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Civil Appeal No. 63 of 1961, decided on 29th November 1962.

(On appeal from the judgment and order of the Evacuee Property Inquiries Tribunal, Karachi, dated the 20th July 1960, in Reference No. 26 of 1960.)

S. 43‑A read with S. 22‑Reference to Tribunal competent even if non‑evacuee character of property was declared by Custodian on an application under S. 22, which owner of such property was obliged to make on account of some illegal action of Rehabilitation Authority.

S. 43‑A(2)‑Does not contemplate successive declarations in respect of property of same person except where change of status has occurred after earlier declaration ‑ Later declaration made after 1‑1‑1953 will not thereby become a case which could be referred to Tribunal.

, Ss. 43‑A & 43‑B‑Scope and meaning.

‑Adoption‑General incidents of.

‑Property purchased with income of joint property forms part of such property.

‑Partition‑Wife cannot ask for, but shares in, partition.

Abdus Sattar Pirzada Senior Advocate Supreme Court with G. H. Abbasi Advocate Supreme Court instructed by Muhammad Ali Sayed Attorney for Appellant.

Tufail Ali A. Rahman Attorney‑General for Pakistan with Fakhruddin Ibrahim Advocate Supreme Court instructed by Shafiq Ahmad Attorney for Respondent.

Dates of hearing: 27th and 29th of November 1962.

‑-- This is an appeal by special leave against an order of the Inquiry Tribunal appointed under section 43‑A of the Administration of Evacuee Property Act. By an order dated the 5th April 1958, Mr. Rabat Hussain, an Assistant Custodian of Evacuee Property, Nawab Shah, had on an application by Perumal the appellant before us, granted to him the following declarations: ‑

(i) That be and his three sons Motimal, Ishu Kumar and Sridhar, his daughter Nirmla Devi and his wife Sami Bai who constituted a joint Hindu family were all non‑evacuees;

(ii) That 67 acres out of agricultural land and two open plots and two houses were the ancestral properties of this joint family;

(iii) That the remaining property mentioned in the list attached to the application was the self‑acquired property of Perumal and

(iv) That the fourth son of Perumal i.e., Teju Ram bad passed out of the joint family having been adopted by Gopaldas brother of Perumal and had no longer any interest in the property of this joint family.

Against this order of the Assistant Custodian the Central Government made a reference under section 43‑A of the Adminis tration of Evacuee Property Act claiming that Perumal and his brothers as well as their descendants formed a joint Hindu family which owned a large amount of property including that which was claimed by Perumal as his self‑acquisition or as the property of the joint Hindu family of which he was the Karla and father. The Tribunal appointed under section 43‑A of the Administration of Evacuee Property Ordinance came to the following con clusions

(a) that there bad been a partition amongst Tejumal and his brothers in 1939 by means of a registered deed and that hence forth Perumal and his sons, his daughter and his wife constituted a joint Hindu family by themselves

(b) that 113 acres (and not 67 acres as stated by the Assistant Custodian) of agricultural land as well as urban immovable property consisting of shops, store houses, plots of lands and buildings had fallen to the', share of this joint family in

(c) that even the property which was claimed by Perumal as his self‑acquisition belonged to this joint Hindu family; and

(d) that Tejumal was an evacuee and he was a son of Perumal and had not been adopted by Gopaldas.

It would be observed that this order is in favour of the appellant except that it holds the whole of the property in dispute to be joint family property and it does not accept that Tejumal was adopted by Gopaldas but finds that he is still a member of this joint family and is entitled to a share in the property of this joint family. This appeal is, therefore, confined to the right which Tejumal may have in the properties in dispute and the argument on the merits will be limited to two points‑

(i) whether Tejumal was adopted by Gopaldas (it being conceded that he is an evacuee); and

(ii) whether any part of the property in dispute is the self acquired property of the appellant.

