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Regular First Appeal No. 25 of 1953, decided on 10th April, 1960.
Arts. 14 & 120‑Order of Government void ab initio‑Suit for declaration that order of Government is ultra vires and ineffective against right of plaintiff Art. 14 not applicable ‑Art. 120 applies.
The act referred to in Article 14 does not mean an act which is a complete nullity.
The two suits were for declaration that the orders of the Provincial Government requiring the plaintiffs to place the subject‑matter of the bequest at its disposal were illegal, ultra vires and ineffective against the right of the plaintiffs. These suits were not for setting aside such orders, although that would be the necessary consequence if the declarations demanded by the two plaintiffs were granted in their favour.
What had to be seen in this context was whether the impugned orders of the Government were void ab initio or only voidable. In the first case in order to grant the relief to the plaintiffs it was not necessary to set aside such orders but in the second case it was absolutely essential that such orders should be clearly set aside, otherwise no effective relief could be granted to the plaintiffs.
In the case where the orders of the Government were void ab initio and it was not necessary to set them aside in order to grant the relief to the plaintiffs, Article 14 of the Limitation Act would not have any application but, in the second case, where the orders were valid, but in order to make them effective they had to be avoided, then whatever the language of the plaint, Article 14 would come into play and if brought more than one year after the impugned order was passed the suit would be barred by time.
According to P L D 1956 F C 72 therefore, if it was claimed that the order of the Government was wholly void, then no ques tion of limitation would arise provided the dispute had not been concluded.
In the present case, the property was still with the plaintiffs and, therefore, the above authority had full application to it.
The only Article which could be made applicable to the suit was the residuary Article 120 of the Limitation Act.
The Punjab Province v. The Federation of Pakistan, P L D 1956 F C 72 rel.
Shiv Ram and others v. Mst. Ishri and others A I R 1926 Lah. 456, A I R 1926 Lah. 503 ; Prativadi Bhayankaram Thiruven kotacharyulu v. Secretary of State I L R 57 Mad. 501 and Secretary of State v. Abdul Rahim A I R 1928 Mad. 1246 ref.
S. 14‑Suit filed in wrong Court‑Subsequently plaint presented to proper Court‑Mistake of senior lawyer‑Litigant should not suffer‑Exclusion of time under S. 14.
A litigant in order to be diligent can do no better than to engage a senior lawyer in his case. The lawyers, however senior and eminent they may be, are after all human and for that reason fallible. It is the possibility of the occasional error in the case of the litigants and their counsel that is guarded against by section 14 and other similar sections of the Limitation Act. It will be totally wrong to regard a mistake committed by an eminent lawyer, in instituting the suit in a wrong Court, as a matter for which a litigant should be punished. Time should be allowed in such cases.
Will‑Distinction.
Gift and will are two distinct transactions but in certain respects the same rules will govern them both, because they are the gratuitous transfers of property by one person to another and that is the only common feature between the two.
One of the essential ingredients of gift is that it should be accepted by or on behalf of the donee during the lifetime of the donor and while he is still capable of giving away the property. In the case of the Muslims, another essential ingredients is that it should be accompanied by possession.
A will on the other hand is a disposition of property which takes effect after the death of the testator. It presents different situations in different laws. It may be wholly void or partly valid and partly void, depending upon the law which governs the testator. If he is governed by Hindu Law, then the will be governed by the Mitakshara Law or Dayabhaga Law as the case may be. If, however, he is a Muslim, it has to be seen whether he follows the school of thought known as Hanafi Law or the one commonly called Shia Law. Christian and Parsis have their own laws which govern the wills made by them. If the will is valid according to the law which governs the testator, then it has to take effect only after certain liabilities of the testator are met from his estate, for example his funeral expenses and the debts. Unlike gift it does not take effect immediately after it is executed, but becomes operative only on the death of the testator which may not take place for several years to come. Until then it remains only a wish, not even a promise to give away the property of the testator. He may change his mind at any time without assigning any reason or observing any formality. The possibility that by the time the testator dies it may lose its value altogether cannot be excluded. But if the will is not revoked and it is otherwise valid, then immediately the death of the testator takes place, the property willed away vests in the legatee, irrespective of the fact whether he accepts the bequest or not. In the case of the gift before delivery, it can be revoked, but after delivery it cannot be revoked if made in favour of a person related to the donor within a prohibited degree or it is between husband and wife or vice versa. Other gifts may in general be revoked unless there is some special cause to prevent it. Thus gift and will stand on absolutely different footings both in their effect or essential ingredients.
The fact that in the head‑notes of certain sections of the Succession Act or in some British judgments, "will" is described as "Gift by will" is no reason for holding that gift includes will. Will is given this name because both gift and will are gratuious giving away of the property otherwise there is hardly anything common in them. Both of them stand on absolutely distinct footing.
Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 Ben. R 377, Mst. Bano v. Fateh Khan and another 48 P R 1903, Fazal Khan v. Anwar A I R 1928 Lah. 489, Pahlwan Khan v. Bagga and others A I R 1929 Lah. 192 and Mst. Fatima v. Sharaf Din A I R 1946 Lah. 426.
Rules‑Principles which regulate interpretation of statutes must be taken to regulate inter pretation of rules as well‑General principles of interpretation of statutes and rules, stated.
