GOPI CHAND Versus PEHLAJ RAI

By this judgment I propose to dispose of R.F.A. No.45 of 1989, R.F.A. No.46 of 1989 and R.F.A. No.49 of 1989; since the facts and law points are identical in all the aforesaid appeals.

2. Brief survey of the facts would reveal that two Hindus namely Teju Mal and Vehra Mal had joint family at Sibi and owned joint property consisting of a house and shops. Teju Mal died issueless leaving behind his widow Mst. Mati Bhoji. However, Vera Mal migrated to India during partition therefore, his property was declared as evacuee property. Through a partition the share of Teju Mal in the joint property was defined and specified by the Custodian whereby houses bearing Municipal No.4-2/91-1, 2, 3, 4, 5, and Shops No.4-2/47, 4-2/48 situated at Masjid Road Sibi fell to his share. These premises are in possession of appellants in R.F.A. No.45 of 1989 except House No.4-2/91/4.

3. Widow of Teju Mal acquired this property as Hindu Women's Estate. It is the case of the appellants in R.F.A. No. 45 of 1989 that Mst. Mai Bhoji was entitled to limited rights during her life time, therefore, she had no authority under Hindu law nor any right to sell, dispose of, alienate or mortgage the property. However, Mst. Bhoji mortgaged her property with constructive possession to PhelaJ Rai on 4th of August, 1969 through a written mortgage deed with further condition that if the mortgage was not redeemed within one year, the mortgage shall be considered as a sale to Pehlaj Rai. It is pertinent to point out that appellants (in R.F.A. No.45 of 1989) were tenants in possession of the premises except House No.4-2/91-1. They raised objection on the alienation contending that this mortgage deed was an instrument based on fraud because Mst. Bhoji had left for India and had died there. However, Phelaj Rai requested through an application to Tchsildar-cum-Sub-Registrar Sibi for registration of the mortgage deed. Since the registration was questioned by the tenants, therefore, Sub-Registrar solicited instructions from the Registrar-cum-Deputy Commissioner Sibi about registration of the deed. Registrar advised Sub-Registrar to desist from registering the instrument unless the matter is decided by a competent Court of law. Nonetheless the Sub-Registrar registered the document on 20th November, 1969. After getting the document registered Phelaj Rai filed ejectment proceedings against tenants under section 13 of West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The tenants, however, contested the proceedings by challenging ownership of Phelaj Rai on the ground that in fact mortgage deed was forged and fictitious. After proceedings under the Rent Restriction Ordinance, the Rent Controller Sibi on 31-1-1975 ordered ejectment of the tenants. The District Court in the first appeal upheld the ejectment order. However, High Court of Balochistan in FA.O. Nos.29, 30 and 31 of 1979 decided as under:-

"Keeping in view the disputed question of title the appellant at this stage seems not to be entitled for causing ejectment of the tenants from the property under dispute. In such case the ejectment order passed by the learned Rent Controller Quetta requires to be interfered with. The ejectment orders therefore are set aside. However, after the decision of the Civil Court regarding the title of the property the respondent if succeeds, may move for ejectment of his tenants. In this context the case reported in 1983 SCMR 1064 may be referred".

It is worth to mention that during this period the tenants had filed a civil suit in the Court of District Judge, Quetta on 12th of December, 1973. The same was referred to the Senior Civil Judge, Quetta who vide judgment and decree dated 6-11-1978 declared the property as State Escheat and decreed the suit as prayed for by the tenants. An appeal was preferred in the Court of District Judge, Quetta but the same was returned for presentation in the competent appellate Court i.e. District Judge, Sibi. It was presented and registered as Civil Appeal No.1 of 1980 and decided on 29-10-1981 whereby the appeal was dismissed. A revision petition was filed as Civil Revision No.55 of 1981 which was decided on 17-12-1985 and with consent of the counsel for the parties the same was accepted and the judgment and decree passed by Senior Civil Judge as well as appellate judgment by District Judge Sibi were set aside. It is worthwhile to mention here that during this period, the Government of Balochistan had also filed a suit which was pending in respect of the same property. Therefore the High Court ordered that all the suits be consolidated and disposed of accordingly.