Learned counsel for the appellant has in the first place challenged the jurisdiction of the Tribunal to bold that any part of the property in dispute is evacuee property. In order that this contention may be appreciated it is necessary to state some facts. In 1949 the name of the appellant was included in the list of evacuees maintained by the Rehabilitation Department and on the 14th of October 1949, the Rehabilitation Commissioner declared the lands and other properties belonging to the appellant to be evacuee properties and available for allotment. Against this order of the Rehabilitation Commissioner the appellant filed an appeal before Mr. Akbar Hussain, Custodian of Evacuee Property. On the 8th of February 1950, Mr. Akbar Hussain, recorded the statement of the appellant. In this statement the appellant claimed that he had been living in Pakistan throughout and that an area between 450 and 470 acres of land was his self‑acquired property. On the basis of this statement, on the 9th of February 1950, Mr. Akbar Hussain, passed an order the whole of which is reproduced below: ‑

"Perumal son of Hemraj has been living in Pakistan. His wife and minor children are said to have gone to Jodhpur for condolence on the occasion of the death of Perumal's mother who was separate from him. He has obtained a permit to go and fetch them.

I am satisfied that the appellant is not an evacuee and his holding of about 475 acres not evacuee property.

"I refer the case to the Government under section 3, Ordinance XV of 1949."

The Central Government by its order dated the 17th May 1950, held that the appellant was a non‑evacuee and in accordance with this order there was a declaration by the Custodian too of the non‑evacuee status of the appellant. In 1954, on an appli cation filed by Maulana Abdul Qadus Bihari, Mr. .M. M. Qureshi, Assistant Custodian of Evacuee Property, Nawabshah, made an inquiry into the question whether the appellant was an evacuee and having come to the conclusion that he was in fact an evacuee he declared that the whole of the property which is in dispute in the present appeal was evacuee property and was open to allotment. The operative part of his order said: ‑

"The land is treated as evacuee property and is open to allotment. The D. R. C. be informed immediately."

It is to be noted that this order had been passed only in order that the property in dispute may be treated as evacuee property and was not order on an application under section 18 of the Administration of Evacuee Property Ordinance. Such an applica tion becomes competent only after property is treated as evacuee property by a Rehabilitation Authority or the Custodian. The appellant then filed a regular application under section 22 of the Administration of Evacuee Property Act (same as section 18 of Ordinance XV of 1949) claiming that he was non‑evacuee and the property in dispute was not evacuee property. It is in this application that Mr. Rahat Hussain, Assistant Custodian, granted a declaration to the appellant which declaration was made the subject‑matter of a reference to the Tribunal under section 43‑A of the Administration of Evacuee Property Act.

Before proceeding to consider the argument addressed to us it will be convenient to reproduce sections 43‑A and 43‑B of the Administration of Evacuee Property Act, 1957. They run: ‑

"43‑A. (1) The Central Government may, by notification in the official Gazette, constitute a Tribunal, to be called the Evacuee Property Inquiries Tribunal, consisting of not less than two members, one at least of whom shall be a person who is or has been a Judge of High Court.

(2) If in any case in which a Custodian has on or after the first day of January 1953, declared any evacuee or any evacuee property to be a non‑evacuee or non‑evacuee property, as the case may be, the Central Government may, notwithstanding anything contained in this Act or in any other law for the time being in force, refer the case to the Tribunal.

(3) Where a case is referred to the Tribunal under sub section (2), the Central Government shall send to the Tribunal a statement of the case together with the record relating thereto.

(4) The Tribunal may, after perusal of the record and the statement, confirm the decision of the Custodian, or hold such inquiry as it may consider necessary, and in doing so, call for report from the Custodian or any other authority, and take any further evidence, and may pass such order as may be deemed fit:

Provided that the Tribunal shall not pass any order modi fying or reversing the declaration of the Custodian without giving the person affected thereby an opportunity of being heard.

(5) All questions before the Tribunal shall be decided in accordance with the opinion of the majority of its members, and, if the members are equally divided in opinion, in such manner as may be prescribed.

43‑B. Any order passed by a Custodian declaring any evacuee to be non‑evacuee or any evacuee property to be non evacuee property shall take effect and be deemed always to have taken effect subject to the order of the Tribunal under section 43‑A."

