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Civil Appeal No. K‑102 of 1976, decided on 3rd September, 1985.
(On appeal from the judgment and order dated 17‑11‑1975 of the High Court of Sind, Karachi, in Writ Petition No. 409/66).
‑‑ Art. 1.85(3)‑Pakistan (Administration of Evacuee Property) Act (XII of 19571, S. 3‑Leave to appeal granted to examine inter alia true scope of S. 3, Pakistan (Administration of Evacuee Property) Act, 1957.
‑‑ Ss. 25 & 43‑Evidence Act (I of 1872), S. 1‑Constitution of Pakistan (1973), Art. 199‑Powers possessed by Custodian while administering evacuee property‑Custodian though does not function as a Court of law yet Custodian has a duty to act judicially‑Word "Judicial"‑Meaning‑Decision of Custodian, held, were open to scrutiny on grounds of no evidence, bad faith, misdirection, or failure to follow judicial procedure.‑[Words and phrases].
Custodian does not function as a Court of law. Yet the Custodian has a duty to act judicially. This apparent paradox ceases to be so if the concept of a Court of law and judicial functioning is kept in view. Section 1 of the Evidence Act provides that this Act extends to the whole of Pakistan and applies to all judicial proceedings in or before any Court.
The word 'Judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge, by Justices in Court, or to administrative duties, which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind‑that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices for instance, act judicially when administering law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them, for instance levy a rate. But the proceedings in which only administrative duties are discharged cannot be regarded as judicial proceedings within the meaning of the Evidence Act.
The Custodian has nevertheless a duty to act judicially.
Hence the decisions of Custodian are open to scrutiny on grounds of no evidence, bad faith, misdirection, or failure to follow judicial procedure.
The exercise of lawful authority is subject to the necessity of interpreta tion of the law which is being applied and where that law is wrongly interpreted the action cannot be held to be otherwise than devoid on lawful authority.
Malik Khizer Hayat Khan Tiwana and another v. Mst. Zainab Begum and others P L D 1967 S C 402 ; Karachi Electric Supply Corporation Ltd. v. The Karachi Electric Supply Corporation Ltd. Labour Union P L D 1967 S C 513 ; Habibu'lah Khan and another v. Election, Tribunal, Jhang and others P L D 1962 Lab. 797 ; Hafiz Abdul Hakim and oihers v. Muhammad Anwar Khan and another P L D 1963 Lab. 63 ; Mulla or, Hindu Law, 10th Edn. ; Sundar Singh Majithia v. Commissioner of Income‑tax A I R 1938 All. 452; Laxmappa Goneppa v. Bhimappa Goneppa and others A I R 1946 Bom. 126; Nainsukhdas Sheonrayan v. Gowardhandus Birdrabandas A I R 1948 Nag. 110 ; Gutta Radhakristnayya v. Gutta Sarasamma A I R 1951 Mad. 213 ; Bal Kishan v. Salig Ram A I R 1946 All. 476 ; Principles and Digest of the Law of Evidence by Monir, Vol. 1 ; Royal Aquarium and .Summer and Winter Garden Society Limited v. Parkinson (1892) 1 Q B 431 ; The Punjab Province v. Sita Ram and others P L D 1956 F C 157 ; Sahibrai v. The Custodian of Evacuee Property, South Zone, West Pakistan, Karachi P L D 1957 S C 63 ; Hari Kirhan Mehra v. Custodian, Evacuee Property and others 1982 S C M R 929 and Rahim Shah v. Chief Election Commissioner P L D 1973 S C 24 ref.
‑‑------ S. 43‑Suo motu revisional jurisdiction of Custodian‑Custodian, held, could exercise suo motu revisional jurisdiction on information received by a person or authority considering themselves to be aggrieved.
‑‑ Income from property‑Joint family property‑Property not ancestral property but acquired property‑Coparceners and co parcenery property‑Accumulation of income of ancestral property Property purchased or acquired out of income or with assistance of ancestral property and property purchased from such proceeds, held, were ancestral ,property‑Son, grandson and great grandson acquire a vested interest not only in income and accretions of ancestral property which accrued after their birth, but also in income and 'accretions which accrued prior to their death.
Coparceners and Coparcenery Property Chapter XII Principles of Hindu Law by Mulla, S. 223 quoted.
‑‑ Joint family property‑Partition‑Wife cannot herself demand a partition but if a partition does take place between her husband and his sons, wife is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.
