Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: A DMINISTRATORGENERAL PUNJAB VS Respondent: M. STANLEY CHARLES WILLIAM ROSE
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan Title: A DMINISTRATORGENERAL PUNJAB vs M. STANLEY CHARLES WILLIAM ROSE Case No.: Civil Miscellaneous Nos. 2016/C and 5072-L of 1980 Date of Judgment:1986-07-22 Reported As: PLD 1986 Lahore 333 Result: Order accordingly
JUDGMENT
JUDGMENT ' The Administrator-General Punjab instituted these proceedings by filing a petition under sections 11 and 28 of the Administrator-General's Act III of 1913 and section 253 of the Succession Act, 1925, seeking the directions- (i) to take over the temporary charge of the properties as per provisions of the aforesaid laws ; (ii) to apply for Probate or Letter of Administration of the estate after full or necessary inquiry as to the true value or nature of the estate; and (iii) to retain out of the assets of the estate any fee chargeable under the rules made under the Act and to reimburse himself for all payments made or the expenses incurred in respect of the collection, protection and realization of the property. ' It may be noted that in this petition, Albion House has been described erroneously as property No, S. 19. R. 86, because this number has been assigned to only one of the buildings of the Albion House which admittedly consists of many other buildings to which different numbers have been assigned in the Property Tax Record. 2. The Administrator-General filed the other petition (Civil Misc. No, 5672-L-1980) wherein after giving details of the inquiries made by him about the whereabouts of the three brothers, namely, Mr. Stinley Charles William Rose, Mr. Henery Maurico Rose and ,Mr: Frederick St. John Rose, and of their heirs, if any, it was averred that from the inquiries made, it was clear that the aforesaid three brothers were not alive, but before filing petition for Letters of Administration in this Court it is necessary that property is taken back from illegal occupants as well as from transferees who have, with the connivance of the Settlement Department, got the property transferred in their names
---
## Page 2
although they were aware of the fact that this was not evacuee property. With these averments, it was prayed that notices be issued to :- (i) the Member (Settlement) Board of Revenue, to show cause as to how the Settlement Department transferred the portions of properties in question to different claimants while they were aware that the property is not evacuee property ; (ii) the transferees and occupants as per details given in the Surveyor's Report to show their eligibility to occupy the property and if found ineligible, after cancelling their allotment/transfers, direction be passed to have the property vacated through police force. ' It was further prayed that Administrator-General be directed to apply for Letters of Administration after the completion of the above action and in the meantime, interim powers to hold the above property be granted. This Court vide order, dated 16-9-1980 directed issuance of notice to the transferees, occupants and the authorities mentioned in this petition. Pursunant thereto, the Settlement Authority, t ie transferees and occupants joined the proceedings and filed written statements. 3. These petitions were filed and the aforesaid directions were sought as it came to the notice of the Administrator-General on the moving of an application by Abdur Razzaq, an occupant, that property known as Albion House belonged to the aforesaid three brothers in equal shares. It was further stated in the petition on the basis of information received that this property known as Albion House, Upper Mall, Lahore was leased out for 50 years in 1919 to one Mr. Kawasha Dossabbo Wadia Proprietor of M/s. Bombay Cycle and Motor Agency and then in 1936 the Lessee assigned his rights in the said property for the remaining period jointly to Diwan Ram Lal Sardar Amar Singh, Sardar Sapuran Singh Chawala and Pandit Krishan Bal. As the lessee (K. D. Wadia) had granted sub- leases to M/s. Kirpa Ram and Brothers, M/s. Regal Theatres Ltd. And M/s. Lahore Boot House of different portions of property before the assignment of rights under the deed, dated 18-12-1936, these sub-leases were excluded from the operation of the deed of assignment. It was also stated in the petition that after Partition the property was taken over firstly by the Rehabilitation Department presuming it to be an evacuee property and latter by the Settlement Department and the same was transferred to various transferees. The petitioner pleaded that on the expiry of 50 years' lease in 1969 the property i,e, Albion House, Upper Mall, Lahore, automatically reverted to the owners whose whereabouts were not known and that in the revenue record the property continued to be recorded in the names of the British Subjects. It was also pleaded that the aforesaid three brothers, the original owners, were neither alive nor any of their legal heirs resided in Pakistan and as the inquiries which were being conducted were to take a considerable time to conclude it was necessary in the meanwhile to take over the entire property for the benefit of the owners/beneficiaries, if any, residing in Pakistan and to protect the said property from all apprehended dangers of misappropriation, deterioration and wastage pending the determination of the questions whether any of the above-named three owners was alive, whether any legal heir exists and if so an application for probate of any Will or in its absence Letter of Administration has to be submitted. 