In respect of the question of the jurisdiction of the Tribunal the first contention of learned counsel for the appellant is that if (here has been a declaration as to the non‑evacuee nature of property before 1st January 1953, any subsequent declaration as to the same property which may be necessitated by an ultra vires act of Rehabilitation Authority or any Custodian is not a declaration which can empower the Central Government to make a reference under section 43‑A. According to learned counsel there had been a declaration in this case of the non‑evacuee nature of the property in dispute by Mr. Akbar Hussain on the 9th of February 1950, and the interference by the Assistant Custodian in 1954 in the face of the order of Mr. Akbar Hussain was wholly unwarranted, illegal and ultra vires and as it was this ultra vires order of the Assistant Custodian which forced the appellant to file an application under section 18 of Ordinance‑XV of 1949 for a declaration of the non‑evacuee nature of his property, the whole of the proceedings under section 18 should be regarded as null, void and non‑existent so that they could not afford any occasion to the Central Government to make a reference under section 43‑A. The second contention is that the Inquiry Tribunal appointed under section 43‑A has no juris diction while deciding a case before it to over‑ride any order by a Custodian before 1st January 1953, declaring the property to be non‑evacuee property. This, learned counsel says, is the effect of section 43‑A which debars the Central Government from impeaching an order that is passed before 1st January 1953.

To consider the first of these contentions we do not see an good ground for holding that an order declaring a person to be non‑evacuee will not attract the operation of section 43‑A just because it was passed on an application which had to be submitted because of some illegal action of the Rehabilitation Authorities or a Custodian. In fact whenever the Custodian holds a person in a proceeding under section 18 of Ordinance XV of 1949 to be non‑evacuee and his property to be non‑evacuee property, he does hold that the action already taken by the Rehabilitation Authorities in connection with his property is illegal. An application under section 18 is competent only if the property in dispute was treated as evacuee property by a Rehabilitation Authority or the Custodian. This is clearly stated in section 18. Therefore, whenever a person applies under section 18 he has to assert that the action taken by the Rehabilitation Authorities is illegal and ultra vires and if the Custodian grants him a declaration it amounts to saying that the action of tile Rehabilitation Authorities was ultra vires. To say, therefore, that if the action of the Rehabilitation Authorities was ultra vires the declaration is non‑existent and therefore does not affect the operation of section 43‑A is not an acceptable argument.

There is, however, a more plausible method of arguing the contention raised by the appellant and that is this. If there already exists an order passed by the Custodian declaring some property to be non‑evacuee property and if the Rehabilitation Authority or an Assistant or Deputy Custodian treats such property as evacuee property without claiming that there has been, subsequent to the declaration by the Custodian, any change of status, and in consequence of this action of the Rehabilitation Authority or Assistant or the Deputy Custodian, the person concerned is forced to approach the Custodian a second time, then it is not necessary for the Custodian to declare that person to be non evacuee and his property to be non‑evacuee property, and all that he needs say is that there is already a declaration in his favour and no further declaration is needed, as there is no allegation of any change of status after the previous order was passed. The law does not contemplate successive declarations in respect of the property of the same person or in respect of the status of a person except where a change of status is said to have occurred after the existing declaration. If in the second proceeding they Custodian simply says that another declaration is not needed section 43‑A will not be attracted in respect of this order for there is no second declaration by the Custodian. But if in the second proceeding the Custodian instead of saying that there is no need of afresh order does grant a second declaration should that fact prejudice the party The first declaration having been made before the 1st of January 1953, could not be made the subject of a reference under section 43‑A. In the second proceeding the proper order to pass was only this that a second declaration was not needed. If the Custodian instead of passing the proper order grants a declaration should the status of a person or the nature of his property which is not liable to an attack under section 43‑A be made so liable because of the inappropriate wording of his order It appears reasonable to Suggest that if he does grant a second declaration it should not be regarded as a fresh declaration, but only as a recognition of the fact that the previous declaration which prevents the Rehabilitation Authority or the Assistant or Deputy Custodian from treating the property as evacuee property does exist.

However, in the present case the argument fails on facts. This is not a case where a second declaration was unnecessary and the Custodian had simply to say that a declaration existed. The appellant had himself taken up inconsistent positions in the two proceedings and the declaration already granted by the Custodian was not the one which he asked for in the second proceeding. In the first proceeding he had stated that the whole of the property that is 450‑475 acres were his self‑acquired property in which there was no co‑sharer. It would be convenient to reproduce the statement which he made before Mr. Akbar Hussain,

He said :‑

"I own between 450‑475 acres of land which is my self acquired property. I have no partner."