Hindu Law by Mulla, S. 315 quoted.
‑‑ Joint family property‑Partition‑How partition of joint Hindu family law takes place, stated.
Hindu Law by Mulla, S. 233 ; Tek Bahadur Bhujil 1 v. Debi Singh Bhujil 1 1966 S C J 290 ; Ram Charan Das v. Girjanandini Devi (1965) 3 S C R 850‑51 and Ramgouda Annagouda's case L R 54 I A 396 quoted.
------S. 20‑Hindu Law‑Family settlement‑Person having obtained life interest in disputed property reserving reversioner's right for two sons‑Sale by such person, held, required sanction of Custodian.
‑‑ S. 16‑Sale of property‑Confirmation by Custodian, held, was required only in case of purchase made from or on behalf of an evacuee or from or on behalf of a person who had or might hereafter become an evacuee after date of such creation or transfer.
------S. 16‑Powers of Custodian‑Hindu joint family property Person had only a life interest in property‑No certificate required under r. 12(3), Administration of Evacuee Property Rules, 1950 was furnished‑ Custodian, held, was amply justified to refuse to confirm sale by such person‑Provisions of Transfer of Property (Pakistan) Ordinance, 1947 were though not made applicable to area where property was situated, yet its incorporation in statutory rules applicable to area lent to it force and character of a subordinate legislation in that area.
A. K. Brohi, Senior Advocate Supreme Court with S. M. Sadiq and S. M. Abbas for Appellant.
Akhtar Mahmud, Advocate/Advocate‑on‑Record Supreme Court for Respondents Nos. 2(a) to 2(d).
Respondents Nos. 1, 3 and 4 : Ex parse.
Dates of hearing : 9th and 11th August, 1983.
Leave to appeal was granted to the appellant to examine. inter alia, the true scope of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957.
The disputed property is a bungalow on Clayton Road, Karachi, located on Plot No. 14‑J. M. 5 (City Survey No. J. M. 5/928) measuring 1,355 sq. yds. One Gopaldas Daulatram had obtained it on lease for 99 years commencing 21st May, 1932 from Karachi Municipality, for raising a residential building thereon. 'Two conditions of the lease agreement may in particular be noted at this stage. Condition No. 6 provided that "The aid plot shall not be sub‑divided or amalgamated with any other plot except with the previous consent of the Managing Committee". Condition No. 9 provided that "The lessee will be at liberty subject to the above conditions to sell, assign, or otherwise transfer his rights under this lease".
All the members of the joint Hindu Family of which Gopaldas Daulatram was the Karta submitted a joint application (undated) listing the joint family properties located in Karachi. At Serial No. 4 was this disputed property. They stated as follows :‑
"By an oral partition made between us some time before 1st April, 1942, we have divided all our joint family property consisting of the above immovable properties and cash, securities and other immovable properties situated at Hyderabad Sind. The immovable properties at Karachi have been allotted on partition in the following manner:
Properties described above as Nos. 1, 2 and 3 have been allotted jointly to Parse Gopaldas Bhavnani and Arjun Gopaldas Bhavnani in equal shares, while the property described above as No. 4 has been allotted to Mrs. Tulsibai Gapaldas Bhavnani and her interest in the property would be a life interest under the Hindu law and would revert after her to her son Parse Gopaldas Bhavnani and Arjun Gopaldas Bhavnani referred to above in equal shares.
The possession of the property has been transferred already in accordance with the partition mentioned above and we, therefore, request you to effect mutation in your records accordingly. We shall be ready to appear before you and make our statements at such time as required. Since the partition each one of us is in possession of the properties allotted as mentioned above."
They appeared before the City Deputy Collector Karachi and admitted this partition.
Tulsibai Gopaldas, executed on 5‑12‑1947 special power of attorney in favour of Gopaldas Daulatram authorising him to sell the property in dispute.
On 6‑12‑1947 Gopaidas, for himself and as attorney of Tulsibai sold the disputed property to Rubab Bai wife of Ghulam Hussain Ibrahim Makheswala for a sum of Rs. 80,000. The sale‑deed was formally registered on 17‑3‑1949. Soon thereafter in 1950 Mrs. Rubab Bai moved the Custodian under section 16 of Ordinance XV of 1949 for confirmation of the sale. It came to be disposed of by Deputy Custodian Evacuee Property on 5th of May, 1959 who passed the following operative order :‑
It is, therefore, ordered that transfer of full interest in the property in application described above cannot and shall not take place, and on the ground stated above life interest being the only interest valid under the sale‑deed Exh. A 1 and to the limited of the death of the vendor‑respondent No. 2 Mst. Tulsi Bai also cannot be confirmed, as the applicant failed to establish that the vendor‑respondent No. 2 is still alive.
