NAWAB KHAN Versus WARIS IQBAL

1. MUHAMMAD AFZAL CHEEMA, J. ‑Before the establishment of Pakistan, three members of a joint Hindu family, namely, Om Parkash, Ralla Ram and Bodh Raj sons of Duni Chand owned considerable movable and immovable properties in Lahore. Om Parkash died and was survived by his widow Shanti Devi and daughter Sudesh Kumari.

2. On 24‑4‑1947, Ralla Ram and Bodh Raj and the legal heirs of the third brother Om Parkash divided their properties into three equal shares by means of a registered Partition Deed. According to this arrangement, House No. 3, Abkari Road, Lahore, consisting of shops and godowns on the ground‑floor and a residential portion above them, which is the subject‑matter of the present litigation, fell to the share of Shanti Devi and Sudesh Kumari respect ively the widow and daughter of Om Parkash. On the creation of Pakistan, all of them migrated to India. However, Ralla Ram returned to Lahore in December 1947, embraced Islam and permanently settled taking the Muslim name of Sheikh Muhammad Iqbal. He married a Muslim lady Mst. Mahmuda Begum and in the wedlock a son Waras lqbal and a daughter Zahida Iqbal respondents 1 and 2 herein were born. Ralla Ram alias Sheikh Muhammad Iqbal applied to the Custodian for restoration of the joint Hindu family ;property under section 15 of the West Punjab Protection of Evacuee Property Ordinance, 1947 including the disputed House No. 3, Abkari Road, Lahore, ,which in the meantime had been allotted to Nawab Khan and Mukhtar Khan appellants herein. The application moved by Sheikh Muhammad Iqbal was. allowed by the Additional Custodian vide order, dated 12‑12‑1948 restoring. the properties to him and the allottees of House No. 3 were directed to vacate the premises within one month. It appears that the appellants neither vacated the premises nor paid any rent to Sheikh Muhammad Iqbal who died sometime in 1951 and was survived by his Muslim Law heirs, namely, Mst. Mahmuda Begum widow, Waras Iqbal son and Zahida Iqbal daughter. It was not till 12‑8‑1955 that Nawab Khan appellant moved a revision petition challenging the order of the Additional Custodian dated 12‑12‑1948 which was dismissed by the Custodian, vide order dated 23‑12‑1955 both as hope lessly time‑barred and also being devoid of merits. This concluded the first; round of litigation.

3. On 7‑4‑1956, Mst. Mahmuda Begum widow of Sheikh Muhammad Iqbal alongwith her son and daughter respondents 1 and 2, respectively brought a civil suit for the ejectment of Nawab Khan appellant. In. order to determine the question of the jurisdiction of the civil Court which in turn depended on the non‑evacuee nature of the premises,, a reference was made to the Additional Custodian who vide his. order dated 8‑3‑1960 held that the house was an evacuee property belonging to the joint Hindu family and as such the civil Court had nor jurisdiction in the matter. Mst. Mahmuda Begum and respondents 1 and 2 unsuccessfully challenged this order in revision before the Custodian, who vide his order dated 2‑7‑1960 confirmed the finding of the Additional Custodian regarding the evacuee nature of the premises and consequent bar of the civil Court's jurisdiction. It was, however, observed in this order that Mst. Mahmuda Begum and respondents 1 and 2 could at best seek partition of the house of which their entitlement was confined only to 1/3rd share.