4. Yet another important aspect of the matter is that Smt. Mai Bhoji left for India where she died, therefore, a Miscellaneous application was moved before Member, Board of Revenue Balochistan on the ground that the property in dispute be resumed as Escheat to the State. Learned Member, Board of Revenue by his order dated 25th of November, 1975 declared that since Mst. Bhoji died heirless in India, therefore, property in dispute automatically escheated to the State.

5. Phelaj Rai, however, challenged this order in a Constitutional Petition No.85 of 1976 which was decided on 23rd of May, 1978 by this Court. The said Constitutional Petition was accepted and the order of learned Member, Board of Revenue was set aside with observations as under:--

"In result, we allow the petition with costs to be borne by the respondents. However, we leave it to the respondents to take any legal action in light of our observations in the matter if they choose so. The decision of this petition would not operate as a bar against the subsequent proceedings in the matter. We have only declared that the order 23rd November, 1975 of the Member, Board of Revenue, Balochistan was passed without lawful authority nothing beyond that".

6. The District Judge Sibi before whom the suits were pending decided the same vide judgment dated 14-9-1989 and dismissed both the suits with costs. Hence the present appeals before this Court.

7. The facts in R.F.A. No.46 of 1989 are identical except the change of parties. However, R.F.A. No.49 of 1989 has been filed by Province of Balochistan through Secretary of Revenue.

7-A. Before proceeding further I would like to reproduce the issues framed in the two suits firstly filed by the tenants and secondly by the Province of Balochistan. These are as under:--

"(1) Whether the plaintiffs have no locus standi to file the suit?

(2) Whether the suit is maintainable in view of objection 'D' of written statement?

(3) Whether the suit is properly valued for the purpose of court-fee?

(4) Whether the suit is bad for misjoinder of the plaintiffs?

(5) Whether the plaintiffs are estopped from challenging the title of the defendant No 4?

(6) Whether the suit is within time?

(7) Whether the mortgage deed is fictitious fabricated document?

(8) Whether the plaintiffs and their ancestors have been in occupation of the premises in dispute?

(9) Whether Mst. Bhoji acquired the property as limited life interest?

(10) Whether the property in dispute has become estate Escheat"?

(11) Whether the plaintiffs are entitled to the declaration and injunction?

(12) What should the decree be?

ISSUES.

(1) Whether the suit is not maintainable in law?

(2) Whether the suit is not in proper form?

(3) Whether the suit is bad for misjoinder of the parties, if so, what is the effect?

(4) Whether the suit is bad for misjoinder of causes of action?

(5) Whether the suit is time barred? .

(6) Whether Mst. Bhoji had acquired full ownership and interest in the suit property and was competent to mortgage the same in favour of defendant No.1?

(7) Whether the mortgage deed executed by Mst. Bhoji in favour of defendant No.1 was properly registered or had been procured by fraud and misrepresentation?

(8) Whether Mst. Bhoji migrated to Bharat permanently in the year 1969 where she died?

(9) Whether Mst. Bhoji died issueless and the suit property reverted to the plaintiff as State Escheat?

(10) Whether the plaintiff is entitled to the relief sought?

(11) What should the decree be?

8. Heard the counsel for the parties.

9. Mr. Basharatullah counsel for Phelaj Rai strongly challenged the locus standi of appellants in R.FA. No.45 of 1989 and R.FA. No.46 of 1989. According to the learned counsel the appeal has been filed by Ram Chand on behalf of nine appellants without any authority. Learned counsel referred to PLD 1958 Dacca 535 and PLD 1969 Karachi 123. It is now settled that if a principal confers his authority on a person as his agent, the agent can act only within the compass of the authority so conferred on him under the power of attorney. However, if such power is challenged it will be the function of the Court to see on a fair construction of the whole instrument the authority in question either in express words or by necessary implication. In the instant cases the appellants have given the power to Ram Chand in clear words to contest on their behalf in the High Court. Therefore the argument so advanced is devoid of any force.

