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Petitioner: M. K. KHAKWANI VS Respondent: COMMISSIONER, MULTAN DIVISION AND ANOTHER
Court Name: Lahore High Court Judge(s): Manzoor Hussain Sial, Gul Muhammad Khan Title: M. K. KHAKWANI vs COMMISSIONER, MULTAN DIVISION AND ANOTHER Case No.: Intra-Court Appeal No, 718 of 1980 Date of Judgment:1983-04-02 Reported As: PLD 1983 Lahore 427 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MANZOOR HUSSAIN SIAL, J.-This Intra-Court Appeal, preferred by M. K. Khakwani, arises out of the order dated 11-12-1980, of the learned Single Judge of this Court, whereby he dismissed Writ Petition No, 9305 of 1980 directed against the order dated 18-8-1980 of the Court of Wards, Multan, assuming the control and superintendence of agricultural property measuring 613 Acres 5 Kanals and 2 Marlas situated in Chak Hyderabad, Tehsil Khanewal, District Multan. 2. The facts, in brief, giving rise to this appeal are that on 27-2-1980 Mst. Shaheen, resident of 96-C- II, Gulberg-III, Lahore, respondent No, 2, herein ; moved an application under sections 5 and 6 of the Punjab Court of Wards Act, 1903 to the Board of Revenue Punjab for assumption of the superintendence and control of the aforementioned property of her minor children under the Court of Wards on the ground that the appellant who is their father had entered upon a course of wasteful extravagance, likely to dissipate their property. The learned Member, Board of Revenue, vide his order dated 18-3-1980 sent the application to the Commissioner, Multan, for necessary action to safeguard the interest of minors. ' The Commissioner, Multan, purportedly acting under section 11 of the Court of Wards Act, 1903 called for a report from the Deputy Commissioner, Multan, and the latter further asked report from the Assistant Commissioner, Khanewal. The Assistant Commissioner, Khanewal, reported that the land in dispute is not under debt, and being managed properly by the appellant ; nevertheless recommended for its assumption, by the Court of Wards, because the parents of the minors had fallen out and there was no chance of compromise between them. He also suggested appointment of respondent No, 2 as Manager of the estate. The Deputy Commissioner, Multan, did not agree with him for the appointment of respondent No, 2 as Manager of the estate but endorsed
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his recommendation for assumption of the control of minors' property by the Court of Wards on the ground that their parents had fallen out and they were incapable of managing the same. 3. The Commissioner, Multan, acting as Court of Wards issued notice to the appellant. M. K. Khakwani contested the application and filed his reply. After hearing the parties at length the Commissioner came to the conclusion that the parents of minors had fallen out ; they were involved in serious litigation ; and visualized possibility of the dissipation of minors' property. Accordingly on 18-8-1980 in exercise of his jurisdiction under sections 6 and 8 of the Punjab Court of Wards Act, 193 assumed superintendence of the minors and control of their property. 4. The appellant challenged the aforementioned order through Writ Petition No, 9305 of 1980 which was dismissed on 11-12-1980 by the learned Single Judge of this Court affirming the findings of the Court of Wards : to the effect, that the interest of minors could only be protected if their property is placed under the superintendence of the Court of Wards. The learned Judge rather observed that the minors' interest would not be safe in the hands of the appellant particularly if he continued to manage the affairs of their estate. It was further observed that the scope of interference in the orders of tribunals of exclusive jurisdiction was limited in Constitutional jurisdiction of this Court. The conclusion drawn by the tribunal in the given circumstances of the case, was possible can account of the hatred and enmity having been developed between the parents of the minors resulting in divorce to respondent No, 2. 5. The appellant has called in question the validity of the aforesaid order in this appeal. The appellant claims that he has two daughters named as "Almas Khakwani", one from his German ex- wife who is major ; and the other from respondent No, 2, who is still minor. For distinction ; one from German wife will be referred hereinafter as "Alms Khakwani major" and the other as "Almas Khakwani minor." 6. Mr. Asadullah Siddiqui learned counsel for the respondent No, 2 raised preliminary objection to the effect that the appellant has no locus standi to question the validity of the order of respondent No 1 assuming superintendence and control of the persons and property of the minors. The objection is, however, repelled on the ground that the appellant is father of minors and was managing their property before it was taken over by respondent No, I together with a part of his own property jointly owned with minors. 