4. Taking the cue from the above observation of the Custodian, Mst. Mahmudaa Begum and respondents 1 and 2 moved an application dated 12‑7‑1960 before the Custodian under section 13 of the Pakistan Administration of Evacuee Property Act, 1957 for possession by partition of 1/3rd share of Ralla Ram alias Sheikh Muhammad Iqbal in the joint Hindu family property. In the mean time, however, Settlement operations started and the appellants submitted C. H. Form for the transfer of the house which remained undisposed of presumably owing to the pendency of the partition application moved by Mst. Mahmuda Begum and respondents 1 and 2. Mst. Mahmuda Begum mother of respondents 1 and 2 died on 26‑2‑1962. On 25‑7‑1962, the appel lants submitted a complaint to the Chief Settlement Commissioner for the non‑disposal of their C. H. Form which was sent to the Additional Settle ment Commissioner who in turn passed it on to Mr. Ishfaq Ali, the Deputy Settlement Commissioner concerned before whom both the parties appeared on 22‑10‑1962 in response to notices and their statements were recorded. A couple of days later, the respondents moved two applications dated 26‑10‑1962 and 29‑10‑1962 before the Additional Settlement Commissioner seeking stay of transfer proceedings till the disposal of their partition applica tion dated 12‑7‑1960. The application was forwarded to the Deputy Settlement Commissioner for submission of a report after examination of the case as a whole. It appears that at this stage, the Chief Settlement Com missioner vide his order dated 18‑6‑1963, transferred all pending cases of Lahore to Mr. Wali Muhammad Nagar, Additional Custodian, who was also functioning as Deputy Settlement Commissioner. This Officer, vide his order dated 23‑11‑1963, after considering the Partition Deed, dated 24‑4‑1947, executed by the members of the joint Hindu family separated the share of Ralla Ram alias Sheikh Muhammad Iqbal excluding from it the disputed House No. 3, Abkari Road, Lahore. He further observed that there was no other feasible mode of partitioning of the joint Hindu family property. By the same order, he also transferred the entire upper storey of the premises comprising the residential portion to the appellants and ordered the disposal of the ground‑floor by auction. The respondents did not challenge this order of Mr. Wali Muhammad Nagar but the appellants feeling aggrieved for having been denied the ground‑floor preferred an appeal before the Additional Settlement Commissioner, which was dismissed by his order dated 16‑6‑1966. This order was challenged by both the parties in two revisions before the Settlement Commissioner which were heard and disposed of together vide order dated 31‑7‑1968. The revision petition filed by the appellants was allowed, the property was held to be indivisible and was transferred to them in its entirety, while the revision petition filed by respondents 1 and 2 was dismissed.

5. Feeling aggrieved, the respondents invoked the Constitutional jurisdiction of the High Court through Writ Petition No. 892‑R of 1968 challenging the order of Mr. Wali Muhammad Nagar, Deputy Settlement Commissioner/ Additional Custodian, dated 23‑11‑1963, of the Additional Settlement Com missioner dated 16‑6‑1966 and of the Settlement Commissioner, dated 31‑7‑1968. It was alleged that House No. 3, Abkari Road was a part of the joint Hindu family property and their application under section 13 of the Pakistan Administration of Evacuee Property Act for its partition and separation of their 1/3rd share still remained undisposed of. The position taken up by the appellants in their written statements was that the application of the respondents, dated 12‑7‑1960 under section 13 of the Pakistan Ad ministration of Evacuee Property Act, 1957 already stood disposed of by Mr. Wali Muhammad Nagar in his capacity as Additionai Custodian vide his order dated 23‑11‑1963 on the basis of the Partition Deed, dated 24‑4‑1947 and therefore, the writ petition was not maintainable.

6. According to the learned Judge in the High Court, the fate of the petition hinged on the determination of the question as to what was the effect of the restoration order, dated 12‑12‑1948 passed by the Additional Custodian in favour of Ralla Ram alias Sheikh Muhammad Iqbal. The view taken by the learned Judge was that the relevant provision of law applicable to the case was section 15 of the West Punjab Protection of Evacuee Property Ordinance, 1947 and on its proper construction an owner of evacuee property was entitled to its restoration if he returned to West Punjab to resume his residence or business, as was the position obtaining in the case before him. The con clusion reached, therefore, was that on its restoration on 12‑12‑1948, the property in dispute ceased to be an evacuee property and as such was not available for transfer to the appellants. Reliance was placed in this regard on this Court's judgment in P. G. Bhandari v. The Rehabilitation Authority, Lahore (PLD 1961 S C 89). The argument raised on behalf of the appellants on the basis of the Partition Deed dated 24‑4‑1947 was repelled by the learned Judge on the ground that since admittedly the confirmation by the Custodian under section 20 of Act XI1 of 1957 had not been obtained, the Partition Deed was legally non‑existent and as such the property continued to be the joint Hindu family property in which each member could claim his respective share in cluding the respondents, who were entitled to I/3rd thereof. Exception was. also taken to the mode of decision by Mr. Wali Muhammad Nagar who having functioned in a judicial capacity, as Additional Custodian in the matter of partition of property and as Deputy Settlement Commissioner as regards its transfer had not passed separate and independent orders in the ,.respective exercise of each capacity. While allowing the writ petition, vide ‑his order dated 12‑8‑1971, the learned Judge observed as follows :‑

7. "Since the Custodian authorities have not properly determined the shares, one‑third share of the petitioners in the joint Hindu family property, it will be open for the Custodian to ascertain the exact share of the present petitioners in accordance with law and to take back excess, if any, from them"

8. An L. P. A. filed by the appellants against this order of the learned Judge was dismissed in limine on 23‑9‑1971 on the ground inter alia that in his order dated 2‑7‑1960, the Custodian himself had held that the Deed of Partition remained unconfirmed and the entire property of the three brothers was still joint of which Sheikh Muhammad Iqbal was entitled to 1/3rd share. The .contention raised on behalf of the appellants that the order of Mr. Wali Muhammad Nagar dated 27‑11‑1963 made on the basis of the Partition Deed of 1947 may be deemed to have been passed by him in his capacity as Additional Custodian thus amounting to its implied confirmation as required under section 20 of Act XII of 1957 was repelled.