10. The next limb of the argument was that the private appellants, not being revisioners, have no right or locus-standi to file an appeal because under Hindu Law they are not entitled to retain any right of Sint. Mai Bhpji. It is an admitted position that the appellants are in possession of the property in dispute as tenants of Sint. Mai Bhoji and in order to sustain and continue possession they have challenged in the suit the mortgage deed by dint of which Phelaj Rai became the owner. They have never claimed any right of ownership in the suit. However, they want to establish their legal character as occupant tenants. This question was considered and also decided on 31-7-1975 by the then District Judge in the following terms:-

"The defendant No.4 has denied the right of the plaintiffs to occupy the premises as tenants. 1, therefore, hold that the plaintiffs have the locus-standi to file the suit as their legal character has been challenged by the defendant No.4. The issue is decided in favour of the plaintiffs and against the defendant No.4".

In view of the aforesaid reasons I see no force, in the argument of the counsel for Phelaj Rai. Moreover Mr.Kohli further contended that even a stranger can file an appeal if he is adversely affected. He relied on the case of H.M. Saya and Company Karachi v. Wazir Ali Industries PLD 1969 SC 65 and 1983 SCMR 453. The preliminary Objection, therefore, is disposed of accordingly.

11. Mr. Basharatullah then attacked the maintainability of the appeals on the ground that a composite appeal against two judgments has been filed. He feebly atrgued that in fact it was a thoughtful manoeuvre. I hardly find any substance in the said argument because two separate appeals have been riled by the private appellants in respect of a consolidated judgment and decree. Therefore, the objection is overruled.

12. Last but not the least preliminary objection raised was that proper court-fee has not been paid on either of the two appeals. It may be pointed out that -the learned counsel failed to highlight the deficiency in this regard.

13. He then assailed the maintainability of appeal on the ground that tenants are estopped to challenge the title of their landlord. The contention so raised is equally untenable because the tenants have categorically contended throughout that Phelaj Rai is not the real owner of the property which be escheated to the State as the landlady Sint. Mai Bhoji migrated to India and died therL Question of estopple, therefore, does not arise.

14. Regarding Appeal No.49 of 1989 filed by Government of Balochistan learned counsel urged that since the Member, Board of Revenue has not signed the memo of appeal, therefore, the said appeal is not maintainable. In support of his aforesaid contention it was further argued that Secretary, Board of Revenue has signed the appeal but he is not the Government. Learned counsel referred to his application dated 16-11-1990 contending that Law Department has taken a decision vide letter No.SOL: 3-4-Law/89, dated 26-3 1990 communicating to the Member, Board of Revenue that appeal be not filed. It may be pointed out that under Rules of Business opinion of the Law Department was not binding if at all there was any in this respect. Learned Assistant Advocate Ceneral Balochistan has filed this appeal and the Member II, Board of Revenue has signed the Vakalatnama. Furthermore, Mr. Iftikhar Muhammad Chaudhary, Advocate (as he then was) was authorised to costest on behalf of Revenue Department and after his elevation Mr. SA.M. Quadri, the Advocate has been authorised to contest the appeal and his Vakalatnama has been signed by Member-11, Board of Revenue. In reply to the application ii is clearly stated that Member, Board of Revenue is the authority through which escheat property vests in the Government. Therefore, I hold that appeal by the Government of Balochistan is properly filed.

15. Adverting to the merits of the case at the cost of repetition of facts it may be stated that Sint. Mai Bhoji was the only legal heir of Teju Mal and she proceeded to India on 7-8-1969. Pehlaj Rai claims that before leaving, she mortgaged the property in dispute to him for a consideration of Rs.15000 on 4th of August, 1969 through a written mortgage deed with further condition that if mortgage was not redeemed within one year the mortgage shall be considered as a sale to Pehlaj Rai. It is the case of the appellants that Smt.Mai Bhoji left for India on 17-8-1969 through Gandapur border and she died issueless later in India. Death certificate issued by Registrar (Births and Deaths) Civil Line Zone Municipal Corporation, Delhi was also produced. Since Sint. Bhoji left Pakistan for India on 7-8-1969 therefore it is to be seen whether mortgage deed dated 21-11-1969 alleged to have been executed by Smt. Mai Bhoji is based on fraud. Furthermore, if at all any such mortgage deed exists, the same confers any right on Pehlaj Rai for the reason that Sint. Mai Bhoji could not mortgage a widow's estate except with legal necessity.