The principles which regulate the interpretation of a statute must be taken to regulate the interpretation of the rules as well. The true position seems to be that the words used in the rules, as in the statutes, should, in the first instance, be read in ordinary and natural sense and should be modified or altered only in so far as it may be necessary to avoid some manifest absurdity, palpable injustice or anomaly. An endeavour has to be made to appreciate the general object for which the rules were made. Such construction should be placed‑upon the rules which should suppress the mischief and advance the remedy. All attempts to stable intrusion and invasion for the continuance of the mischief must be suppressed and force and life added to the cure and remedy.
rr. 3 & 9‑Liberal construction to be given to word "purchase" in rule 9‑Purchase includes mortgage or exchange‑Acquisition by inheritance or will not covered by rules‑Contract Act (IX of 1872), Ss. 23 & 25.
A liberal meaning may be given to the word "purchase" in Rule 9 as including any acquisition of the property whether by way of mortgage or exchange, because otherwise the purpose for which rule 9 is made, that the Government servant should not acquire any property without the previous sanction of the Govern ment, which is to maintain the integrity and honesty of the Government servants, will be totally defeated. It will, however, be little too much to say that the devolution of the property by will should be taken as the devolution of the property by gift. What the rules intend to guard against was the conduct and act of the Government servant which might interfere with the honest discharge of his duties. If the property devolves upon a certain person without any act or conduct on his part, then the rule, do not come into play at all. Take for example inheritance. A person inherits the property without any will of his own. It will be totally wrong to say that the acquisition of the property by inheritance is also covered by rule 3 or 9 of the Government Servants Conduct Rules and such an acquisition will be bad if not sanctioned by the Government. It is necessary to see that under rule 3, the words used are "No Government servant shall, except with the previous sanction of the Government, accept or permit any member of his family to accept". Where therefore, there is no question of acceptance, there is no question of rule 3 as well. Similarly in rule 9, the words used are "No Government servant shall, save in good faith for the purpose of residence, acquire any immovable property without the previous sanction of the Government". Both rules 3 and 9 envisage acquisition of the property with the previous sanction of the Government, and the use of the word "previous" indicates that before the property vests in a certain person; sanction of the Government should be taken. In the case of the will, when the property vests in the legatee, the stage of the previous sanction of the Government has already passed. If therefore, will is the same thing as gift, then no acquisition of the property by will is possible, because there cannot be in such a case the previous sanction of the Government.
If a Government servant does something illegal for a certain individual and in lieu of that he is given certain property, then the transfer will be bad under section 23 of the Contract Act which makes all agreements illegal the consideration of which is forbid den by law or is of such a nature that if permitted it would defeat the provisions of any law or is fraudulent or is immoral or opposed to public policy.
Rules 3 and 9 of the Government Servants Conduct Rules do not apply where the purchase or the gift is wholly invalid. Their application is attracted only when the property validly passes on to the Government servant or to the members of his family over whom be has the control and not when the property does not vest in them at all. Supposing if the purchase and gift are invalid in their inception, then the previous sanction of the Government will not validate them. If a public servant accepts or obtains or agrees to accept or attempts to obtain froth any person for himself or for any other person any property as a motive or reward for doing or for forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour to any person or for render ing or attempting to render any service or disservice to any person, then the acquisition will be wholly void. The property in such a case does not pass on to the Government servant. So in such a case there is no question of the Government servant obtaining sanction for the same or placing it at the disposal of the Government servant. Similarly, if the acquisition of the property by the Government servant is without consideration, then except in the cases mentioned in section 25 of the Contract Act such acquisition will be totally void. In the like manner if the property is obtained by coercion or fraud or misrepresentation or under undue influence, then the acquisition of the property is voidable at the option of the owner of the property. Government does not come into the picture at all. It can only come into the picture when the property legally and validly vests in the Government servant. Rules 3 and 9 are in fact meant to keep a general watch on the Government servant.
If otherwise a property has validly vested in the Govern ment servant either by way of purchase or by way of gift, then the Government servant cannot be divested of that property merely because the previous sanction of the Government was not obtained. The only remedy which is open to the Government in that case is to take departmental action against the Government servant for violating the rules.
Rule 3 read as a whole cannot apply to the will not because a Government servant cannot be placed under any form of any obligation to the testator after his death, but because he cannot, at the time when the property vests in him, accept the property willed away in his favour for fear of giving undue offence to the testator. Whereas a Government servant may continue to be under the obligation of the testator even after his death for giving the property to him by will and for that reason may show favour to his son or other relations but he cannot certainly accept the property in order to avoid giving offence to the dead person.
Rules 3 and 9 of the Government Servants Conduct Rules do not overlap each other. Under rule 9 a Government servant must obtain the previous sanction of the Government if he acquires any immovable property by purchase or by gift except if he acquires it for residential purposes. Under rule 3 the Govern ment servant or any member of his family is precluded from acquiring any property by way of gift even if it is for residential purposes without the previous sanction of the Government provided such acquisition places him under any form of official obligation to the donor. Under the second sentence of rule 3, sub‑rule (1), if the offer of a gift cannot be refused without giving undue offence, it may be accepted and delivered to Government for decision as to its disposal. There is no indication whatsoever in rule 3 that it applies only to movable property and not to immovable property. A person 'may accept an offer of a gift of immovable property if he wants to avoid to give offence to the giver thereof just as much as he can do so in the case of movable property. There is no justification whatsoever to restrict the application of rule 3 to movable property simply because in sub‑rule (3) a Government servant is allowed to accept a compli mentary gift of flowers, fruit or similar articles of trifling value. If rule 3, only applies in the case of movable property, then gift of immovable property to the members of a Government servant's family or to himself for residential purposes even if it places him under the official obligation of the donor will be permissible because that is not covered by rule 9 of the Govern ment Servants Conduct Rules. That cannot be the intention of the rule‑making body.
J. H. Rizvi, Advocate‑General with Mian Muhammad Shafi for Appellant.
Sardar Muhammad Iqbal ; Sardar Shab Bukhari ; Muhammad Akram and M. Bashir for Raza Kazim for Respondent.