Property shall retain its character as Evacuee property, confirmation is refused and the application shall stand rejected wholly. It is further ordered that the applicant shall surrender the property to the Rehabilitation and Settlement Commissioner, Karachi, within a fortnight of notice of the order, in default action in prosecution of the applicant will follow."
An appeal was filed by Mrs. Rubab Bai which was allowed by Additional Custodian on 26‑9‑1959 holding as follows :‑
"As regards the question relating to the rights of Tulsibai even assuming that she bad no more than a life interest that right subsists because the affidavit filed by Mr. Dinoomal shows that she is still alive and it would be idle to speculate now as to what the legal position would be after her death. There is also the fact that a Hindu widow who holds a life interest only can transfer the property absolutely subject to objections by the persons who happen to be reversioners at the time of her death. If the reversioners do not challenge her right the transfer of the absolute interest by her would be valid. Taking all these facts into consideration anti also having regard to the fact that the adequacy of the consideration is proved by Mr. Dinoomal affidavit, the appeal is allowed and the above‑mentioned sale‑deed is confirmed with retrospective effect."
The appellant had, as also one Rashid Turabi filed C. H. forms for the transfer of the portions of this very property, which was in their possession. These were rejected on 17‑11‑1959 on the ground that the property was not in compensation pool.
On 23‑9‑1960 Mrs. Rubab Bai sold the disputed property to Muhammad Ali Remani for a sum of Rs. 45,000. It was got registered on 24‑9‑1960.
The appellant, as Commissioner of Income‑tax addressed an application dated 6‑4‑1961 to the Director of Enforcement Evacuee Property and Claims objecting to the legality and the propriety of the order passed by the Additional Custodian on the appeal of Mrs. Rubab Bai and wanted it to be scrutinised afresh. He concluded his application as follows :‑
"In the circumstances stated above, it is clear that the property in question has been declared to be non‑evacuee owing to a mis representation of facts and misconstruction of law. It is, therefore, prayed that thorough investigation may kindly be made in the above case and as a result of such investigation the property in question held to be evacuee, it may be transferred to me as an informer against my verified claim which is Rs. 91,200 and Rs. 14,430 under Schedules I and VI, respectively."
The enquiry was started, it appears, under M. L. R. 49 and was primarily concerned with the certificate issued under section 20(3)(9)(11) of the Pakistan (Administration of Evacuee Property) Act, 1957 in favour of Gopaldas and Mrs Tulsibai. On completion of the enquiry a report was submitted to the Custodian Evacuee Property who marked it to the Additional Custodian for inquiry and report. The Additional Custodian heard the parties and submitted his report to the Custodian which is dated 15‑12‑1962 and concluded as follows :‑
"My view of the matter in face of the above discussions of facts in all their details is that no fraud or misrepresentation was practised by Rubab Bai that their is no substance in the allegations and the order dated 26‑9‑1959 passed by Mr. Riazuddin Ahmed awarding confirmation in favour of Rubab BA, in respect of the sale‑deed dated 6‑12‑1947 registered on 17‑3‑1949 relating to the property bearing No. J. M 928 and now owned by Muhammad Ali Hemani through sale‑deed dated 17‑9‑1960 is perfectly valid and effective in law."
When this report came up before the Custodian Evacuee Property, two applications supplementing the facts and grounds were filed, one by the Enforcement Staff and the other by the appellant. Upon this the Custodian Evacuee Property once again remanded the matter to the Additional Custodian. The points raised in these applications were commented upon and the conclusion earlier arrived at not varied.
The Custodian Evacuee Property exercised his suo motu revisional powers and passed the following operative order on 9‑5‑1966.
"I accordingly under section 43(4) of the Pakistan (Administration of Evacuee Property) Act, XII of 1957 set aside the order dated 26‑9‑1959 of the Additional Custodian and restore the order dated 5‑5‑1959 of the Deputy Custodian, under which the latter refused to confirm the sale in favour of Rubab Bai and declared that "the property shall retain its character as Evacuee Property" Subsequent transactions based on the title claimed on the basis of this sale will naturally be invalid and the property will continue to be evacuee as was held by the Deputy Custodian."