9. Feeling aggrieved, the appellants filed a petition for special leave to appeal in this Court and leave was granted vide order dated 14‑12‑1971 to consider the contentions : Firstly, that the order of the Custodian dated 2‑7‑1960 declaring the property as evacuee property was still in the field ; secondly, that the order of Mr Wali Muhammad Nagar, dated 23‑11‑1963 which had also the effect of disposing of the partition application of the respondents having remained unchallenged had attained finality ; and thirdly, that the Partition Deed, dated 24‑4‑1947 did not require confirmation under section 20 (1) of Act XII of 1957.

10. During the hearing of the appeal, the above‑mentioned contentions were reiterated and elaborated before us and I will presently deal with them.

11. On the other hand, it was contended by the learned counsel for the respondents : Firstly, that the property having been once restored to Ralla Ram alias Sheikh Muhammad Iqbal by the Additional Custodian, vide his order dated 12‑12‑1948, it became non‑evacuee ; secondly, that it still re mained undivided as the application for its partition moved by the respondents alongwith their mother Mst. Mahmuda Begum remained un disposed of ; thirdly, that Mr. Nagar was only seized of the limited question of the disposal of the appellants' C. H. Form and their application for transfer of the premises and his order dated 23‑11‑1963 did not amount to Partition of the joint Hindu family property. Lastly, it was submitted that the Partition Deed, dated 24‑4-1947 amounting to inter se transfer of the rights between the members of the joint Hindu family needed confirmation under section 20 of Act XII of 1957 and remained ineffectual for want of con firmation and accordingly no fault could be found with the restoration of the .entire joint Hindu family property, vide Additional Custodian's order, dated 12‑12‑1948. Learned counsel could not cite any authority in support of this proposition though undertook to do so subsequently but never sent any.

12. The uncontroverted tactual position is that the joint Hindu family property stood partitioned amongst its members several months before their migration to India and they had been in actual possession of their respective portions at the time of establishment of Pakistan. In all fairness, therefore, Ralla Ram alias Sheikh Muhammad lqbal on his return to Pakistan could have sought the restoration of only the portion which tell to his share excluding the house in dispute. But suppressing the factum of partition, he obtained instead an order of restoration of the entire joint Hindu family property. There is nothing to indicate on the record that the order dated 12‑12‑1948 was made by the Additional Custodian in awareness of the earlier partition of the joint Hindu family property on the basis of a Registered Deed which had been fully acted upon. From this one cannot avoid an impression that Ralla Ram had not approached the Custodian authorities with clean hands and bad tried to grab the entire property by deliberate suppression of the real facts No sanctity would thus attach to the manipulated order of the Additional Custodian, dated 12‑12‑1948 in so far as it declared the entire joint Hindu family property as non‑evacuee. Thus in the ultimate analysis, the fate of the case would hinge on the determination of the two legal questions : (1) whether the Registered Partition Deed, dated 24‑4‑1947 did or did not require confirmation under section 20 of Act XII of 1957; and (2) whether the order of Mr. Nagar redividing the property on the basis of the Partition Deed was with or without jurisdiction.

13. In support of the contention that the Partition Deed, dated 24‑4‑1947, did not require confirmation under section 20 of Act X11 of 1.957, it was sub mitted that the Partition Deed was registered on 14‑11‑1947, as required under section 17 (1) (6t of the Registration Act and was therefore, a legal instrument of unquestioned validity having been acted upon in toto, in con sequence whereof the former coparceners had taken possession of their respective shares excluding the disputed House No. 3, Abkari Road, Lahore, which went to Sudesh Kumari and Shand Devi respectively, widow and daughter of Om Parkash, and including House No. 32 which fell to the lot of the respondents' predecessor‑in‑interest. It was further submitted that since no transfer was involved in the partition, the Rehabilitation Laws did riot apply or otherwise affect the validity of the Partition Deed. Reliance was pleaded in this regard on Mt. Hiran Bibi and others v. Mi. Sohan Bibi (AIR 1914 PC44), Mt. Girja Bai v. Sadashiv Dhundiraj and others (A I R 1916 P C 104) and Lala Khunni Lal and' others v. Kunwar Gobind Krishna Narain and another (38 I A 87). For the contrary view, learned counsel for the respondents relied only on the definition of property as contained in section 5 of the Transfer of Property Act but could ,cite no authorities in support thereof.