Nawab Sir Allah Bakhsh Tiwana of Khawajabad, District Shahpur, was an owner of extensive property, both movable and immovable in the former Punjab which has now merged into West Pakistan. He was married twice, once to Mst. Hayat Bibi who died some time in 1928, and for the second time to Mst. Nawab Bibi, a daughter of one Sher Muhammad Ranjha, who however deserted him and started living as a wife with one Manak of Busal, District Gujrat. Neither of his two wives bore him any child. It also appears that except for a real sister by the name of Mst. Bhag Bhari, who was married to Brigadier Malik Gulsher Khan Noon, he had no other near relations. He developed cancer in the throat some time in 1947 and though not in the immediate apprehension of death did not expect to live for long. On the 27th of March 1948, therefore he made a will by which, inter alia, he bequeathed 5 squares of land, situated at Nasirabad in village Ajnala, to Ch. Bashir Ahmad, P. C. S., and 3 squares of land, situated in the same place, to Ch. Nisar Ahmad, son of Ch. Fazal Ahmad, Tehsildar, to be held by them in absolute ownership. Will was deposited with Registrar, Sargodha.
2. Nawab Sir Allah Bakhsh Tiwana died on the 16th of June 1948. The will was then made public. The effect to the will in respect of 5 squares of land bequeathed in favour of Bashir Ahmad and 3 squares of land bequeathed in favour of Nisar Ahmad was given by mutations Nos. 390 and 392, respectively, both attested on the 16th of July 1948.
3. The Provincial Government, West Punjab, as it was then known, by Memorandum No. 1352‑G‑49/219‑P, dated the 2nd of March 1949, and Memorandum No. 1808‑E, dated the 6th of May 1949, called upon Ch. Bashir Ahmad Khan Tarar and Ch. Nisar Ahmad, Tahsildar, respectively, to place the property bequeathed in their favour by Nawab Sir Allah Bakhsh Tiwana at the disposal of the Government, to be utilised in such manner as they decided under Rule 3 (1) of the Government Servants' Conduct Rules of 1945. Both the legatees served separate notices on the Government under section 80 of the Code of Civil Procedure. Ch. Bashir Ahmad Khan Tarar served this notice on the 16th of March 1949 and Ch. Nisar Ahmad Khan on the 20th of May 1949. They questioned the authority of the Government to call upon them to place the bequeathed property at their disposal and required them to cancel and withdraw the above order. The West Punjab Government did not accede to this demand made in the aforementioned notices and, hence Ch. Bashir Ahmad Khan Tarar instituted a suit in the Court of the Senior Sub Judge, Lahore, on the 25th of May 1949, and Ch. Nisar Ahmad on the 9th of August 1949, seeking the following relief:‑--
"The plaintiffs be granted a decree against the defendant declaring that the bequest of 5 squares of land representing 2250/6273 share in one case and of 3 squares of land represen ting 1350/6273 share in the other, in Khewat No. 77, situated in the area of village Ajnala, District Sargodha, made by late Sir Allah Bakhsh Tiwana of Khawajabad, District Sargodha, under his will, dated the 27th of March 1948, does not offend the provisions of Rule 3 (1) of the Government Servants' Conduct Rules of 1945 and the order of the defendant Government dated the 2nd day of March 1949 in one case and 6th of May 1949 in the other, requiring the plaintiffs to place the subject‑matter of this bequest at their disposal, is illegal, ultra vires and ineffective against the rights of the plaintiffs to hold in absolute ownership the land in suit"
Both the plaints were subsequently amended and instead of the words "is illegal, ultra vires and ineffective against the right of the plaintiff to hold in absolute ownership the land in suit" the following were substituted : "is illegal, ultra vires, ineffective and is not binding on the plaintiff". It would appear that by this amendment the prayer that the plaintiffs held the property in absolute ownership was deleted.
4. Both the suits were very hotly contested by the Govern ment. A preliminary objection was taken to the jurisdiction of the Court of the Senior Sub‑Judge, Lahore (Now Senior Civil Judge), to entertain the two suits. Mr. M. Aslam Khan, the then Senior Subordinate Judge, Lahore, decided this issue against the Government basing his judgment on Shiv Ram and others v. Mst. Ishri and others (A I R 1926 Lah. 450). He held that the suits did not fall under section 16, clause (d) of the Civil Procedure Code and, as the orders which the plaintiffs sought to be declared invalid were passed within the local limits‑ of the jurisdiction of his Court he had the jurisdiction to entertain them. The Government went up in revision against this order which was disposed of by M. Munir C. J. by his order dated 25th of January 1951. His Lordship observed that the aforementioned authority on which the learned trial Court had based his judgment had not only been overruled but set aside on Latters Patent Appeal in the same case by a Division Bench of the Lahore High Court, in A I R 1926 Lah. 503. Thereafter his Lordship considered some other judgments which were produced before him and arrived at the conclusion which can best be understood by reproducing his Lordship's own words:‑--
"In the present case, if Government, acting under the authority which they claim to require the respondent to deliver possession of the property to them, had actually taken possession of the land, and the respondent had sued for possession, there could be no doubt that the Lahore Court would have had no jurisdic tion and the suit could have been cognizable only by the Shahpur Court. In the same way, a suit for confirmation of possession or declaration of title to immovable property can lie only in the Court within whose jurisdiction the immovable property is situated. I cannot construe the present claim by the respondent otherwise than as a claim for confirmation of title and possession to immovable property, though the invalidity of the Government's order under Rule 3 (1) of the Government Servants' Conduct Rules, is set out in the plaint as the main ground to keep the property in the respondent's possession. I, therefore, hold that the learned Senior Sub‑Judge of Lahore had no jurisdiction to proceed with the case which was cognizable only by the Shahpur Court, and direct the plaint to be returned to the plaintiff respondent to be presented to a competent Court in the District of Shahpur".