16. 1 would proceed first to determine whether the mortgage deed was properly executed and legally registered before determining the legal effect of such mortgage deed under Hindu Law.

17. On 25-10-1969 an application was moved by Phelaj Rai to Sub Registrar-cum-Tehsildar Sibi for registration of the mortgage deed. Tehsildar on 31-10-1969 solicited instructions from the Registrar-cum-Deputy Commissioner for registration of the said document to which the Registrar did not allow registration till such time as the Assistant Commissioner, Sibi submitted his report. But the Tehsildar registered the mortgage deed on 28-11 1969. It is not known whether any report was at all submitted by Assistant Commissioner in this regard or not. Thus the Sub-Registrar got the mortgage deed registered despite instructions of Registrar not to register it tin the inquiry is complete.

18. Yet another fact which is very pertinent is that from perusal of the original file it appears that following two orders were passed by the Sub Registrar on the same date i.e. 4-8-1969:-

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It is indeed astonishing as to why order of same nature, on the same document by the same officer was passed on 2 separate places. The subsequent order is identical witlithe first one except that one Magsi Khan is mentioned to have identified Sint. Mai Bhoji. Said Magsi Khan, however, was not produced as witness before the trial Judge. Then an application was moved by Phelaj Rai on 25-10-1969 for registration of the document. It has already come on record that Sint. Mai Bhoji left for India on 7-8-1969. She aid not appear before Sub Registrar on the day of registration. Phelaj Rai also submitted application after more than two months for registration of the document. However, on 28-11-1969 the Sub-Registrar thought it appropriate to order for registration of the document. Said order reads as under:-

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14, A

It is nowhere mentioned in the said order that either Phelaj Rai or Smt. b Bhoji were present on 28-11-1969. Another important feature in this regard is that in his cross-examination Phelaj Rai stated that he was present on 4-8-1969 before Sub-Registrar Sibi. But it is not corroborated from the order dated 4-8-1969. Furthermore, he denies that the mortgage deed was not registered or 4-8-1969. But it is obvious from order dated 28-11-1969 that deed was not registered on 4-8-1969, rather it was registered on 28-11-1969. Furthermore Tehsildar was not examined by Phelaj Rai to support that he was present as well as Smt. Mai Bhoji was present on the day of registration. In his own application mentioned hereinabove dated 25-10-1969 he stated that the deed was presented for registration on 4-8-1969 but the same was not registered and Tehsildar observed that Mohasib was on leave and as soon as he returned the deed be presented for registration. This clearly indicates that the deed was not registered but returned to Phelaj Rai with the direction to present it only when Mohasib attended his office after availing the leave.

19. We now attend to the relevant provisions of law regarding registraration. Section 32 of the Registration Act is pertinent in this regard which is reproduced as under:-

"32. Except in the cases mentioned in section 89, every document to be registered under this Act, whether such registration be compulsory optional, shall be presented:-

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such person, or

(c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned."

Since the mortgage deed was not registered on 4-8-1969 and Smt. Mai Bhoji did not authorise any one else to be present on the day of registration, therefore, the only question for determination would be whether the deed properly presented within the meaning of section 32 of the Registration Act or not? In the ordinary course of events, the provisions of section 32 of Registration Act ex-facie were complied with when the document was produced on 4-8-1969 for registration but in the circumstances of the pr case when Smt.Mai Bhoji left for India on 7-8-1969 the question of presentation becomes doubtful. The first doubt is created from plain reading of mortgage deed itself in which Smt. Mai Bhoji allegedly agreed that if she did not make the payment within one year, the mortgage deed would be treated as a sale. But she left for good after three days of the execution of said mortgage deed. Secondly from contents of application moved by Phelaj Rai dated 25-10-1969 it appears that mortgage deed was returned back by Tehsildar with -instructions that same be presented when his Mohasib returns from leave. Thus it was presented at a time when Sint. Mai Bhoji was in India. Furthermore, the Registrar while registering the document on 28-11-1969 did not mention that neither Sint. Mai Bhoji nor Phelaj Rai were present at the time of registration. However, a reference is made that said document was presented on 4-8-1969 and one Magsi Khan identified Sint. Mai Bhoji. Said Magsi Khan was never produced as a witness before the trial Court. Admittedly neither any attorney nor representative or assignee of Sint. Mai Bhoji was present on the day of registration. There is also no mention in the order that Phelaj Rai was present on 28-11-1969.