This operative order of the Custodian was based on the following findings of fact and law recorded by him :‑
"(i) The Additional Custodian passed the order without a proper search into the relevant documentary material and through a misunderstanding of some important material which was examined.
(ii) On the basis of an oral partition of the joint Hindu Family, property which had taken place in 1942, an application was made the same year and the name of Tulsibai was entered in 1942 and not in 1949 as stated by the Additional Custodian.
(iii) In view of Full Bench decision in Ramgopal v. Tulsi Ram A I R 1928 All. 641 a family arrangement or partition could be made orally and when made orally could be effected without a registered instrument. "As in the present case the family arrangement was oral and not reduced to writing, its registration was obviously not necessary and the arrangement took effect without registration. This means that the basic ground on which the Additional Custodian reversed the order of the Deputy Custodian does not hold good.
(iv) The transfer from Rubab Bai to Muhammad Ali Hemani was for inadequate consideration. Inclusive of past rent due it was sold for Rs. 45,000 in 1960 when the same property was sold without arrears of rent for Rs. 80,000 in 1947.
(v) Rubabi Bai herself was an evacuee.
(vi) The bona fide of the transaction entered into between Rubab Bai and Muhammad Ali Hemani was doubtful. The Income‑tax Clearance Certificate and its revocation together with the charge created on the property only confirmed the impression that all was not straight and bona fide in this transaction.
(vii) Gopal Das could not have given out himself as the owner of the property after the private partition had been effected and the property divided.
(viii) Reversal of the order of the Deputy Custodian was not called for by the Additional Custodian and the Custodian Department is not expected to mechanically confirm transactions and where valid doubts were raised about the bona fide of the nature of the legality of the transaction confirmation has to be refused "
Muhammad Ali Hemani, the second vendee of this property thereupon filed a constitutional petition. It was allowed by the High Court declaring. the impugned order of the Custodian dated 9‑5‑1956 to be without lawful authority and of no legal effect.
The decision of the learned Judge in the High Court was based on the following findings of fact and law :‑
(i) The Custodian had the suo motu jurisdiction to revise the order under section 43(4) of the Pakistan Administration of Evacuee Property Act XII of 1957. He had competently exercised his jurisdiction.
(ii) The Director of Enforcement and Mr. Majid were not of aggrieved parties nevertheless they had sufficient interest to justify initiation of action by the Custodian under suo motu powers in the exercise of his discretion.
(iii) The property in dispute was treated immediately before 1‑1‑1957 as evacuee property.
(iv) The Custodian had not approved of the power of attorney of Mst. Rubab Bai to manage the property.
(v) Relying on the decisions of the Privy Council in Thakur Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh arid others A I R 1926 P C 100 and Firdus Khan v. Sayid Azam Shah and 14 others P L D 1970 Pesh. 141 it was held that oral partition was not proved and the mutation proceedings in the municipal record were of no avail for proving the partition. Partition was in any case not accepted or given effect to in the income‑tax record.
(vi) The mutation proceedings substituting the name of Tulsi Bai as lessee of the property were not proved as required by law laid down by this Court in Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others P L D 1973 S C 160 ‑, Abdullah and 3 others v. Abdul Karim and others P L D 1968 S C 140 and Malik Din and another v. Muhammad Aslam P L D 1969 S C 136.
(vii) Even if an oral partition had taken place and did not require the registration as amongst the co‑sharers of the property as Mst. Tulsi Bai had no antecedent title or interest in the coparcenery property of which partition had taken place, she could not acquire title or interest without getting the partition reduced to writing and getting the same registered.
(viii) Recognition of title of Tulsi Bai on the basis of oral partition, not in writing and registered was an act without jurisdiction on the part of the Custodian.
(ix) The treating of Mst. Rubab Bai as evacuee who was not treated so immediately before 1‑1‑1957 was without lawful authority notwithstanding the fact that this particular property had been treated as evacuee property.
(x) It was not necessary to examine whether the Income‑tax Depart ment after having once granted a No Objection Certificate could revoke it."