The plaints were accordingly returned to the plaintiffs on the 13th of March 1951 and‑were preserved to the Senior Sub‑Judge, Sargodha, on the 7th of April 1951.
5. On facts, the suit was resisted on several grounds. In order, therefore, to know the points on which the parties were at variance, instead of reproducing here the pleas of the parties, which would make this judgment unnecessarily lengthy, it will be sufficient to reproduce, in extenso, the issues framed in the two cases, which were incidentally, identical. Originally, only two preliminary issues were framed and they were as under:‑--
(1) Is the suit within time
(2) Was a regular and proper notice served on the defendant
If not, what is its effect
Later on, the parties' counsel agreed that the question of limitation could not be satisfactorily decided without recording evidence on merits as the issue was inter‑wedded with the question whether the order sought to be challenged by the plaintiffs was intra vires or ultra vires. Accordingly, the following further issues were framed in the case, and it was decided that all the issues should be disposed of together :‑
(3) Is the order in question calling upon the plaintiff to place at the disposal of the Government the land in dispute ultra vires of the defendant Government and illegal (O. P. P.) (Onus was objected to by the plaintiff)
(4) If issue No. 3 is proved, what is its effect
(5) If it is proved that the order in question is intra vires of the defendant, then has a Civil Court jurisdiction to entertain the suit
(6) Whether the land in dispute was given to the plaintiff in lieu of services rendered by him in his official capacity to Sir Allah Bakhsh and his party If so, with what effect on the case
(7) Relief.
The evidence of the parties was then recorded. Finally on issue No. 1, the learned Senior Sub‑Judge, Sargodha, arrived at the conclusion that Article 14 of the Pakistan Limitation Act applied to the case and that the suit when instituted in this Court was time‑barred, but that the plaintiffs were entitled to the benefit of section 14 of the Pakistan Limitation Act. Excluding the period from the dates when the plaints were presented to the Court of the Senior Sub‑Judge, Lahore, to 13th of March 1951, be found the suits to be within time. On issue No 2 he held that a proper and regular notice had been served on the defendant. He then discussed issue No. 6 separately in the two cases. In Ch. Nisar Ahmad's case, learned trial Judge dismissed the defendant's conten tion that any service was rendered by him to Nawab Sir Allah Bakhsh. In Ch. Bashir Ahmad Khan's case, the Court went in greater detail and after analysing the whole evidence formed a view that the Government had not proved that the plaintiff rendered any service to Nawab Sir Allah Bakhsh or his party during the election of 1946. He further observed that even if it be assumed that he did render any service to him and his party, it was not possible to connect those services with the bequest in dispute.
6. Learned Judge then discussed issue No. 3 in both the cases. In order to understand his decision on this issue it seems absolutely essential to reproduce here Rule 3 and Rule 9 (in so far as it is relevant to the case) of the Government Servants' Conduct Rules, 1945, in verbatim :‑
"3 (1) Save as otherwise provided in this rule no Government servant shill, except with the previous sanction of the Govern ment, accept or permit any member of his family to accept from any person any gift the receipt of which will place him under any form of official obligation to the donor. If the offer of a gift cannot be refused without giving undue offence, it may be accepted and delivered to Government for decision as to its disposal.
"(2) If any question arises whether the receipt of a gift places the recipient under any form of official obligation to the donor the decision of the Government thereon shall be final".
Holding or acquiring immovable property.
9 (1) * * * * *
(2) No Government servant domiciled in Asia shall, save in good faith for the purpose of residence, acquire any immovable property in India by purchase or gift, except with the previous sanction of the Government."
The learned Judge held that the word "gift" occurring in the above two rules includes "will" and that a Government servant who comes to receive the property through gift or will is "obliged to abide by the Government Servants' Conduct Rules". He then held that Rule 9 applied to immovable property, but Rule 3 only applied to the movable property, and since Rule 3 applied to movable property alone, the impugned orders of the Government in both the cases were ultra vires.
7. On issue No. 4 the learned Senior Sub‑Judge, Sargodha, held that on the date when the suits were instituted, the plaintiffs had taken possession of the land bequeathed in their favour without the sanction of the Government and the Government was, therefore, entitled to proceed against them for having contravened Rule 9 of the Government Servants' Conduct Rules. This contravention, however, he held would not divest the plaintiff's or disentitle them to, the land bequeathed in their favour. The learned Judge consequently decreed both the suits, but left the parties to bear their own costs. The Punjab Province, as it then was called, filed two separate appeals, one against Ch. Bashir Ahmad Khan Tarar and the other against Ch. Nisar Ahmad. Since the points involved in both the appeals are exactly the same, they will be disposed of by this one single judgment.
8. I may at the outset mention that the decision of the learned trial Court in both the cases on issues Nos. 2 and 6 have not been contested before us. Issue No. 5 was not discussed separately by the learned trial Court, and will, therefore, be disposed of while discussing issues Nos. 3 and 4.
