Ghulam Mohd. vs Badshah Begum and Others

S. Murtaza Fazl Ali, C.J.—This appeal was heard in the first instance by a Bench consisting of Bhat and Anant Singh, JJ., but as a result of

difference of opinion between the two learned Judges, the appeal has been referred to me for hearing and disposal.

The appeal is directed against the order of the Custodian-General Evacuees' property dated 19-7-68 by which he had held that the properties

in dispute are not evacuee properties and had accordingly ordered their release. The facts giving rise to this appeal have been narrated with

sufficient precision and detail in the judgment of my learned brother Bhat, J., but I would give a brief resume of the relevant facts in order to

understand the scope and ambit of the appeal before me.

It appears that the original owner of the properties in question was one Raja Hussain Khan who died in 19-10, the only issue which he had, was

a daughter Pukhraj Begum who was married to Raja Hayat Mohd. Khan, but she also pre-deceased her father and thereafter Raja Hayat Mohd.

Khan continued to live with his father-in-law and look after his properties. Raja Hayat Mohd. Khan had two daughters: Sarwar Sultana and

Badshah Begum; Badshah Begum being the elder daughter was married to Col. Abdul Majid who lived in Jammu. The younger daughter namely

Sarwar Sultana was married to one Munsha Khan who was a resident of Kathar in the district of Mirpur (at present Pak occupied territory).

Hussain Khan had considerable properties in Jammu which according to the case of the respondents, was inherited by the two daughters of

Pukhraj Begum. In fact the case made out by respondent 1 was that Raja Hayat Mohd. Khan was a Khan Damad of Raja Hussian Khan and

therefore inherited all his properties. It was further alleged that in the year 1942, at the time of the marriage of the second daughter Sarwar Sultana

with Munsha Khan, Raja Hayat Mohd. Khan made a declaration before, a large number of persons that the two sisters had divided the properties

inherited by them in the following manner; that the property situate in Jammu was allotted to Badshah Begum respondent 1 and those situate in

Kathar and Bhimber were allotted to Sarwar Sultana. This partition was made because it suited the convenience of the parties inasmuch as both

Badshah Begum and her husband were residents of Jammu, while the husband of Sarwar Sultana, Major Munsha Khan, belonged to Kathar and

had Eroperties there. It was further sought to e proved by respondent 1 that at the time of marriage of Sarwar Sultana in 1942, it was also

declared that the two sisters had been put in possession of the properties allotted to them. In other words, the partition was acted upon ever since

1942. The Jammu properties having fallen exclusively to the share of Badshah Begum, the question of their being declared as evacuee properties

did not arise as after partition Sarwar Sultana ceased to have any interest in the properties. The learned Custodian-General accepted the case

made out by Badshah Begum and held that the properties were not evacuee properties. My learned brother Bhat, J., also, after going through the

material and the evidence on the record, agreed with this finding of fact arrived at by the Custodian-General. Anant Singh, J., however did not

enter into a discussion of the evidence led by the parties on the subject but thought that the sheet anchor of the case of Badshah Begum was an

affidavit alleged to have been sworn by Sarwar Sultana in Pakistan which was filed before the Custodian. The learned Judge held that this affidavit

was wholly inadmissible in evidence and therefore would be of no assistance in supporting the claim of Badshah Begum. The learned Judge further

held that in his opinion as Badshah Begum had not proved that she was exclusively entitled to the properties in Jammu and the share of Sarwar

Sultana who had gone to Pakistan should have been declared as evacuee property. In other words my learned brother Anant Singh. J., agreed

with the findings of the Custodian who had also held that the interest of Sarwar Sultana in the Jammu properties would have to be declared as

evacuee property.