Mr. A. K. Brohi, the learned counsel for the appellant contended before us that it was not the finding of the High Court that the Custodian Evacuee Property had no jurisdiction in revision to interfere with the approval accorded by the Additional Custodian on appeal. If the exercise of revisional powers by him did not lack jurisdiction and was also not in excess of jurisdiction then even an incorrect finding of fact and law would stand protected and will not be liable to interference by the High Court in exerci3e of the constitutional jurisdiction. According to the learned counsel, this Court has time and again emphasized the special nature of the Evacuee Laws, the perimeter within which the Custodian has to administer evacuee property and how he has to decide controversies brought before him. None of those decisions justified interference with the findings of the Custodian unless it was on the ground of want of jurisdiction or excess of jurisdiction. To support his countention the learned counsel for the appellant has relied on the decisions of this Court in Sahibrai v. The Custodian, Evacuee Property W. P. Karachi (PLD1957SC63), Sungreen & Co. Ltd. v. Qamardin Muhammad Hashwani (PLD1958SC 144), Badrul Haque Khan v. The Election Tribunal, Dacca and 2 others (P L D 1963 S C 704) and Mian Rafi‑ud‑Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (P L D 1971 S C 252).
It was also contended by the learned counsel for the appellant that in confirming the sale or refusing confirmation, the Custodian could have taken into consideration the fact that the property was orally partitioned, that Gopal Das was not its owner, that there was suppression of the fact that Tulsibai had a mere life interest, that Gopal Das left with no interest in it and the No Objection Certificate of the Income‑tax Department issued to him could not be of avail. He could also take note of subsequent sale and inadequacy of consideration therefor. All these factors were relevant to the determination and were taken into considera tion by the Custodian for refusing confirmation. The High Court could not in its constitutional jurisdiction substitute its own judgment with regard to the effect of those relevant factors and act in aid of manifest injustice.
The learned counsel for the respondent on the other hand contended that the registered lease deed was in the name of Gopal Das who was shown to be the sole owner of the property which did not at any stage either notionally or actually belong to the joint family. Even if the partition bad taken place it was not acted upon or given effect to particularly in the Income‑tax record and Gopal Das had sold the property in favour of the first vendee. The question of the first vendee being an Indian National was never directly raised and properly adjudicated upon. The entries in the Emigration Register referred to and relied upon by the learned Custodian were not identified to be that of the first vendee, There was overwhelming evidence on the record in the form of notices issued from Additional Custodian and the acknowledgments made by the informer Abdul Majeed showing that the first vendee resided in the same premises and was communicating with him. For justifying interference by the High Court the learned counsel referred to and relied upon the decisions of this Court in the caw of Malik Khizer Hayat Khan Tiwana and another v. Mst. Zainab Begum and others (PLD 1967 SC 402) and Karachi Electric Supply Corporation Ltd. v. The Karachi Electric Supply Corporation Ltd. Labour Union (PLD 1967SC513). He also relied upon the decision in Habibullah Khan and another v. Election Tribunal, Jhang and others (P L D 1962 Lah. 797) and Hafiz Abdul Hakim and others v. Muhammad Anwar Khan and another (P L D 1963 (W. P.) Lah. 63).
The learned counsel for the respondent seriously objected to the locus standi of the respondent and the competence of the revision petition on his behalf. It was next contended that Transfer of Property (Pakistan) Ordinance, 1947 did not apply to Karachi, that no‑objection certificate from Income‑tax authorities was necessary and its grant or revocation did not really matter. As regards the private partition it was urged that Tulsibai was not a coparcener, was not entitled to share and if she received any, it required writing and registration. H; referred to sections 221, 172, 315, 303, 322 and 242 of Mulla on Hindu Law, 10th Edn. Besides Gopaldas being the sole owner, acquisition of any interest by Tulsibai required writing and registration. Reliance has been placed on decisions in Sundar Singh Majithia v. Commissioner of Income‑tax (A I R 1938 All. 452), Laxmappa Goneppa v. Bhimappa Goneppa and others (A I R 1946 Bom. 126). Nainsukhdas Sheonrayan v. Gowardhandas Bindrabandas (A I R 1948 Nag. 110), Gutta Radhakristnayya v. Gutta Sarasamma (A I R 1951 Mad. 213) and Bal Kishan v. Saliq Ram (A I R 1946 All. 476).
Finally, it has been contended that even if the evacuee character of person of Gopal Das or Tulsi Bai or Rubab Bai was in issue the evacuee nature of this property was never so and on account of sections 3 and 3‑A the property could not be dealt with or treated as evacuee property after 1‑1‑1957 once the sale stood validly confirmed.