9. The first question on which very lengthy arguments have been addressed to us by the learned counsel for the parties is that of limitation. According to the learned counsel for the appellants, the case is governed by Article 14 of the Limitation Act, which provides a period of one year in all suits to set aside any act or order of an officer of Government in his official capacity not otherwise expressly provided for by the Act. The time is to be reckoned from the date of such act or order. He contends that the suits were within time when instituted in the Court of the Senior Subordinate Judge, Lahore, but had become barred by time when the plaints were presented to the Senior Subordinate Judge, Sargodha, on the 7th of April 1951. It is further argued that section 14 of the Limitation Act which lays down that in com puting the period of limitation prescribed for any suit, the time during which the plaintiff had been prosecuting with due diligence another civil proceedings, whether in the Court of first instance or in a Court of appeal against the defendant, shall be excluded whether the proceeding is founded upon the same cause of action and is prosecuted in‑good faith in a Court which from the fact of jurisdiction or other cause of alike nature was unable to entertain it, was wrongly applied. It is most emphatically argued that the plaintiffs were not prosecuting the suit in the Court of the Senior Subordinate Judge, Lahore, in good faith and that the counsel who advised them to file the suits in that Court had committed a mistake which was both stupid and unaccountable and was the result of a total lack of due care and attention on his part. In any case, it is urged that as the counsel who instituted the suits has not put in any affidavit nor has he been examined as a witness in the case, it will be totally wrong to say merely on the affidavits of the plaintiffs that they instituted the suits in the Court of the Senior Subordinate Judge, Lahore, on account of the wrong advice of such counsel, though given in good faith and after due diligence.
10. On the other hand, the learned counsel for the respon dents has strenuously maintained that Article 14 of the Limitation Act does not apply to the facts of these cases and as no other articles in the First Schedule of Limitation Act is applicable thereto, therefore, they are covered by the residuary Article 120 which provides a period of six years from the date when the right to sue accrues which in the instant case would be the date on which the impugned order was passed. The learned counsel has also supported the judgment of the learned trial Court that in case Article 14 of the Limitation Act applies, the plaintiffs were entitled to the exclusion of the time during. which they were prosecuting the suits in the Court of the Senior Subordinate Judge, Lahore, because they were doing so with due diligence and in good faith.
11. It has already been mentioned earlier in this judgment, that the two suits are for declaration that the orders of the Provincial Government requiring the plaintiffs to place the subject matter of the bequest at its disposal were illegal, ultra vires and ineffective against the right of the plaintiffs. These suits are not for setting aside such orders, although that would be the necessary consequence if the declarations demanded by the two plaintiffs are granted in their favour. What has to be seen in this contexts is whether the impugned orders of the Government are void ab initio or only, voidable. In the first case in order to grant the relief to the plaintiffs it is not necessary to set aside such orders but in the second case it is absolutely essential that such orders should be clearly set aside, otherwise no effective relief can be granted to the plaintiffs. In the case where the orders of the Government are void ab initio and it is not necessary to set them aside in order to grant the relief to the plaintiffs, I do not think: that Article 14 of the Limitation Act would have any application, but, in the second case, where the orders are valid, but in order to make them effective they have to be avoided then whatever the language of the plaint, Article 14 would come into play and if brought more than one year after the impugned order is passed the suit would be barred by time.
12. No authority in support of the Government view has been quoted at the Bar by the learned Advocate‑General. The learned counsel for the respondents, however, has quoted the following three authorities:‑--
The Punjab Province v. The Federation of Pakistan (PLD1956FC72). The facts of this case were that the West Pakistan Government, which previously was the Punjab Government, was running a factory at Jallo, called the Jallo Resin and Turpentine Factory. On the 21st of February 1947, an income‑tax Officer served a notice on the managing agents of the Factory requiring them to furnish a return for the Income‑tax of the factory for the assessment year 1942‑43 and by his order dated the 29th of March 1947, he assessed the income‑tax of the Province from this source outside the Province at Rs. 3,06,327. This assessment was followed by others for the years 1943‑44, 1944‑45 1945‑46, 1946‑47, 1947‑48 and 1951‑52. The aggregate tax demand for the whole of this period was Rs. 25,22,556‑9. The Govern ment of West Pakistan first protested to the Central Government and requested it to make a reference under section 213 of the Government of India Act, 1935. The Central Government, however, refused to make a reference and insisted upon the payment of the income‑tax assessed by the Income‑tax Officer. Thereupon, the Punjab Government instituted a suit for declaration that it was not liable to be taxed for its income from the factory including the, factory's commercial activities outside the province of Punjab. The Central Government, inter alia, raised an objection that the suit was barred by time under Article 14 of the Limitation Act. Dismissing this objection the learned Chief Justice of Pakistan, who wrote the judgment, observed as under :‑.
"As regards the objection that the suit is barred by time, all that is necessary to say is that the assessment being void and the tax not having been paid no question of limitation arises. Obviously, the dispute has not been concluded because while the Federation insists on' its right to tax, the Province denies any such power in the Federation, and one of the reliefs claimed in the suit, paras. (b) of the relief clause, seeks a declaration that the plaintiff is not liable to be taxed under the Income‑tax Act of 1922 or the Excess Profits Tax Act of 1940 in respect of its future income."
According to this authority, therefore, if it is claimed that the order of the Government is wholly void, then no question of limitation arises provided the dispute has not been concluded In the present case, the property is still with the plaintiffs and therefore, the above authority has full application to it.
In Prativadi Bhayankaram Thiruvenkatacharyulu v. Secretary of State (I L R 57 Mad. 501) it was held that where the act of the Government in respect of which a declaration and injunction is sought is an act which is illegal or ultra vires and the declaration is sought on that basis, in such a case Article 14 of the Limitation Act has no application.