Another point that was raised before the Division Bench was regarding the maintainability of the appeal at the instance of the appellant Ghulam

Mohd. The appellant was merely a tenant inducted by Col. Abdul Majid presumably on behalf of his wife in two shops owned by Badshah

Begum. Subsequently a suit for ejecting Ghulam Mohd. was filed by Col. Abdul Majid and in order to bring about pressure on Col. Abdul Majid,

the appellant informed the evacuee authorities that the properties claimed by Badshah Begum did not exclusively belong to her but were owned

partly by Sarwar Sultana who had migrated to Pakistan. It was on-the information of the appellant that a fresh inquiry was made in the matter

leading up to the decision of the Custodian that Sarwar Sultana had half interest in the Jammu properties and that of the Custodian General in

revision taking a contrary view.

One of the main points taken before the Division Bench was that since the appellant had no right, title or interest, he was not an aggrieved

person within the meaning of Section 30(1) of the Evacuees' Property Administration Act, 2006 and therefore an appeal at his instance could not

be entertained. Bhat, J., accepted this contention, but Anant Singh, J., overruled this plea. The main bone of contention between the two judges

appears to be the case of the respondent that the entire Jammu properties belong-to Badshah Begum and the admissibility of the affidavit filed by

the respondent. As regards the affidavit, it was admittedly not sworn in India, but was sworn before an Oath Commissioner in Pakistan, hence the

presumption of a Official Act under Evidence Act would not apply. No evidence was adduced before the Custodian to show that the affidavit was

sworn in presence of any of the witnesses produced before the Custodian or that Mst. Sarwar Sultana was identified by anybody before the Oath

Commissioner in Pakistan. Even the signature of Sarwar Sultana on the affidavit was not sought to be proved by the respondent. In these

circumstances therefore I am inclined to agree with by brother Anant Singh, J., that the affidavit was not at all admissible in evidence even if it could

be proved as an affidavit sworn in a foreign country. I, however, do not think it necessary to dilate on this question because on the other findings

arrived at by my learned brother Bhat, J., I think the appeal merits dismissal.

The respondents had produced over-whelming evidence to show that the property was partitioned by the two sisters as far back as 1942. In

this connection the respondent examined Col. Majid Khan, Major Inder Singh and Sat Dev. Major Inder Singh and Satdev appear to be

independent witnesses who were fully conversant with the affairs of the family of Col. Majid Khan and were present at the time of the marriage of

Sarwar Sultana in 1942 when the declaration about the said partition was made. The Custodian-General after considering the evidence on merits

accepted the same and my brother Bhat, J., after going through the evidence found no reason to disbelieve it. My brother Anant Singh, J., does not

appear to have considered the evidence at all, but rejected it outright, on the ground that no case of partition appears to have been made out by

the respondent. With very great respect to my learned brother, I am not able to agree with him on this question. After all the proceedings before

the Custodian were of a quasi-judicial nature and the rules of pleadings could not be enforced strictly. Furthermore in the reply given by Col.

Abdul Majid to the information given by the appellant it was clearly alleged that Sarwar Sultana and Badshah Begum had inherited the property

from their forefathers. Admittedly Raja Hussaiu Khan was the owner of the entire properties and on his death the properties would pass on to the

respondent 1 and her sister Sarwar Sultana in the absence of Pukhraj Begum who had predeceased her father. In these circumstances the case of

partition proved by. the respondent cannot be said to have been a belated one because it was open to the sisters to partition their property as they

liked if they had inherited the same from their forefathers. Furthermore the evidence of Col. Majid corroborated as it is by Major Indorsing!) and

Satdev clearly shows that it was not a case of a declaration of a gift by Raja Hayat Mohd. Khan of his properties but a declaration by him on

behalf of Sarwar Sultana and Badshah Begum regarding the mode in which the properties were divided or partitioned between them. The two

ladies, Badshah Begum and Sarwar Sultana, were respectable ladies and were not expected to come out of Purda on the occasion of the marriage

of Sarwar Sultana in order to make a declaration themselves. In these circumstances it was quite natural on their part to have appointed their father

who was the only senior member of the family and to authorize him to make a declaration regarding the mode of partition of the properties. Ail

these witnesses ' namely, Cot. Majid, Inder Singh and Satev have categorically stated in their evidence that ever since the declaration of partition

was made in 1942, two ladies mentioned above remained to possession and control of the properties assigned to them. It was argued that Raja