14. Before proceeding to consider these contentions it appears necessary to examine in the first instance the statutory provision contained in section 20 of Act XII of 1957 which reads as follows :

15. "20. Restriction on transfer by evacuees.‑(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March, 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be, effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian.

(2) An application for confirmation of such creation of a right or encum brance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party.

(3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and‑

(a) shall reject the application if the creation or transfer‑

(i) was or is prohibited under any law for the time being in force, or

(ii) was not or is not covered by a certificate from the prescribed income tax authority to the effect that no objection exists to such creation or transfer ;

(b) may reject the application if he is of opinion that the creation or transfer‑

(i) was not or has not been entered into in good faith or for adequate consideration, or

(ii) ought for any other reason not to be confirmed.

(4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose."

16. While tracing the legislative history of this provision, I find that it was ;incorporated for the first time in section 7 of Ordinance VII of 1947 which . came into force with effect from 1‑12‑1947. It was made incumbent that all transfers of evacuee property which had taken place on or after the 15th August, 1947, had to be registered by the Custodian and could not take effect without such registration. This provision was repeated in section 9 of Act VII of 1949, which replaced the earlier Ordinance and was in turn followed by Central Ordinance XVIII of 1948 of which section 12 changed the terminal date from 15‑8‑1947 to 1‑8‑1947. Yet another change brought about was that the word "registration" used in Ordinance VII of 1948 and Act VII of 1949 was replaced by "confirmation". Then came Ordinance XV of 1949 which further changed the crucial date from I‑8‑1947 to 1‑3‑1947. The next statute in the series was Ordinance XX of 1956 which made no material alteration in the relevant provision and after a short span was replaced by Act XII of 1957, which was made operative with effect from 1‑3‑1947. The provision contained in section 20 ibid was identical in terms with the corresponding provisions in the earlier statute regarding compulsory confirmation by the Custodian of all transfers of evacuee property transferred on or after 1‑3‑1947 in order to authenticate their genuineness and confer vali dity on them. It was for the first time that under section 13 (3) of this Act, a provision was also incorporated for the separation of evacuee share from non‑evacuee share of joint properties. The principal object underlying the provisions contained in section 20 obviously was to preserve intact all evacuee properties including evacuee interest in joint properties and protect them against encroachment usurpation and illegal seizure by unscrupulous persons on the basis of fictitious and unconscionable transactions so that these could be used for the rehabilitation of refugees and other suitable purposes. On a reasonable interpretation of section 20 of Act XII of 1957, therefore, keeping in view the underlying object, it is abundantly clear that its invocation in respect of a partition deed entered into and acted upon by members of a joint Hindu family in April. 1947, would be wholly irrelevant and beyond its scope inasmuch as it involved no element of evacuee interest whatever. In fact before the establishment of Pakistan, the joint Hindu family property bad completely lost its joint character and identity (having been divided into three independent portions in possession of their ;respective owners. This position continued till the return of Ralla Ram alias Sheikh Muhammad Iqbal to Pakistan. The resurrection of property share by operation of law under section 15 of West Punjab Protection of Evacuee Property Ordinance VII of 1947 was, therefore, confined only to his separated share of the once joint property in whatever shape or form it remained avail. able and by no stretch of imagination could it extend beyond it. I am, therefore, in no manner of doubt that no confirmation by the Custodian was required in respect of the Partition Deed, dated 24‑4‑1947. Even otherwise, it appears that a partition of‑ joint property amongst its shareholders does not amount to transfer as such in its accepted legal concept inasmuch as it does not have the effect of the creation or transfer of rights. The proposition is not devoid of authority. In Rani Mewa Kuwar v. Rana Hulas Kuwar (1 I A 157), the parties who were heirs of a common ancestor owning properties in Rohilcund and Oudh agreed to divide the properties inherited by them in ,certain proportions by a deed of compromise. The agreement was carried .out in Rohilcund but not in Oudh, where the respondent continued to be in ,possession. The appellant sued for possession of her share of the property in Oudh. While determining the question of limitation, their Lordships of ‑the Privy Council took the view that the suit was not founded on contract nor ,was it for a breach of it but it was a suit for the recovery of immovable property. In Lala Khunni Lal and others v. Kunwar Gobind Krishna Narain ,and another, the relevant question as to whether the partition of joint Hindu family property based on a compromise amounted to an alienation was one of several points in issue before the Privy Council and their Lordships re affirmed the view earlier expressed in case of Rana Mewa Kuwar v. Rana ,Hulas Kuwar. It was held that the compromise between the parties did not amount to, acquisition of fresh rights but was based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledged and defined what that title was. This authority was ‑subsequently followed by the Privy Council in another case Mst. Hiran Bibi and others v. Sohan Bibi. Here the question for determination was as to whether a compromise by a limited owner of family property amounted to an :alienation. It was held in a very brief two‑pare. judgment that the com promise in question was in no sense of the word an alienation but a family settlement in which each party took a share of the family property by virtue of its independent title which was admitted by the other parties by way of compromise. Consistently with the foregoing authorities, same view was reaffirmed in Mst. Girja Bat v. Sadashiv Dhundiral and others. While referring to the division of joint Hindu family property on the basis of a Partition Deed, it was observed by Syed Amir Ali, J. "the right which each individual member had in the joint property did not spring from the deed or the agreement of the parties to which it gave expression; the agreement only recognized existing rights in each individual member which he was entitled to assert at any time be liked".