The same view was taken in Secretary of State v. Abdul Rahim (A I R 1928 Mad. 1246). It was held that where a person was dispossessed of immovable property by a public servant, it is not the order of the public servant that has to be set aside, but the right of the party to possession that has to be determined. It was further held that the party dispossessed is entitled to bring the suit within twelve years from the date of dispossession in other words, Article 14 has no application as no order need be set aside in order to obtain relief. This authority obviously has no applica tion to the facts of the present case except to this extent that if the Government had by Police action taken possession of the land the plaintiff's suit to recover the possession would have been governed by Article 142 of the Limitation Act. In such an eventuality it was not open to the Government to say that suit having not been brought within one year, was barred.
13. All these authorities support the view that if an order of the Government is ultra vires and does not stand in the need of being set aside, then a suit for a declaration that such an order is ultra vires is not a suit which is governed by Article 14 of the Limitation Act. If, however, the act or the order is not ultra vires mere irregularity, making such order will not render Article 14 of the Limitation Act inapplicable. The act referred to in Article 14 does not mean an act which is a complete nullity. I consequently disagreeing with the finding of the learned trial Court hold that Article 14 of the Limitation Act has no application to the two suits and that the only Article which can be made applicable to them is ,the residuary Article 120 of the Limitation Act.
14. Assuming, however, for the sake of argument that Article 14 applies, I am of the opinion that the time spent by the plaintiffs in prosecuting their cases in the Court of the Senior Subordinate Judge Lahore should be excluded. A litigant in order to be diligent can do no better than to engage a senior lawyer in his case. The lawyers, however senior and eminent they may be, are after all human and for that reason fallible. It is the possi bility of the occasional error in the case of the litigants and their counsel that is guarded against by section 14 and other similar sections of the Limitation Act. It will be totally wrong to regard a mistake committed by an eminent lawyer as a matter for which a litigant should be punished, as has been done in this case. The plaintiffs engaged Mr. Muhammad Yaqub Ali, now Mr. Justice Muhammad Yaqub Ali, who was the leading member of the Bar at the time when these suits were instituted. Mr. Yaqub Ali might have very honestly and in the right earnest thought that as these suits were for declarations that an order passed by the Government is void ab initio, therefore, the Court within whose jurisdiction such order was passed can alone take its cognizance. It is true that the authority which he quoted in the trial Court and on the basis of which he obtained order in his favour had been overruled in a Letters Patent Appeal in the same case, still his 6onafide or due diligence, in my view, could not be questioned. In the above view of the matter, therefore, the suits when they were instituted in the Court of the Senior Subordinate Judge, Sargodha, they were clearly within time.
15. The next and the last point which has been argued before us at very great length is that the word "gift" occurring in rules 3 and 9 of the Government Servants' Conduct Rules includes "will". The learned Advocate‑General in support of his contention has quoted Jatindra Mohan Tagore v. Ganendra Mohan Tagore (9 Ben: Rep. 377). In this case the property involved was the self‑acquired and ancestral property of one Prasanna Kumar Tagore, a Hindu inhabitant of Calcutta, who died leaving behind a son and two widowed daughters with his six grand‑children. With regard to his property he had made a will which provided for his daughters and the grand‑children and made no provision for his only son, stating that he had already been provided for in his lifetime. His son, after his death, started litigation which turned upon the validity of the will. The appeal to their Lordships of the Privy Council arose out of this litigation. It appears that in their Lord ships' opinion, while the law with regard to the gift by a Hindu governed by Daya Bhaga law was clear, the same could not be said in regard to a will made by him. Willes, J., who delivered the judgment of their Lordships of the Privy Council, observed that the power of parting with property once acquired so as to confer the same property upon another must take effect either by inheritance or transfer, each according to law. Inheritance in the opinion of his Lordship, did not depend upon the will of the individual owner, while the transfer did. Inheritance was, in his Lordship's opinion, a rule laid down by the State not merely for the benefit of the individual but for reasons of public policy. It, therefore, directly followed from this that a private individual who attempted by gift or will to make property inheritable otherwise than the law directs, must be considered to assume to legislate and that the gift must fail and the inheritance take place as the law directions. His Lordship then discussed the incidents of gift and the general principles applicable thereto. Eventually, he arrived at the conclusion that the rules which governed the transfer by gift also governed the transfer by will, because the transfer by will is also a gift with this difference that the disposition of property by gift takes effect immediately, while in the case of the will it takes effect at the death of the donor, though revokable in his lifetime, is until revocation a continuous act of gift up to the moment of death and does then operate to give the property disposed of to the persons designated as beneficiaries. By making the following comments, his Lordship applied the same principles to the disposi tion of the property by will as were applicable to the disposition of the property by gift:‑--
"Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them and to abandon all analogy to them, in those to which they had not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to us to be of great importance to keep this principle steadily in view, not merely for the determination of this particular case, but for the interests of law as a science. The analogous law in this case is to be found in that applicable to gifts, and even if wills were not universally to be regarded in all respects as gifts to take effect upon death, they are generally ‑so to be regarded as to the property which they can transfer, and the persons to whom it can be transferred."
From the above observations it will be quite clear that their Lord ships of the Privy Council regarded will as a gift only for a limited purpose, viz. as to whether the testator has the power to will away the property and to whom. It is no authority for the view that in all cases a gift should be considered to be a will, or to put it in other words, a will must always be taken to be a gift.
16. The learned Advocate‑General then quoted a Full Bench authority Mst. Bano v. Fateh Khan and another (48 P R 1903), in which it was held by majority, Clark, C. J. dissenting, that the distinction under the Punjab Customary Law between the power of gift inter vivos and power of testation is a matter of degree and form only, and where power of gift is shown to exist an initial presumption arises that there is a co‑extensive power of testation Clark, C. J., however, held that there was a marked distinction between the power of gift and the power of will, and that though the existence of a power of gift is a strong point in favour of the party asserting a power of will it is not sufficient to relieve him of the onus of proving the existence of the latter. The majority view in this case was followed by Fazal Khan v. Anwar (A I R 1928 Lah. 489), Pehlwan Khan v. Bagga and others (A I R 1929 Lah. 192) and Mst. Fatima v. Sharaf Din (A I R 1946 Lah. 426). In all these authorities it was not held that the gift and will were synonymous terms.