7. Mr. S. M. Masood, learned counsel for the appellant contended that admittedly 4, out of 5 minors, at the relevant time were residing at Lahore, although their property was situated at Multan. In these circumstances it was necessary for the Board of Revenue Punjab to have acted under proviso to subsection (1) of section 4 of the Court of Wards Act, 1903 and determined as to which of the Commissioners, would deal with the case before entrusting the same to the Commissioner Multan. According to the learned counsel, the Member, Board of Revenue, did not apply his mind and forwarded the case to respondent No. 1, who had no jurisdiction to pass the impugned order. It was stated that, in fact, the Member, Board of Revenue himself did not deal with the matter and the Secretary, Board of Revenue acting on his behalf forwarded the application to the respondent No. 1 for necessary action. ' The learned Advocate-General, appearing for respondent No. 1 controverted the submission of the appellant's counsel and stated that the requirements of section 4 of the Court of Wards Act were duly complied with. The Commissioner, Multan, had concurrent jurisdiction and the same was invoked through the Board of Revenue as envisaged under the relevant provisions of law. It was stated that the appellant did not object to the jurisdiction of respondent No. 1 to adjudicate upon the matter. It was pointed out that the appellant being permanent resident of Multan suffered no prejudice by decision of the application of respondent No, 2 Multan by the Court of Wards. 8. For the appreciation of this point and for facility of reference, subsection (1) of section 4 of the Court of Wards Act, 1903 is reproduced hereunder :-
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"The Commissioner of the Division within the limits of which any ward ordinarily resides, or any property of any ward is situate shall be the Court of Wards in respect of the person and property of such ward ; provided that where any ward ordinarily resides within the jurisdiction of one Commissioner and his property or any part thereof is situate within the jurisdiction of any other Commissioner, the. Board of Revenue shall determine which Commissioner shall be the Court of Wards in respect of the person and property of such ward." ' With a view to examine if requirement of the above provisions of law were complied with, we sent for the original file, a perusal whereof showed that the application of respondent No, 2 was placed before the Member, Board of Revenue on 18-3-1980, He did apply his mind to the facts of the case and passed order on the same day sending the case to Commissioner, Multan, for action under the law. The Secretary, Board of Revenue in turn only communicated his order on the following day. Admittedly minors' property is situate at Minton ; the Commissioner, Multan, had concurrent jurisdiction in the matter. The order of the Member, Board of Revenue, entrusting the case to him, therefore, was open to no valid objection. It is true that mere omission to raise objection regarding jurisdiction of tribunal is not an absolute bar disentitling a person to plead lack of jurisdiction for the first time in writ jurisdiction, but the rule is not attracted in the instant ease. The appellant did not raise objection regarding territoral jurisdiction of the respondent No. 1 to adjudicate upon the dispute but, in fact, in para. 3 of his reply to application of respondent No 2 only objected about the assumption of the control of immovable property owned by Mst. Almas Khakwani major daughter of the appellant. The appellant, therefore, cannot be allowed to press into service for the first time at this stage objection regarding territorial jurisdiction of respondent No. 1 to the application particularly when he is permanent resident of Multan and no prejudice shown' to have been caused to him. 9. Learned counsel for the appellant next contended that the Court of Wards had no jurisdiction to assume control of land measuring 594 Ianals and 10 Marlas exclusively owned by "Almas Khakwani major" which the appellant gifted to her in the year 1959 ; long before "Almas Khakwani minor" was born. It was asserted that "Almas Khakwani minor" had no land in Chak Hyderabad and relied on Tara Singh and another v. Ganda Singh and others (I) to show that the Court of Wards had no jurisdiction to assume superintendence of the property of other persons in which minor had no share. ' It was also submitted that the compromise decree dated 30-5-1977, based on unregistered family settlement deed dated 28-8-1976 ; was obtained through misrepresentation and was ineffective