The word partner' means here only co‑sharer for there is no reference in the statement to any business. There was no mention in this statement of any joint family or member of a joint family or any joint family property. In the application under section 18, however, which was heard by Mr. Rabat Hussain, the appellant took up an entirely different position. He stated therein that he and his three sons, his wife and daughter constituted a joint Hindu family, that the property which had fallen to his share in the partition of 1939 was the property of this joint Hindu family and that the remaining property was his self‑acquired property.

The declaration which the appellant secured from the Assis tant Custodian on the 5th of April 1958, has already been narrated above and need not be repeated. It was quite different from the declaration made by Mr. Akbar Hussain in 1950. In fact the order of Mr. Akbar Hussain was not, as we will presently show, intended to state the extent of the property owned by the appellant, but quite apart from that question the second declaration was not an unnecessary one and it could not be said that it was only a recognition of an already existing declaration. The contention, therefore, that the order of Mr. Rabat Hussain could not be made the subject of a reference under section '43‑A is of no force.

We take up now the second contention in respect of jurisdic tion. It is urged that even if the reference was competent the Tribunal had no jurisdiction to go behind the order of Mr. Akbar Hussain which he had passed on the 9th of February 1950, holding 475 acres to be non‑evacuee property for section 43‑A as not permit the Cent al Government to impeach orders passed by the Custodian before 1st January 1953 and the provisions of this section will be defeated if in a competent reference the Tribunal could ignore an order which the Government could not impeach.

A look at section 43‑B will show that the contention put forward by learned counsel is not quite consistent with the provi sions of this section. This section provides that the order of the Tribunal will supersede any order passed by the Custodian. It does not say that an order passed before the 1st January 1953, will bind the Tribunal.

The section gives full authority to the Tribunal to decide the question as to the evacuee nature of the property involved or the status of the person concerned and places no limitation on the exercise of this jurisdiction. Once there is a competent reference before a Tribunal it has jurisdiction to decide the matter before it without being bound by any order passed by the Custodian. Learned counsel contends that on this interpretation the Tribunal may on account of a wholly superfluous order passed by a Custodian declaring property to be non‑evacuee after 1st January 1957, get jurisdiction to set aside an order relating to the same property passed before 1st January 1953, which order, by the words of section 43‑A could not be the subject of a reference and was not liable to attack. One answer to this objection is that this situation will never arise for the law does not contemplate, as has already been explained, the making of a second order without a change of circumstances. But in any case section 43‑B has to be applied as it stands. We cannot read into it a limitation which is not there nor can we say that the failure to make an exception in this section with respect to orders passed before 1st January 1953, is due to a slip. These two sections were added at one time and the limitation mentioned in section 43‑A should have been present to the mind of the draftsman when he drafted section 43‑B and the omission of any limitation in section 43‑B11 should be regarded as deliberate.

In any case the appellant fails in this contention on facts, because we are not prepared to interpret the order of Mr. Akbar Hussain as a declaration with respect to the non‑evacuee nature of the property now in dispute. The only proceedings taken before Mr. Akbar Hussain were that he recorded the statement of the appellant wherein the appellant said that he was not evacuee and on the basis of this statement he passed the short order which has already been reproduced verbatim. It is clear that Mr. Akbar Hussain never went into the question as to what property was owned by the appellant. By referring to 475 acres Mr. Akbar Hussain was only reproducing the area given in the statement of Perumal and apparently all that he wanted to say was that what ever property was owned by Perumal was not evacuee property. The order of Mr. Akbar Hussain that the property which belongs to Perumal is not evacuee is not intended to determine the question of the extent of that property.

At the same time it is difficult to appreciate this contention in view of the fact that the appellant himself concedes the order of Mr. Akbar Hussain to be incorrect. According to him 113 acres out of this land is joint family property.