All that was held was that where in a tribe a right to gift away the property is recognised, then a very strong evidence will be required to prove that a right to will away the property does not exist. This by itself shows that gift and will are two distinct transactions but in certain respects the same rules will govern them both, because they are the gratuitous transfers of property by one person to another and that is the only common features between the two.
17. Gift is defined in section 122 of the Transfer of Property Act as under:‑--
"Gift is the transfer of certain existing movable or immov able property, made voluntarily, and without consideration by person called the donor, to another called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before the acceptance, the gift is void."
From this definition it will be seen that one of the essential ingredients of the gift is that it should be accepted by or on behalf of the donee during the lifetime of the donor and while he is still f capable of giving away the property. In the case of the Muslims, another essential ingredients is that it should be accompanied by possession.
18. A will on the other hand is a disposition of property which takes effect after the death of the testator. It presents different situation in different laws. It may be wholly void or partly valid and partly void, depending upon the law which governs the testator. If he is governed by Hindu Law, then the will be governed by the Mitakshara Law or Dayabbaga Law as the case may be. If, however, he is a Muslim, it has to be seen whether he follows the school of thought known as Hanafi Law or the one commonly called Shia Law. Christians and Parsis have their own law which governs the wills made by them. If the will is valid according to the law which governs the testator, then it has to take effect only after certain liabilities of the testator are met from his estate, for example his funeral expenses and the debts. Unlike the gift it does not take effect immediately after it is executed, but becomes operative only on the death of the testator which may not take place for several years to come. Until then it remains only a wish, not even a promise to give away the property of the testator. He may change his mind at any time without assigning any reason or observing any formality. The possibility that by the time the testator dies it may lose its value altogether cannot be excluded. But if the will is not revoked and it is otherwise valid, then immediately the death of the testator takes place, the property willed away vests in legatee, irrespective of the fact whether he accepts the bequest or not. In the case of the gift before delivery, it can be revoked, but after delivery it cannot be revoked if made in favour of person related to the donor within a prohibited degree or it is between husband and wife or vice versa. Other gifts may in general be revoked unless there is some special cause to prevent it. It will thus be seen that the gift and will stand on absolutely different footings both in their effect or essential ingredients.
19. It is an elementary principle of law that for those who claim to interfere with the, property of others should be able on demand to give a clear account of the source, context and scope of that authority. It, therefore, lies heavily on the Government to show, since it claims to interfere with the property of the plaintiffs, that will is the same thing as gift and, therefore, under rule 3 of the Government Servants Conduct Rules, it can call upon the legatees to place the property at their disposal. It should at once be conceded that the principles which regulate the interpreta tion of the statutes must be taken to regulate the interpretation of the rules as well. The true position seems to be that the words used in the rules, as in the statutes, should, in the first instance, be read in ordinary and natural sense and should be modified or altered only in so far as it may be necessary to avoid t, some manifest absurdity, palpable injustice or anomaly. An endeavour has to be made to appreciate the general object for which the rules were made. Such construction should of placed upon the rules which should suppress the mischief and advance the remedy. All attempts to stable intrusion and invasion for the continuance of the mischief must be suppressed and force and life added to the cure and remedy.
20. Looking at rule 9 of the Government Servants Conduct Rules in the light of the above observation, I am prepared to give a liberal meaning to the word "purchase" as including any acquisition of the property whether by way of mortgage or exchange, because otherwise the purpose for which rule 9 is made, that the Government servant should not acquire any property without the previous sanction of the Government, which is to maintain the integrity and honesty of the Government servants, will be totally defeated. It will, however, be a little too much to say that the devolution of the property by will should be taken as the devo lution of the property by gift. What the rules intend to guard against was the conduct and act of the Government servant which might interfere with the honest discharge of his duties. If the property devolves upon a certain person without any act or con duct on his part, then I do not see how do the rules come into h play at all. Take for example inheritance. A person inherits the property without any will of his own. It will be totally wrong to say that the acquisition of the property by inheritance is also covered by rule 3 or 9 of the Government Servants Conduct Rules and such an acquisition will be bad if', not sanctioned by the Government. It is necessary to see that under rule 3, the words used are "No Government servant shall, except with the previous sanction of the Government, accept or permit any member of his family to accept." Where therefore, there is no question of acceptance, there is no question of rule 3 as well. Similarly in, rule 9, the words used are "No Government servant shall, save in IV good faith for the purpose of residence, acquire any immovable' property with the previous sanction of the Government". Both rules 3 and 9 envisage acquisition of the property with the pre, vious sanction of the Government, and the use of the wore "previous" indicates that before the property vests in a certain person, sanction of the Government should be taken. In the case of the will, when the property vests in the legatee, the stage of the previous sanction of the Government has already passed. If, therefore, will is the same thing as gift, then no acquisition of the property by will is possible, because there cannot be in such a case the previous sanction of the Government.