In order to understand the question involved in the appeal it is necessary to slightly touch upon the nature of jurisdiction exercised and the power possessed by the Custodian while administering evacuee property. He does not function as a Court of law. Yet the Custodian has a duty to act judicially. This apparent paradox ceases to be so if the concept of a Court of law and judicial functioning is kept in view. Section 1 of the Evidence Act provides that this Act extends to the whole of Pakistan and applies to all judicial proceedings in or before any' Court. In commenting on this provision in its principles and Digest of the Law of Evidence by Monir Vol. 1 the author makes the following comment at page 9 :‑
"The word judicial' has two meanings. It may refer to the discharge of duties exerciseable by a Judge, by Justices in Court, or to administrative duties, which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices for instance, act judicially when administering law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them, for instance levy a rate. But the proceedings in which only administrative duties are discharged cannot be regarded as judicial proceedings within the meaning of the Evidence Act."
This distinction has also been brought out in Royal Aquarium and Summer and Winter Garden Society Limited v. Parkinson ((1892) I Q B 431).
The Custodian does not function as a Court will be clear from the two decisions of this Court in The Punjab Province v. Sita Ram and others (P L D 1956 F S 157) and Sahibrai v. The Custodian of Evacuee Property, South Zone, West Pakistan. The Custodian has nevertheless a duty to act judicially as has been held in Hari Kishan Mehra v. Custodian, Evecuee Property D and others (1982 S C M R 929). Hence his decisions are open to scrutiny on grounds of "no evidence, bad faith, misdirection, or failure to follow judicial g procedure etc." Rahim Shah v. Chief Election Commissioner (P L D 1973 S C 24). The exercise of lawful authority is subject to the necessity of interpretation of the law which is being applied and where that law is wrongly interpreted the action cannot be held to be otherwise than devoid on lawful authority Karachi Electric Supply Corpn. Ltd. v. Labour Union.
The High Court by the impugned order has not denied to the Custodian the power to suo motu revise the order of the Additional Custodian. The learned counsel for the respondent objects to its exercise on the ground that it was in fact not a suo motu exercise of powers but on applications made by person or authority considering themselves) aggrieved, by the confirmation ordered by the Additional Custodian. As they have been held to be not a party, much less an aggrieved party to the confirmation proceedings this objection cannot be advanced at all. The custodian could on information so received exercise his suo motu revision. The date 1‑1‑1957 and the introduction of section 3‑A in Administration of Evacuee Property Act have no relevance or bearing because the vendee from the evacuee had herself applied for confirmation and that application was pending on 1‑1‑1957 and also when section 3‑A was introduced.
Coming now to the facts of the case from the undated application filed by all the members of joint Hindu family of which Gopaldas Daulat Ram was the Karta, it is clear that an oral partition of the joint family property had taken place before 1st April, 1942 and that in respect of a part of the joint property‑‑‑the ones located in Karach ‑it was sought, to be given effect to and implemented in Municipal record by recording and reflecting the partition as agreed to orally. This oral partition duly acted upon and implemented was admittedly unregistered.
The objection to it is that Gopaldas Daulatram, the individual and not the Karta, was the lessee and the any acquisition of immovable property by him could not be amalgamated and treated as the joint Hindu family property. Another objection is that Tulsibai as wife of Karta Gopaldas Daulatram was not a coparcener, was entitled to no share and could not get one except by a registered deed. The third objection is that even if a partition had taken place it was never really acted upon, particularly in respect of this property, and Gopaldas Daulatram continued to deal with it as the sole owner lessee, as appears from Income tax record.
It is true as stated while giving the facts of the case that the lease was in the name of Gopaldas Daulatram, the individual and not the Karta. This property was not the ancestral property but an acquired property. On the chapter of "Coparceners and Coparcenery Property" (Chapter XII) Principles of Hindu Law by Mulla section 223, subsection (6) contains the following principle of Mitakshara Law :‑
"Accumulations of income of ancestral property, property purchased or acquired out of the income or with assistance of ancestral property, the proceeds of sale of ancestral property, and property purchased out of such proceeds are ancestral property. It is now well established that sons, grandson and great grandsons acquire a vested interest not only in the income and accretions of ancestral property which accrued after their birth, but also in the income and accretions which accrued prior to their death."
Things were not left at that all the members of the joint family including Gopaldas admitted in writing that it was a part of coparcenery property and dealt with in as such, and apportioned it as joint family property. This happened at a time when no controversy or dispute over, title had arisen or was in view. This act of all the members of the family put a final seal to the legal presumption that could arise of its being a joint family property.