17. For the contrary view, learned counsel for the respondents pressed into service the definition of transfer of property as contained in section 5 of the '!Transfer of Property Act, 1882, which reads as follows :‑

18. (5). . . . . . transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons; and 'to transfer property' is to perform such act."

19. In Mulla's Transfer of Property Act, 1949 (3rd Edition), page 49, there is a reference to some conflict of views on the point. A partition has been said to be a surrender of a portion of a joint right in exchange for a similar' right of a co‑sharer as held in Atrabannessa Bibi v. Safatullah Mia ((1916) 43 Cal. 504=31 1 C 189). From, this analogy, it was inferred that a partition amounted to transfer of property as held in Rasa Gounden v. Arunachala Gounden ((1923) 44 Mad. L J 513=721 C 978=A I R 1923 Rang. 577); Waman Ram Krishna v. Ganpatt Mahadeo (1 L R 60 Bom. 34); Sadhu Ram v. Prithi Singh & Co. (A I R 1936 Lah. 220 ‑161 1 C 861). In some other cases, however, it was held that a partition was not an exchange and did not amount to transfer of property. Reference may be made in this regard to Gyannessa v. Mabarakannessa (1 L R 25 Cal. 210); Satya Kumar Banerjee v. Satya Aripalt Banerjee ((1909) 10 C L J 503); Indoil Athaji v. Kothapath Rama Charchi ((1911) 54 1 C 146=10 L W 498); Pukhar Singh v. Dulare Kunwar (1 L R 52 Bom. 716); Sohashini Poddar v. Sreenath Chakraverty ((1945) 49 C W N 769); Khirode, Sundari Dasya v. Chunilal Chaudhri ((1945) 49 C W N 779).

20. Subsequently in the context of section 53 of the Transfer of Property Act, which deals with the voidability of a transfer of immovable property made with intent to defeat or delay the creditors there is again a discussion at page 270. A partition was not considered to be actually a transfer of property' but analogous to an exchange. Mookerjee, J., in Atrabannessa BIN v. Safa tullah Mia held that partition signified "the surrender of a portion of a joint right in exchange for a similar right from the co‑sharer." Spencer, J., in Indoji fethaji v. Kathapalli observed that a partition "effects a change in the mode of enjoyment of property but is not an act of conveying property from one living person to another".

21. It appears that in most of these cases, partition was treated as a transfer vis‑a‑vis section 53 of the Transfer of Property Act and this could not be con sidered as a detached and objective view of the matter. It was observed in, Vinayak v. Moreshwar (A I R 1944 Nag. 44) a Full Bench authority that regardless of the fact whether a partition was or was not a transfer for the purposes of section 53 of Transfer of Property Act, the principle of the section would be invoked' being of wider application.