21. Previous history of the Government Servants' Conduct Rules also supports the view that the word "gift" does not include "will". In the Government Servants Conduct Rules of 1919, a member of the Indian Civil Service or one who field any office ordinarily reserved for members of the Indian Civil Service and any Government servant belonging to the Provincial or Subordi nate Civil Services might continue to held any immovable pro perty actually held by him at the time of his entry into Government service, and was allowed to acquire thereafter any immovable property by succession, inheritance or bequest, or with the previous sanction of the local Government or such Heads of Departments as was specially empowered by the Local Government in this behalf by purchase or gift. The rules were then amended in 1926‑28 wherein all that was mentioned was that a Government servant who was domiciled in Asia should not, save in good faith for the purpose of residence, acquire any immovable property in India by purchase or gift without the previous sanction of the Local Government. It would thus appear that at the time the rules were amended, i.e. in 1926‑28, the framers of the rules had very much in their mind the acquisition of the property by will which was placed on the same level with inheritance. They did not prohibit such an acquisition but made only those acquisitions illegal in which the act or the conduct of the Government servant was involved, namely, his acceptance of the gift or paying the money for the purchase of the property.
22. The learned trial Court in holding that the will is the same thing as gift observed that the law did not allow a Govern ment servant to accept after the giver's death what he was debarred from accepting in the lifetime of the donor because the same offended against the rules of service and sullied the Government servant's integrity. This argument is wholly fallacious. If a Government servant does something illegal for a certain individual and in lieu of that he is given certain property, then the transfer will be bad under section 23 of the Contract Act which makes ail agreements illegal the consideration of which is forbidden by law o or is of such a nature that if permitted it would defeat the pro visions of any law or is fraudulent or is immoral or opposed to public policy.
23. Rules 3 and 9 of the Government Servants' Conduct Rules do not apply where the purchase or the gift is wholly invalid. Their application is attracted only when the property validly passes on to the Government servant or to the members of bt5 family over whom he has the control and not when the property does not vest in them at all. Supposing if the purchase and gift are invalid in their inception, then the previous sanction of the Government will not validate them. If a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any property as a motive or reward for doing or for forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, then the acquisition will be wholly void. The property in such a case does not pass on to the Government servant. So in such a case there is no question of the Government servant obtaining sanction for the same or placing it at the disposal of the Government servant. Similarly, if the acquisition of the property by the Government servant is without consideration, then except in the cases mentioned in section 25 of the Contract Act such acquisition will be totally void. In the like manner if the property is obtained by coercion or fraud or misrepresentation or under undue influ ence, then the acquisition of the property is voidable at the option of the owner of the property. Government does not come into the picture at all. It can only come into the picture when the property legally and validly vests in the Government servant. Rules 3 and 9 are in fact meant to keep a general watch on the Government servant.
24. If otherwise a property has validly vested in the Govern ment servant either by way of purchase or by way of gift, then the Government servant in my opinion cannot be divested of that property merely because the previous sanction of the Government was not obtained. The only remedy which is open to the Govern ment in that case is to take departmental action against the Government servant for violating the rules.
25. Rule 3 read as a whole, in my opinion, cannot apply to the will not because, as was argued at the Bar by the learned counsel for the respondent, a Government servant cannot S be placed under any form of any obligation to the testator after his death, but because he cannot, at the time when the property vests in. him, except the property willed away in his favour for fear of giving undue offence to the testator. Whereas a Government servant may continue to be under the obli gation of the testator even after his death for giving the property T to him by will and for that reason may show favour to his some or other relations but he cannot certainly accept the property in order to avoid giving offence to the dead person. I am, therefore of the opinion that the judgment of the learned trial Court that the word "gift" used in rules 3 and 9 of the Government Servants' Conduct Rules includes "will" is wholly incorrect. It is quite impossible for me to hold gift to include will for the reason that in the head‑notes of certain sections of the Succession Act or in some British Judgments, "Will" is described as "Gift by will." v Will is given this name because both gift and will are gratuitous giving away of the property otherwise I hardly see anything common in them. Both of them stand on absolutely distinct footing.
26. The next question which requires determination is whether rule 3 applies to the movable property only and not to the immov able property as has been held by the learned trial Court. I agree with the learned trial Court that rules 3 and 9 of the Government. Servants' Conduct Rules do not overlap each other. Under rule 9i a Government servant must obtain the previous sanction of the Government if he acquires any immovable property by purchase or by gift except if he acquires it for residential purposes. Under rule 3 the Government servant or any member of his family is precluded from acquiring any property by way of gift even if it is for residential purposes without the previous sanction of the Government provided such acquisition places him under any form of official obligation to the donor. Under the second sentence of rule 3, sub‑rule (1), if the offer of a gift cannot be refused without giving undue offence, it may be accepted and delivered to Government for decision as to its disposal. There is no indication whatsoever in rule 3 that it applies only to the mov able property and not to the immovable property. A person may accept an offer of a gift of the immovable property if he wants to avoid to give offence to the giver thereof just as much as he can do so in the case of movable property. I see no justification whatsoever to restrict the application of rule 3 to movable property simply because in sub‑rule (3) a Government servant is allowed u to accept a complementary gift of flowers, fruit or similar articles of trifling value. If rule 3, as has been held by the learned trial Court, only applies in the case of movable property, then gift of immovable property to the members of a Government servant's family or to himself for residential purposes even if it places him under the official obligation of the donor will be permissible because that is not covered by rule 9 of the Government Servants' Conduct Rules. That cannot, in my opinion, be the intention of the rule‑making body.
27. As I have already held that "will" does not come within the mischief of rule 3 or rule 9 of the Government Servants' Con duct Rules, therefore, the necessary result will be that the plaintiffs will get the decree prayed for although not on the ground on which they have been granted the decree by the learned trial Court but on a different ground altogether. In this view of the matter, then both the appeals filed by the Government fail but considering that difficult questions of law and fact were involved in the case, I would leave the parties to bear their own costs throughout.
K.M.A. Appeal rejected.
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