The undated application seeking mutation of names, its acceptance by the municipal authorities, the lessor, and consequential change made in the municipal record showing thenceforth Tulsibai to be the owner shows that there was no instrument of partition, that it was only a memoranda and that partition had already been acted upon. What clinches the issue is the document of transfer in favour of Rubab Bai. On 5‑12‑1947 by a power‑of‑attorney Tulsi Bai Gopal Das Bhavnani appointed Mr. Gopal Das Daulatram Bhavnani to be her true and lawful attorney to do or execute all or any of the acts or things hereinafter mentioned that is to say :‑
"To enter into agreement to sell and convey at any price he may choose with or without any furniture as he chooses the immovable property owned by me and situated on Clayton Road in the city of Karachi Registration District and sub‑district Karachi bearing Registered No. 14 Sheet J. M. 5 and for that purpose to receive the earnest money and the sale price and pass receipt and discharge therefor to execute the sale‑deed and get it registered and to do all other acts, deeds and things for selling and conveying the said property as may be deemed necessary as if I were personally present and I the granter of this power do hereby agree to ratify and confirm all that my said Attorney do for the above‑defined purpose by virtue of these presents."
The registered sale‑deed contains the following recital :‑
"And whereas the said Gopaldas Daulatram Bhavnani has since mutated the said hereditaments in the name of his wife the said Mrs. Tulsibai Gopaldas Bhavnani in the records of the City Deputy Collector of Karachi with the result that the name of the said Mrs. Tulsibai Gopaldas Bhavnani appears as the owner of the said hereditaments in the property register maintained in the office of the City Deputy Collector of Karachi."
Getting the title through these documents Mst. Rubab Bai or her successor‑in‑interest could not repudiate the ownership of Tulsi Bai nor the status of her husband as an Attorney authorised to do the specified acts mentioned in the Power of Attorney. It is in the context of these admissions lending fixity to the legal character of Tulsi Bai as vendor that the antecedent private partition gets endorsed and recognised. It is not open in view of these documents which are the very basis of title and interest of transferee to say or for the Court to hold that Mst. Tulsi Bai was not the owner of the property and that her attorney continued to be the owner.
It is not denied that as between members of the family oral partition, legally effective and binding can take place and further that its subsequent recital will not require registration. The document evidencing such an oral partition is the joint application. A perusal of it makes it clear that it is not a document itself effecting partition. It contains a recital of a partition having already taken place. It does not even mention the entire property which was the subject‑matter of partition. It does not reflect to all its completeness and totality that partition. It only relates to properties located in Karachi, whose partition was not postponed but comprehensively dealt with at the time of oral partition. The contention that Tulsibai was not a coparcener and acquisition of any interest in property by her required registration is equally untenable. Section 315 of the Hindu Law by Mulla provides that :‑
"A wife cannot herself demand a partition but if a partition does take place between her husband and his sons, she is entitled to', receive a share equal to that of a son and to hold and enjoy that share separately even from her husband."
Similarly on the question as to how partition of joint Hindu family takes place it is stated in section 325 ibid that :‑
"Partition is a severance of joint status, and as such it is a matter or individual volition. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. It is immaterial in such a case, whether the other members assent. Once a member of a joint family has clearly and unequivocally intimated to they other members of his desire to sever himself from the joint family, his right to obtain and possess his share is unimpeachable whether or not they agree to a separation, and there is an immediate severance of the joint status. The intention to separate may be. evinced in different ways, either by explicit declaration or by conduct."
Further in section 327 (ibid) it is stated : ‑
"The, clearest case is where the members of a joint family divide the joint property by metes and bounds and each member is in separate possession and enjoyment of the share allotted to him on partition."
Two cases from Indian jurisdiction illustrate the point. On registration there is the decision to Tek Bahadur Bhujil v. Debi Singh Bhujil (A I R 1966 S C 290) :‑
"Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."
The second decision in Ram Charan Das v. Girjanandini Devi ((1965) 3 S C R 850‑51), relates to the nature and scope of a family settlement in the following words :‑
"The word family' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagouda's case L R 54 I A 396 of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son‑in‑law. The two latter could not under the Hindu Law, be regarded as the heirs of the deceased. Yet bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons nearing relationship with one another. That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter."