22. But even assuming as held in some authorities that technically speaking, partition of joint Hindu family property did amount to transfer or the creation of rights, it would be indeed a case of mutual transfer inter se by all i the members of the joint Hindu family as wholly distinguishable from the type of transfer or creation of rights envisaged by section 20 of Act XII of 1957. The conclusion, therefore, reached by me is that the Partition Deed in question did not require confirmation. The view taken by the Custodian in his order, dated 2‑7‑1960, the learned Single Judge in his order dated 12‑8‑1971, and the L. P. A. Bench in his judgment, dated 23‑9‑1971, cannot therefore, be upheld.. Their consistent finding on the point is accordingly reversed.

23. This brings me to the next contention regarding the validity of the order,, dated 23‑11‑1963 passed by Mr. Wali Muhammad Nagar, who functioned in the dual capacity of the Deputy Settlement Commissioner as well as the Additional Custodian. It may be recalled that the contention raised on behalf of the respondents was that this order of Mr. Nagar was without jurisdiction inasmuch as he was called upon only to dispose of the appellants' C. H. Form fn his capacity as Deputy Settlement and Rehabilitation Commissioner and that there was no application pending before him under section 13 (3) of Act XIl of 1957, for the separation of the evacuee and non‑evacuee portions of a joint Hindu family property which he went out of the way to partition. On the other hand, it was submitted on behalf of the appellants that Mr. Nagar functioned in a dual capacity of a Deputy Settlement Commissioner as also Additional Custodian, and that the respondents not only submitted to his unquestioned jurisdiction but also never challenged his order dated 23‑11‑1963 which had attained finality. It was not disputed that Mr. Nagar, Deputy Settlement Commissioner was also invested with the powers of Additional Custodian. Learned counsel also referred us to Notifications No. F. 1 (2)/62 SEII (Al and No. F. 1 (2)/62‑SEII (B), dated 28‑6‑1963, issued by the Government of Pakistan, Ministry of Industries, Natural Resources and Works (Rehabilitation and Works Division!, Rawalpindi, purporting to show that Mr. Nagar was invested with the dual powers of Deputy Settlement Commissioner as well as Additional Custodian.

24. A perusal of Mr. Nagar's order, dated 23‑11‑1963, shows that both the parties appeared before him, filed documents in support of their respective positions and were heard by him through their counsel. No objection appears to have been taken at any stage of the proceedings in which the respondents fully participated. Feeling dissatisfied with this order they could not be permitted to turn round and question his jurisdiction in view of this Court's dictum in Ch. Bashir Ahmad v. Rahimuddin and another (1970 S C M R 90). Even otherwise, a presumption of legality would attach to this order under section 114 (h) of the Evidence Act as observed by this Court in Majid Ali Naqvi v. Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner and another (1970 S C M R 375). But assuming that Mr. Nagar could not simultaneously function in a dual capacity making a single order in a jumbled exercise of his function as Deputy Settlement Commissioner as well as Additional Custodian as seems to be the view taken by the learned Single Judge in the High Court, this objection would completely lose its force in view of the finding given by me on the first point, namely that joint Hindu family property stood already partitioned and no confirmation of the Custodian was necessary. Mr. Nagar only redivided the joint Hindu family property on the basis of the same Partition Deed and it would be hardly of any consequence even if this order were not deemed to be in the field. However, no exception can otherwise be taken to its validity on the legal plane.

25. Before conclusion, I might also deal with the last point urged on behalf of the respondents. It was submitted that Shand Devi widow of Om Parkash died on 1947 before Ralla Ram embraced Islam in December, 1947 after his return to Pakistan. Since she was not entitled to any share in the joint Hindu family property, it was urged that the respondents as heirs of Ralla Ram would also be entitled to one‑half share of the property of their uncle Om Parkash. The contention is without force. In the first instance, it was admitted in paragraph 2 of the Writ Petition filed by the respondents that Shanti Devi widow and Sudesh Kumari daughter of Om Parkash had migrated to India at the time of Partition and there is also a finding to this effect by the Custodian. Again there is nothing on the record to show that Shanti Devi had in fact died and if so, at what point of time i.e. whether her death had occurred before or after Ralla Ram had embraced Islam. In the circumstances therefore, the respondents cannot lay claim to any share in the property abandoned by their uncle Om Parkash.

26. As a result of the foregoing discussion, I am convinced that the respondent cannot claim any legitimate title in the disputed House No. 3, Abkari Road. Lahore. Accordingly, I allow this appeal with no order as to costs.

27. MUHAMMAD YAQUB ALI, C. J.‑I agree.

28. SALAHUDDIN AHMED, J.‑I agree.

29. DOBAB PATEL, J. ‑I agree.

30. S. A. H. Appeal allowed.