20. In order to cover thislegal flaw, Phelaj Rai attempted to state in his statement before the trial judge that Sint. Mai Bhoji left for India after three months from the, date of registration of the document. This statement is prima facie a false statement because he himself admitted in cross-examination in rent proceedings that Sint. Mai Bhoji left for India on 7-8-1969. This belies his plea taken by him before the trial Judge. On the contrary this fact corroborates the contention of Government.of Balochistan and other appellants that no one was present on the day of registration and that the deed was not validly registered. Although a specific challenge was made by the appellants in this regard but no credible evidence was produced in rebuttal. However, on page 845 of the paper book, statement of Tehsildar-cum-Sub-Registrar recorded by Civil Judge, Sibi in rent proceedings which was also produced before the trial Court indicates that on 28-11-1%9 Sint. Mai Bhoji was not present before him. Her R.T.I. was not obtained by him and according to Tehsildar same has been affixed subsequently.

21. It is evident from the statement of Tehsildar recorded in rent proceedings and produced before the trial Judge that on the day of registration of deed Sint. Mai Bhoji was not present nor did she appoint any attorney or assignee to be present before the Registration Officer, before leaving for India.

22. All these facts coupled with the circumstance that Registrar forbade Sub-Registrar from registering the mortgage deed unless after inquiry in this regard is completed and the fact that Sub-registrar did not care for such instructions would go to show that there was some manipulation in this regard.

23. Learned counsel for the respondent Phelaj Rai Mr. Basharatullah Advocate in order to meet the said legal infirmity attempted to argue that Deputy Commissioner-cum-Registrar although issued such instructions previously but subsequently vide order No.225 dated 16th of January, 1970 allowed the registration of said mortgage deed. Said order appears at page 197 of the paper book. But from perusal of the said order the case of the appellants is further substantiated and the plea of the respondent is controverted. The reason is that this order mentions properties which are not the subject-matter of the mortgage deed. Secondly prima-facie there are some manipulations, cuttings etc. in the numbers mentioned in the order and lastly that"prior to the issuance of the same deed was already registered. All these facts if taken together clearly indicate that respondent Phelaj Rai manipulated the registration of the mortgage deed after Sint. Mai Bhoji had left the country for India for good.

24. Another limb of the argument in this regard advanced by learned counsel for respondent was that in any case Sub-Registrar was not obliged to have sought instructions from the Registrar regarding registration of the deed. He further submitted that Registrar had no authority to have forbidden the Sub-Registrar from registering the deed. I find no force in the said contention because bare perusal of section 68 of the Registration Act, bestows upon the Registrar the power of superintendence and control over the Sub-Registrar. Thus the aforesaid argument is also devoid of any force in the ight of the powers conferred on Registrar under section 68 of the Registration.

From the aforesaid circumstances and facts as well as the legal provisions I am inclined to hold that the mortgage deed was not properly and validly registered.

25. - Furthermore, since Tehsildar could not be produced as a witness, therefore, his previous statement recorded during rent proceedings (appearing at page 845 of the paper book) becomes admissible and which indicates that on 28-11-1969 Sint. Mai Bhoji was not present before him. He clearly -stated that her thumb-impression has been manipulated subsequently. Thus there is sufficient material on record that frand was committed and thumb-impression of the Sint Bhoji was manipulated subsequently. Furthermore, Mst. Mai Bhoji was in India on 28-11-1969 and her thumb-impression could not be affixed at Sibi on the said date when she was absent from the country which clearly indicates that fraud was committed.

26. 1 now proceed to attend to the second main argument whether Sint. Mai Bhoji could at all mortgage the property or sell the same under Hindu law without any legal necessity? In order to resolve the aforesaid question sections 176 and 178 of the Principles of Hindu Law by Sir Dinshah Fardunji Mulla, KT. would be relevant and are hereby reproduced:-

"176. Widowestate:-A widow or other limited heir is not a tenant-for life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. As stated in a Privy Council case, her right is of the nature of a right of property: her position is that of owner; her powers in that character are, however, limited; but .... so long as she is alive no one has any vested interest in the succession".