It is clear, therefore, from the preceding discussion that the family settlement was complete, that Mst. Tulsibai had obtained life interest in the disputed property reserving the reversioners right for her two sons. A sale by her required sanction of the Custodian which was rightly applied for.
Mst. Rubab Bai, the vendee had filed the application in 1950 invoking power of the Custodian under section 16 of Ordinance XV of 1949. It is this power as reproduced in section 20 of Act XII of 1957 that came to be exercised by the Custodian on 26‑9‑1959. Section 16 of Ordinance XV of 1949 is reproduced hereunder :‑
"16. Restriction on transfer by evacuees.‑(I) No creation or transfer of any right or interest in or encumberance upon any property made in any manner whatsoever on or after the first day of March, 1947, by or on behalf of an evacuee, or by or on behalf of a person who has or may hereafter became an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian.
(2) An application for confirmation of such creation of a right or encumberance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party.
(3) The Custodian shall bold a summary inquiry into the application in the prescribed manner, and :‑
(a) shall reject the application if the creation or transfer :‑
(i) was or is prohibited under any law for the time being in force, or
(ii) was not or is not covered by a certificate from the prescribed income‑tax authority to the effect that no objection existed or exists to such creation or transfer ;
(b) may eject the application if he is of opinion that the creation or transfer :‑
(i) was not or has not been entered into a good faith or for adequate consideration, or
(ii) ought for any other reason not to be confirmed:
(4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose."
The procedure prescribed under section 16 by rule 12 of the Adminis tration of Evacuee Property Rules, 1950 was as follows :‑
12. Procedure for confirmation under section 16.‑(1) An application for confirmation under subsection (2) of section 16 shall contain full particulars of the property, the name of the transfer or and his present address, if known, the nature of the transaction sought to be confirmed, and the consideration paid or deferred together with the date or dates on which paid.
(2) The application shall be presented within sixty days of the date of publication of these rules or the date of execution of the instrument effecting the transaction sought to be confirmed, whichever be later, and any period during which the completion of such transaction is prohibited by or under any law for the time being in force in the area in which the property is situated shall be excluded.
(3) The application shall be accompanied by a certificate in terms of section 3 of the Transfer of Property (Pakistan) Ordinance, 1947 from the Inspecting Assistant Commissioner of Income‑tax of the area in which the property is situated or such other officer as may be duly appointed in this behalf, or in the absence of such certificate an affidavit declaring why such certificate is not attached, and by a duly attested copy of the instrument effecting the transaction sought to be confirmed and of such other documents as may be relied upon, and shall bear a court‑fee stamp of rupees twenty or rupees ten according as the value of the consideration does or does not exceed rupees ten thousand.
(4) Where an application for confirmation is pending on the date of publication of these rules, the applicant, if necessary, shall amend the application and makeup any deficiency in court‑fee stamp in accordance with this rule within thirty days from such date, unless the Custodian, on sufficient cause being shown, extends the said period.
(5) The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in which the property is situated, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a newspaper at the expense of the applicant."
The law applicable (section 16) makes it clear that confirmation by the Custodian was required only in case of purchase made from or on behalf of an evacuee or from or on behalf of a "person who has or may hereafter become an evacuee after the date of such creation or transfer". The very fact that this jurisdiction of the Custodian was invoked would show that the status of Tulsibai the owner was taken to be that of an evacuee or one who may afterwards become an evacuee.
The Custodian enjoyed extensive powers under this provision of the law. The enquiry had to be summary. He could bring his value judgment to the facts of tile case by holding that the transaction "ought for any other reason not to be confirmed". The fact that Tulsibai hit only a life interest in the property that there was no certificate furnishes as was required under rule 12(3) of Administration of Evacuee Property Rules, 1950 could amply justify the refusal of the Custodian to confirm, the sale. Even if the provisions of Transfer of Property (Pakistan) Ordinance, 1947 were not made applicable to Karachi, its incorporation in' statutory rules applicable to Karachi, lent to it the force and character of subordinate legislation in that area.
The view that we have taken of the nature and extent of ownership of Mst. Tulsibai, and the powers enjoyed by the Custodian in the matter of confirmation of such sales, justifies the restoration of the order of the Custodian. This appeal is, therefore, allowed, the writ issued by the High Court is recalled, the constitutional petition dismissed restoring the order of the Custodian dated 9‑5‑1966. No order as to costs.
M. B. A. Appeal allowed.
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