qua the rights of "Almas Khakwani major" who was neither party to Family Settlement deed ; nor was represented before the Court ; when compromise decree was passed adverse to her interest in the land. It was pointed out that even appellant himself was neither signatory to the Settlement deed nor he consented to the compromise decree ; because at the relevant time he was detained in Jail. Learned counsel for the appellant relied on Guduri Anjayya and another v. Decabbak Thai Gimdaraya and others (2) to contend that nobody could be bound or prejudiced by an order made in a proceeding to which he or the person under whom he claimed was not a party. Undoubtedly the Civil Court decree had been implemented in the revenue record and "Almas Khakwani minor" shown as owner of land ; prior to the assumption of the control of minor property in the village by the Court o Wards. As "Almas Khakwani minor" was recorded as owner of the Ian in the village, the Court of Wards had the jurisdiction to assume superintendence of her property. As long as the Civil Court decree remained intact and entries in the revenue record, based thereon, showing "Almas Khakwani minor" as owner remained unaltered ; the action of the Court of Wards assuming control of her property was proper. Obviously neither the Court of Wards ; nor for that matter this Court in its Constitutional jurisdiction has to go behind the decree ; and determine
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whether the same was obtained by misrepresentation and based on unregistered family settlement deed. 10. The cases cited above by the learned Counsel, therefore, are of no avail to the appellant. We may observe that without prejudice to the case of "Almas Khakwani major" who had filed separate writ petition against the order of the Court of Wards, the appellant who admittedly did not challenge the aforesaid decree before a competent Court cannot successfully assail the same in collateral proceedings. 11. It was further argued that the learned Judge misconstrued certain facts on the record, and passed order resulting in miscarriage of justice. Reference was made to para. 14 of the impugned order ; to show that it was wrongly observed therein, that the appellant had drawn 'Settlement Deed' in his capacity as father of minor children and acknowledged "Alias Khakwani minor" as owner of the land, and also that her status as owner was admitted, in suit later on instituted and compromised by him. The appellant claimed that she was owner of no land in Chak Hyderabad. The land in dispute exclusively owned by "Almas Khakwani major" was wrongly taken over by the Court of Wards. {{FOOT NOTE}} (1) AIR 1921 Lab. 240 (2) AIR. 1943 Made 301 {{FOOT NOTE}} 12. It is true that the execution of family settlement deed, by the appellant, and institution of civil suit, resulting in compromise, are disputed questions of fact, which cannot be relied upon ; before determination thereof by competent Court of plenary jurisdiction. Nevertheless ; the learned Judge after taking into consideration other factors concurred with the order of the Court of Wards to hold that the interest of minors could only be safeguarded if their property is placed under the superintendence of the Court of Wards, and found no justification to interfere in the exercise of limited Constitutional justification in the order of the Commissioner, assuming superintendence and control of the minors' property. The finding of the learned Single Judge on this point has support of the rule laid down in Rehmat Shah v. The Chief Election Commissioner and another (1) wherein it was held :- "An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands add will not substitute its own findings for the finding recorded by the tribunal." ' And also in Muhammad Hussain Munir and others v. Sikandar and others (2) relevant to the extent is reproduced hereunder :- "It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable which plainly is not the intention of the Constitution makers." 13. The next point argued by the learned counsel for the appellant was that the Assistant Commissioner, Khanewal, was inimical towards the appellant. He got registered criminal case against him at the instance of respondent No, 2. He made biased report purportedly under section 11 of the Court of Wards Act against the appellant on 5-4-1980, which was mechanically endorsed on 14-4-1980 by the Deputy Commissioner, Multan, recommending taking over of the minors' property under the Control of Wards Act, 1903. The Commissioner, Multan Division acted mala fidley in relying on the biased reports made by the Assistant Commissioner, Khanewal, and the Deputy Commissioner, Multan, and assumed the superintendence and control of the minors and their property under the provisions of Court of Wards Act, 1903.