Hayat Mohd. Khan could not have derived any title over the properties because no custom was proved to show that as a. Khana Damad he could

have inherited the property of Hussain Khan. I would accept this position as correct, but that makes no difference because the properties were

divided not by Raja Mohd. Hayat Khan, but by the daughters themselves and Raja Mohd. Hayat Khan was merely asked to make a declaration it

the time of the marriage of Sarwar Sultana in 1942. Similarly a subsequent will aid to have been executed by Raja Mohd. Hayat Khan the original

of which was not produced, does not merit any consideration. For these reasons, therefore, if we exclude the affidavit from our consideration,

there is sufficient evidence to prove that Badshah Begum was the absolute owner of the properties in Jammu and Sarwar Sultana having no interest

in the properties at Jammu, and if she had gone to Pakistan, her interest could not be declared to be an evacuee property. I, therefore, agree with

the finding of my learned brother Bhat, J., upholding that of the Custodian General that the properties in question belonged exclusively to Badshah

Begum and could not be declared evacuee properties. On this point I express by respectful dissent from the view taken by Hemant Singh, J.

Secondly I also agree with my brother that, J., that the appeal is not maintainable (sic) the instance of the appellant. Section 30 (sic) of the Act

(Supra) provides as under:

Any person aggrieved by an order made u/s 8, Section 14, or Section 25 any prefer an appeal.

before an appeal can be presented by any person it must be shown that the said person is aggrieved by an order passed under the Sections

mentioned in Section 30. In the instant case the Custodian had declared part the property as evacuee property, but the custodian General has

declared the entire property to be not evacuee property. The person who would have been affected by the order of the Custodian General

therefore would be the Custodian Department and it as for it to file an appeal to this Court if he felt aggrieved by the order of the Custodian

General. u/s 10 of the Act the Custodian has been given wide powers of ministration and management of evacuee properties and if he felt that the

decision of the Custodian General was wrong it was his duty to have filed an appeal to this Court. Another person who would have been interpted

in the property would have been Sarwar Sultana because she was held to have no interest in the Jammu property by the Custodian General but as

she was in Pakistan, the appeal could not be filed by her. I do not see what locus standi the appellant could have to file the present appeal when his

right title or interest was not at all affected the order of the Custodian General. According to the evidence of Col. Majid the appellant had come to

Jammu as a labourer on after 1947 and was rehabilitated by (sic) Majid by being inducted into the two (sic). It is also admitted that the appellant

(sic) executed a Kirayanama in favour of Col. Majid acting on behalf of his wife. The apellant was a tenant of Col. Majid and he (sic) absolutely no

right to deny the title of landlord. The conduct of the appellant in informing the Evacuee Department was merely to overawe the respondent in

order to put pressure on her to withdraw the suit against him which she had filed. , The appellant had no semblance of interest, claim ox title to the

property in question. Therefore he could not be said to be a person who was aggrieved by the order of the Custodian General and was therefore

not entitled to file an appeal in this Court. I might refer here to the observations of Anant Singh, J., who has taken a contrary view on the subject.

Anant Singh J., held that as the appellant was an informant he had a statutory right to be allotted a part of the evacuee property and therefore could

maintain an appeal in the High Court. With very great respect I may state that the learned Judge appears to have overlooked the fact that the

provisions of the Evacuees' Administration of Property Act of 2006 are essentially different from the Evacuee Administration of Property

Ordinance of 1949 or the Act of 1950. Reliance was placed by Anant Singh, J., as also by the appellant on a decision of the Supreme Court in

Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property, , 323 where their Lordships observed as follows:

Further Tekchand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobaker was

evacuee property and in view of the order of the Ministry of Rehabilitation he was, as a first informant, entitled to first consideration in the allotment

of this property, the Addl. Custodian was bound to hear him on the truth and validity of the information given by him. When a person is given a

right to raise a contest in a certain matter and his contention is negatived then to say that he is not a person, aggrieved by the order does not seem

to us to be at all right or proper. He is certainly aggrieved by the order disallowing his contention.

