1969. In any case it was conceded that in view of the rep; al of Evacuee and Displaced Persons Laws it is the Provincial Government which can now intervene and deal with the interest vesting in the Hindus. Ch. Khurshid Ahmad further argued that the property was not treated as evacuee property during the period the Evacuee Laws remained in force and now after the repeal of Evacuee Laws by Act XIV of 1975, the same cannot be treated as evacuee property. This very plea and the plea of Dr. Basit that suit to recover the possession of the property (share vesting in the heirs of the three English men) has become barred by time need not be determined in these proceedings as I am of the view that considering the Scheme of Act III of 1913 and the scope of authority vesting in the Administrator‑General it will not be appropriate to decide these questions here. These pleas should appropriately be left to be determined by appropriate forums as and when raised by the parties. It is obvious that when a direction to collect, realize or recover the assets under section 11(1) of the Act is made, the Administrator‑General will take over straightaway the custody or possession of the assets respecting which no dispute is raised but for collecting, recovering and realizing those assets res pecting which any claim is made or a dispute is raised and his right or autho rity to take over the custody or possession is challenged, he will have to act in accordance with law and where necessary to institute a suit or to initiate appropriate proceedings before appropriate forums. Likewise any party possessed of necessary locus standi can also institute proper proceedings before appropriate forum so as to establish its claim over any such property. This ‑ is clear from the reading of subsection (2) of section 11 and the Scheme of the Act.
17. The net result of the above discussion is that to the extent of one‑half share, the right, title and interest in the properties falling in the estate known as, Albion House which is situated over an area of 28 Kanals and 5 Marlas came to vest in the Hindu vendees named above while the other half share remained vested in the third son named Henery Maurice Rose and the said share has to be treated as "assets" within the meaning of section 2(1) of Act III of 1913 and consequently to the extent of the said half share directions are required to, be passed as contemplated in the aforesaid Statute.
Issue No. 4
The allegation that the petitions filed by the Administrator‑General are mala fide, proceeded on the basis that the proceedings were initiated for a purpose which is extraneous to the Statute and were intended to help tenants who are facing ejectment applications before the various Rent Controllers. In support of this allegation Bashir A. Bakhsh (R. W. 4) stated that the tenants in order to avoid their eviction submitted an application through Abdul Razzaq to the Administrator‑General stating that the property belonged to certain English men and was not evacuee property and that the transfer obtained by the transferees was fraudulent. He added that on the basis of this move of the tenants the petitions were instituted by the Administrator‑General mala fide without examining the allegations diligently and without following the rule of caution. This is hardly sufficient to establish mala fide as held in The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (P L D 1974 S C 151) It is also to be noted that in the revenue record the names of English men continued to be recorded in column of owners' even after Partition. The evacuees were recorded in the column of 'cultivation' as tenants. The sale‑deed (Exh. R. 1) was not in the knowledge of the Administrator‑General as well as the respondents. While deciding Writ Petition No. 1443‑R of 1964 a learned Judge of this Court held that the evacuee interest was limited to the superstructure only and that they had no interest in the land underneath. Then even the Settlement Authorities vide letters (Exh. R. 14/8 and 14/9) opined that the department will naturally reconsider the issue in the light of the decision given in the present proceedings. In these circumstances mala fides can hardly be imputed to the Adminis trator‑General. Fie being a statutory functionary had to act on receiving the information that the property belonged to the three English men. This information on the basis of the record and material then available cannot be said to be insufficient to furnish legitimate basis for performing the statutory duty enjoined upon the Administrator‑General. The issue is decided accordingly against the respondents.
Issue No. 5:
The Will made by Mrs. Mary Rose on 16‑6‑1903 is not disputed. This Will and the Letter of Probate issued on the basis thereof do not debar the Administrator‑General from seeking directions from this Court as by the disposal of rights by the life estate‑holders, contingent limited interest‑holders and one of the sons namely Stanley Charles Rose, the Will and the Letter of Probate cease to be operative. The second son Frederick St. John Rose having expired prior to the sale, it is only the interest of Henery Maurice Rose in the property which requires to be protected, realized, recovered and secured for distribution to the heirs, if any. It is yet to be gone into whether Henery Maurice Rose is alive and if not, whether he has left any heir or has made any Will. The issue is decided accordingly.
Issues Nos. 6 and 9
Once, it is held that the right, title and interest of Henery Maurice Rose subsisted and was not transferred to the Hindu owner, then the right and title in the property of the said owner could not be treated as Evacuee Property as in view of the admitted facts and circumstances of the case, Henery Maurice Rose does not fall within the definition of the term "Evacuee" and his property does not fall within the definition of the term "Evacuee Property" as defined in the Evacuee Laws enforced from time to time. It was held in Isab Khan v. Muhammad Sher (P L D 1975 Lah. 833) that :
"It was only evacuee property which could go the Compensation Pool and not non‑evacuee property, even though mistakenly it may have been allotted as evacuee property. If on proper determination it is discovered that the property allotted as evacuee property to the refugees was, in fact, non‑evacuee, it cannot and could not have formed part of evacuee or compensation pool.‑‑‑‑‑‑‑---------------------------------------------------------------------------------------------------------------------------------------------------------------------------‑‑‑
However, in the present proceedings, the allotment of property as evacuee property and its transfer under the Settlement Laws may not be gone into in detail. The Administrator‑General will have to initiate appropriate proceedings wherein this question will appropriately be decided.
Issues Nos. 7 and 8
The transferees are obviously necessary parties to the present pro ceedings as any direction adverse to their interest cannot be given without providing them an opportunity of hearing. The tenants under the trans ferees are neither necessary nor appropriate parties for the reason that none of their rights is likely to be affected even if the directions which are prayed for in these proceedings are made at the request of the Administrator General. The transferees are, therefore, only necessary parties to these proceedings. These issues are decided accordingly.
Issue No. 10 Relief
In view of the findings recorded above, the Administrator‑General is hereby directed to collect and take possession of half share i6 the Estate known as Albion House situated over an area of 28 Kanals and 5 Marlas. He is further directed to approach the Provincial Government/Chief Settlement Commissioner for working out and realizing the said share in the light of the stipulations contained in the lease‑deed, dated 14‑2‑1919. The arrangements, if any, agreed shall be subject to the approve of the Court. The Administrator‑General is also directed to apply for letter of Administration after holding further inquiry as existence of any other property of Mrs. Mary Rose and as to whether Mr, Henery Maurice Rose is alive and whether he has left any heirs or any Will. The parties are loft to bear their own costs.
M. B. A. Order accordingly.
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