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14. Learned Advocate-General on the other hand stated that the allegations of mala fide levelled by the appellant against the Court of Wards are false and frivolous. He asserted that the learned Commissioner had no animus against the appellant and he passed order which is primarily in the welfare of the minors. It was also submitted that the allegation of mala fide levelled in this case being question of fact cannot be determined in Constitutional jurisdiction of this Court. ' We have considered the submissions made by learned counsel for the parties on this point and find that there is nothing on the record to show that the Commissioner, Multan, had personal malice or motive against the appellant to cause him harm. On the contrary, we find that the, report (1) PLD 1973 $ C 24 (2)PLD1974SC139 ' submitted by the Assistant Commissioner, Khanewal, to the Deputy Commissioner, Multan, described "Khakwani Agricultural Farm" as having reputation of a good mechanised farm and under no debt. The case registered against the appellant for the allegations against him at the direction of Assistant Commissioner, Khanewal, was in the discharge of his official duties and cannot be attributed to be a mala fide action on his part. Similarly the Deputy Commissioner, Multan, did not endorse the recommendation of the Assistant Commissioner, Khanewal, for the appointment of Mst. Shaheen as manager of the minors' property. The Commissioner, Multan, provided full opportunity of hearing to the parties. He passed order in the light of arguments advanced by learned counsel for the parties and after consulting the relevant revenue record. The appellant no doubt leveled general allegations of mala fide against the Court of Wards and other revenue officers but did not plead them with particularity. The Court of Wards. Multan, and other revenue officers being statutory functionaries had to If perform their official acts in discharge of their duties. The actions, therefore performed by them carry the presumption of regularity, unless proved otherwise. In this connection reference can be made with advantage to the following observations of the Supreme Court in the case of The Federation of Pakistan v. Saeed Ahmad and others (1): "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case." It may be possible for the appellant to contend that the impugned order passed by the Court of Wards is wrong or illegal but in the absence of 1 reasonable material on the record in support of allegations of mala fides hi contention in this behalf has no substance. 15. The next argument advanced by learned counsel for the appellant was that property in question, forms part of "Khakwani Farm" which under the management of the appellant has earned the reputation of being one of the best mechanized Farms of the country. It was pointed out that this assertion finds support from the report made by the Assistant Commissioner, Khanewal. It was submitted that there is nothing on the record that the appellant had mismanaged the property or that he was incapable of managing the same. It was contended that in these circumstances the respondent No, I had no jurisdiction to assume superintendence and control of minor's property in the purported exercise of jurisdiction under the provisions of the Court of Wards Act, 1903, so as to deprive the appellant, who is father of the minors to manage the property of his own minor children. It was contended that respondent No. 1 himself did not apply his mind consciously to the
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facts of the case ; but acted mechanically to follow the reports of his subordinate revenue officers. It was also contended that the fact that the (1) PLD 1974 SC 151 ' appellant had divorced his wife or there existed litigation between the parents of the minors ; hardly justify the action of respondent No. 1 to assume control of minor's property under the Court of Wards Act. It was also stated that the appellant being natural guardian of minors has preferential right to manage their property in accordance with family traditions. It was pointed out that in fact the property owned by the minors was gifted to them by the appellant and he has greater love and affection for them and deeply interested in their welfare. It was submitted that the learned Single Judge has not adverted to this aspect of the case. Learned counsel cited following cases in support of his submissions :- (1) Fateh Muhammad Khan v. Commissioner, Peshawar Division and another PLD 1957 Pesh. 112. (2) Rajah of Vizianagaram v. Secretary of State and others AIR 1937 Mad. 51. (3) Muthammal v. Kandaswa mi Naicker AIR 1955 N. U. C. Mad. 2440 Vol. 42. (4) R. N. A. Subramunya Filial v. Ammaya Ammal etc. AIR 1916 Mad. 630. (5) Mrs. Annee Besant v. G. Narayaniah and another AIR 1914 P C 41. (6) Rashid Ahmad v. Mst. Amina Begum PLD 1968 Lah. 1045. (7) Mst. Khanamji v. Farman Ali and others PLD 1962 W. P. Lah. 166. (8) Hadish Bapari v. Boga Mullah Sheikh 38 I C 787. (9) Hari Chand v. Ghulam Rasool AIR 1932 Lah. 385. 