In this case it appears that under the orders of the Ministry of Rehabilitation the person who gave information regarding the existence of an evacuee

property had a prior right to the allotment of the property so declared. In the present case there is neither any such direction nor any provision in

the State Act Furthermore in the case which was being considered by their Lordships of the Supreme Court it appears that the informant was given

a right to raise a contest in a certain matter and their Lordships held that if this right is given, to him, he would be an aggrieved person. The

provisions of the State Act, however, do not confer any such right on the appellant Ghulam Mohd. My learned brother Bhat, J., has pointed out

that if the property was declared as evacuee property and the appellant was entered as a tenant of the evacuee property, he would have much

lesser rights as a tenant than he would have at present. Therefore by giving information to the Evacuee Department the appellant actually acted

against his interest. This clearly shows the mala fide intention of the appellant who wanted to protect himself from the consequences of the decree

for ejectment which was sought for by the respondent. For these reasons the decision of the Supreme Court (Supra) cannot be applied to the facts

and circumstances of the present ease, I Would, therefore, fully agree with my brother Bhat, J., that the appeal by the appellant was not

maintainable in this Court because the appellant cannot be said to be a person aggrieved by the order of the Custodian General.

Mr. Prakash raised a preliminary objection to the hearing of the case by ma which was to the effect that order the Jammu and Kashmir

Constitution Act of 1996 where there is a difference of opinion between two judges, the case has to be referred to Full Bench. My attention was

drawn to Section 82 of the Act which runs thus:

(1) When there is a difference of opinion among the judges, composing any bench of the High Court, the decision shall be in accordance with the

opinion of the majority of the judges.

(2) If there is no such majority, then--

(a) if the bench is a full bench, the decision shall be in accordance with the decision of the senior Judge, and

(b) in other cases, the bench before which the difference has arisen shall either, refer the question or the whole case for decision to a full bench.

Although this Constitution was promulgated by His Highness the Maharaja Bhandur of Jammu and Kashmir under his sovereign legislative powers,

yet it most be deemed to have been amended when the same authority namely His Highness granted a Letters Patent to the High Court the

preamble whereof runs thus:

Whereas the High Court of judicature, Jammu & Kashmir State, was established by Order No. 1 of 1985 and by the Jammu and Kashmir

Constitution Act, 1906, and whereas we consider it necessary and expedient to issue Letters Patent to the aforesaid High Court....

Clause 21 (ibid) runs thus:

....and if such Division Court is composed of two or more judges and the fudges are divided in opinion as to the decision to be given on any point,

such point shall be decided according to the opinion of a majority of the Judges, if there shall be a majority, but if the Judges should be equally

divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the

point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

Thus according to the Letters Patent which is the latest law on the subject, where there is a difference of opinion between two Judges, the case

has to be heard by a third Judge from amongst other Judges. Thus the provisions of the Constitution Act of 1990 must be deemed to have been

modified by the Letters Patent issued four years after the passing of the J. & K. Constitution Act of 1996, particularly when the preamble says that

the Letters Patent was granted to the High Court which was established under the Constitution Act of 1996. His Highness who was the Supreme

Authority must be deemed to be fully aware of the Constitution Act of 1998 and if despite Section 62 of the Constitution Act of 1996 clause 21

was inserted in the Letters Patent, the only reasonable inference would be that he intended to modify Section 62 of the Constitution Act of 1996 to

the extent indicated in clause 21 of the Letters Patent. For these reasons the reference made to me is perfectly in order and the contention of Mr.

S. Prakash on this score is overruled.

Since I have agreed with my brother Bhat, J., consequently according to the majority view the appeal has to be dismissed with costs in

accordance with clause 21 of the Letters Patent and the High Court Rules. Hence the appeal is dismissed with costs.