On the merits learned counsel for the appellant has challenged the findings of the Tribunal that Tejumal had not been adopted and that there were no self‑acquisitions by the appellant. In respect of the adoption of Tejumal the appellant had made his own statement, had filed an affidavit of Gopaldas his brother and had produced three persons, Qaim Khan, Ahsan Khan and Mod as witnesses of the adoption. Qaim Khan and Ahsan Khan were not present at the adoption ceremony and Qaim Khan was only a tenant of the appellant. There were a number of circumstances relied upon by the Tribunal for the finding that Tejumal had not been adopted by Gopaldas and after going through the record we find this finding of the Tribunal to be fully justified. In his statement recorded on the 8th of February 1950, Perumal had stated that he had three sons who were 16, 9 and 3 years of age respectively, In the statement which he made before Mr. Rahat Hussain five or six years later, wherein he claimed that Tejumal had been adopted by Gopaldas, he stated that he had, including Tejumal, four sons, Tejumal being 22 years of age, Moti Ram 12, Ishu Kumar 10 and Sridhar 3. It is clear that Sridhar who was three years of age at the time of the later statement was not yet in existence on the 8th of February 1950, when the appellant made his statement before Mr. Akbar Hussain. As he admitted having three sons on that date, it is clear that he had accepted Tejumal to be his son. His case now is that Tejumal had been adopted by Gopaldas in 1940. This is inconsistent with his statement before Mr. Akbar Hussain. Also the son which is described as 16 years old in 1950 can be no other than Tejumal because even at the time of his later statement Moti Ram was aged only 12 and Ishu Kumar only 10. When we asked learned counsel for the appellant to state to whom the age of 16 years in the statement of 1950 could refer, learned counsel said it refer red to Moti Ram. When it was pointed out to him that even at the time of the later statement Moti Ram was only 12, learned counsel said the age had not been given correctly. This is a wholly unsatisfactory explanation. A son who was at the time of the earlier statement only about 6 years old could not have been described as 16 years old.

Adoption in Hindu law is a formal act having far reaching consequences material as well as spiritual and it is generally evidenced by a document. By adoption a person passes out of the family to which he belonged by birth and is transplanted into the family which adopts him. In the present case not only is there no documentary evidence, but no other evidence of any value has been produced. There is no affidavit by Tejuram himself. Tejuram was entitled in India as a refugee to property on the basis of the property which he had left in Pakistan and he could very well file an affidavit that the property he received was in lieu of the property of that joint Hindu family of which Gopaldas was the father and Karta. There is a good deal of force also in the observation of the Tribunal to the effect that it was quite easy to produce school registers wherein the parentage of Tejumal would be stated. It was the case of appellant himself that Tejumal had been receiving education in Jodhpur.

The next point is as to whether any part of the property was the self‑acquisition of the appellant. It is an unquestioned principle of Hindu law that if a nucleus of joint property exists by the income or out of the proceeds of which the property which is claimed as self‑acquisition of any particular member of the family may have been acquired, such property will be presumed to be the property of the joint Hindu family till the contrary is proved. In the present case there is a nucleus not only of 113 acres of land, but of urban property and cash and ornaments as will appear from the partition deed of 1939. Even the urban property was producing an income of Rs. 100 a month as accepted by learned counsel for the appellant before the Tribunal. The lands which were subsequently acquired were barrage lands purchased on installments and there was no contention before the Tribunal that the installments payable could not have been met out of the income of the joint family property. The appellant admits that he does not carry on any business. The only explana tion which he gave for his self‑acquisition was that he was taking other land on lease, but he admitted that there was no document which could support this assertion. It was his own bare word which the appellant wanted to be accepted as sufficient proof of the property being his self‑acquisition. This contention of appel lant is without force.

There is one contention, however, which is not mentioned in the petition, but was urged at the hearing and in which we find force. The Tribunal found that Tejumal was entitled to 1/5th share of the property. It had not been urged before the Tribunal that Tejumal would only have been entitled to 1/6th share at' partition, because a wife is also entitled to a share equal to that of a son though she is not herself entitled to demand partition. The wife of Perumal is admittedly alive. Tejumal would, there fore, be entitled only 1/6th share of the whole of the property. While this appeal fails otherwise it is accepted to the extent that the share of Tejumal which is held to be evacuee property will be only 1/6th and not 1/5th of the whole of the property of the joint Hindu family.

A. H. Order accordingly.

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