16. Mr. Assadullah Siddiqui, Advocate learned counsel for respondent No, 2, on the other hand, submitted that there being allegations against the appellant of having habits of wasteful extravagance exposing minors' property under his management to risk of complete dissipation ; the parents of minors having fallen out, adopted permanent separation and engaged themselves in serious litigation ; the action of the respondent No. 1 to assume superintendence of minors' property in these circumstances was in the welfare of the minors. It was stated that the appellant has no vested right to manage the property of the minors. As a matter of fact he wants to have the property of minors for his own benefit. He did not maintain accounts of the income of the property prior to its takeover under the Court of Wards Act. It was contended that maintenance of excellent Farm has no relevance to the question whether the property in dispute be taken over by the Court of Wards or not. It was stated that the property of minors in his hands cannot be free from danger of its total dissipation. ' It was further argued that the proceedings under the Court of Wards Act are primarily meant to protect the property of wards who are incapable of managing the same and these proceedings are not judicial proceedings. The Court of Wards is not supposed to act as judicial authority nor required to hold judicial inquiry for investigation of facts. The Court of Wards can proceed even without a formal application and the order passed in his best judgment is not amenable to writ jurisdiction. It was also stated that the consideration for appointment or removal of guardian of minor's property under the Guardians and Wards Act has no relevance to the assumption of the superintendence of minors' property under the. Court of Wards Act, 1903. Learned counsel cited following authorities in support of his contentions :-
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(1) Mst. Wazir Begum and another v. The Province of West Pakistan and others PLD 1960 Lah. 1019. (2) Raja Harmathedra Singh v. Punjab State and another AIR 1953 Pb. 30 (33). (3) Manmohini Dasi v. Hari Parsad Bose and others AIR 1924 Pat. 755. (4) Isidore Bose v. Dr. Mrs. S. Brown and another AIR 1951 Pb. 338. (5) Begum Zainab Tiwana v. Ch. Aziz Ahmad-Waraich and others PLD 1967 Lab. 977. (6) The Queen v. Gyngall (1893) 2 Q B D 232 (241). 17. It would be appropriate at this stage, to refer to the cases cited by the learned counsel for the parties in support of their submissions. ' In the case Fateh Muhammad Khan v. Cammissioner, Peshawar Division the Court of Wards Peshawar Division vide notification under section 5(2) of the Court of Wards Act, 1903, assumed superintendence of the property owned by the heirs of Sarfraz Khan deceased on the plea that the heirs of Sarfraz Khan were incapable of managing their own property. Fateh Muhammad, one of the heirs of Sarfraz Khan, presumably enjoying the entire property in dispute assailed the vices of the notification in writ jurisdiction before the Peshawar Bench of erstwhile High Court of West Pakistan. It was held that in six districts of N.-W. F. P. Including. Peshawar, only Provincial Government and not Commissioner, Peshawar Division, was competent to direct that the property in question be placed under the superintendence of Court of Wards. It was further held that the impugned order was also bad because it was made, not in one of the contingencies mentioned in section 5 of the Court of Wards Act, but because one of the heirs had deprived all the other heirs of their rights in the property of their father. It was also observed therein, that in such circumstances parties should have been left to have their recourse to ordinary Courts of law. The rule laid down in that case has no relevance to the facts and circumstances of the present case. The property in dispute belongs to minors and there is no dispute of inheritance. The appellant on the strength of being father of the minors assailed the impugned order of Court of Wards taking over their property, which was being managed by him before its takeover by the Court of Wards. ' The next citation viz. Rajha of Vizianagaram v. Secretary of State is by a…
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