A widow under the Hindu Law takes a special and qualified estate, and she has a limited power of disposition of her husband's property.

The restrictions on her power of alienation are inseparable from her estate, and their existence does not depend on that of heirs capable of taking on her death. ' If for want of heirs, the right to the property passes to the Crown, the Crown has the same power that an heir would have of protecting its interests by impeaching any unauthorised alienation by the widow.

The estate taken by a Hindu widow in property inherited by her from her husband is called "Widow's estate", or Women's Estates." The estate taken by every other limited heir is similar in its incidents to a widow's estate. The incidents of a widow s estate are set forth in sections 177 to 201".

"178. Limited Rower of disposal of immovable property:- To uphold an alienation, by a widow or other limited heir, to the corpus of immovable property inherited by her, it should be shown-

(1) that there was legal necessity; or

(2) that the alienee, after reasonable inquiry as to the necessity acted honestly in the belief that the necessity existed; or (3) that there was such consent of the ne3d reversioners to the alienation as would raise a presumption that the transaction was a proper one; or

(4) that it was a surrender by her of her whole interest in the whole estate -in favour of the nearest reversioner or reversioners at the time of alienation;

Where any one of the first three positions is established, the alienation may be of the whole or any part of the estate; but where the fourth alone is proved then the alienation must be of the whole estate;

A widow or other limited heir has no power to dispose of the corpus of immovable property inherited by her except in the four cases mentioned above."

From bare perusal of aforesaid sections it becomes evident that a widow has a limited power of alienation. A widows estate can be alienated only on the grounds mentioned in section 178: Before determination of this question it may be worth to point out that admittedly there was no revisioner of the property in question. Mst. Mai Bhoji was widow of Teju Mal. They were issueless. Vehramal had already migrated to India and his property was declared as evacuee property. Thus the question is whether in such circumstances Sint. Mai Bhoji could alienate the property by way of mortgage or sale. Here again section 181-B of Hindu Law would be relevant where legal necessity is defined in the following terms:

"181-B. Alienation by -widow for legal necessity: - (1) Extent of power of alienation:-Having dealt with the power of a widow to alienate the estate for religious or charitable purposes, we propose to consider the nature and extent of her power of disposition for other purposes. The power of a widow or other limited heir to alienate the estate inherited by her for purposes other than religious or charitable is analogous to that of a manager of an infant's estate as defined by the Judicial Committee in Hunooman Persaud v. Mussamat Babooee Sec. 242, note (1). That power is a limited and qualified one; it can only be exercised rightly in a case of need or for the benefit of the estate". But where the alienation is one that a prudent owner would make in order to benefit the estate a bona ride alienee is not affected by the previous mismanagement of the estate. "The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded". If the alienation is for purposes of legal necessity or for the benefit of the estate, it binds not only her interest in the estate, but the whole body of reversioners.

The touchstone of the authority is necessity. The word 'necessity' when used in this connection has a somewhat special, almost technical, meaning. It does not mean actual compulsion, but the kind of pressure which the law recognizes as serious and sufficient. The receipt even of full value for property sold by her where there is no pressure on the estate, will not justify the sale; otherwise every transaction with a limited heir for full value would be valid.

Purposes of legal necessity:--The following purposes have been held to amount to legal necessity for which an alienation may be made:-

(i) Costs of taking out probate, or letters of administration, or a succession certificate in respect of the estate of the deceased owner.

(ii) Payment of arrears of Government revenue and of decrees for rent accrued due after the death of the deceased owner provided she had no funds when she mortgaged or sold the property to pay the revenue or the decrees and the mortgage or sale was absolutely necessary in order to discharge the debt, which if not discharged would have resulted in a forcible sale of the property. If there is an actual existing necessity, the circumstance. that the necessity was brought about by the mismanagement of the widow does not vitiate the mortgage or sale, unless it has contributed to the mismanagement.

(iii) Maintenance of herself (s), and of person whom the deceased owner