4. These proceedings were contested by various transferees to whom the various properties and portions of buildings originally owned by the British Subjects were transferred by the Settlement Department. Some of the persons who are in occupation of the buildings also joined these proceedings claiming that they are necessary parties as the question of right, interest and title of the transferees is under adjudication. 5. M/s. Mahmood A. Bakhsh, Saeed A. Bakhsh and others, the transferees of property No, S-19-R-86 commonly known as Kirpa Ram Building, 63-The Mall, Lahore, one of the properties of Albion House, besides raising preliminary objections to the maintainability of the petition and to the jurisdiction of the Court to make the directions prayed for in the petitions under Act III of 1913 contended that
---
## Page 3
there was nothing on record to show that complete alienation of the property was not made by the persons concerned during 50 years in question. It was added that at the relevant time immovable property could be sold through deeds which could be registered in any of the presidency towns regardless of the location of the immovable property and the property in question could be alienated completely in favour of these very lessees during the stipulated period of lease by having the deeds registered anywhere in British India. The plea that the property in question would automatically revert to the owners at the expiry of 50 years period was controverted by placing reliance on clauses 3, 8 and 9 of the Lease Deed, dated 14-2-1919. The main plea on merits raised was that the property in question was not owned by the three persons named in the application as nothing definite in support of this plea was either urged or referred to. It was further contended that no occasion arose for making an application for grant of Letter of Administration as the property in question already stood was governed by the Will of Mrs. Mary Rose and Mr. Stanley Charles William Rose was acting as an executor of the estate in question. The other transferees of the property in these replies have raised the pleas similar to the ones noted above. 6. The Settlement Department in its reply raised preliminary objections to the effect that as the property in question stood acquired, treated and dealt with as evacuee property, no civil or revenue Court or other authority except the Custodian has any jurisdiction to proceed on the basis that the said property was not evacuee property ; that the direction sought as to taking over of the possession of the property without first obtaining the declaration from the Custodian that the property in question is non-evacuee property, is misconceived in law ; that the property in dispute automatically stood acquired under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and having already been transferred, this Court cannot intervene in exercise of its original civil jurisdiction in the matter in view of the various provisions contained in the aforesaid Statute ; and that the Administrator-General can be permitted to act only for the benefit of the heirs of the deceased owners of the property but in the petition moved by him nothing has been urged to suggest that the deceased owners have left any heir at all. It was pleaded that in the circumstances, the Administrator-General cannot be given the possession of the disputed property for his own benefit because in the event of failure of succession the property shall stand escheat in favour of the State and the application under section 11 of Act III of 1913 would not lie. 7. A specific reference to the written statement of Ifzal Hussain and Mahmood Hussain respondents Nos. 29 and 32 may be made. These respondents in their written statement pleaded that section 11 of Act III of 1913 applies only to property of a deceased person but as the owners of the properties in questions are not known to be or affirmatively stated to be dead, the petition as made is not maintainable and that they do not hold any interest in that property bearing No, S. 19 R. 86 The Mall, Lahore and as such the petition is not maintainable against them. No reply was given of paras 1 to 11 of the petition. It may be noted here that in the petition moved by the Administrator-General the number of the property in some of the paras. Was given as S. 19. R. 86. Ibis property was admittedly one of the properties of Albion House which comprises of various buildings which have been assigned different property numbers in the Property Tax Record. The property claimed by these respondents i.e Property No, S. 19. R. 78 admittedly forms part of the Albion House i,e, the estate left by Mrs. Mary Rose. 8. On the basis of the pleadings of the parties 8 issues were framed on 14-3-1984 and the matter was adjourned for the framing of further issues, if any, on 17-3-1984 as one of the counsel was not then present. On 17-3-1984 one more issue was added. The issues finally framed read as under :-- (1) Whether the petitions, as framed, are not maintainable ? 0. P. R. (2) Whether the properties subject-matter of the petitions are the "assets" belonging to the three persons named in the petition within the meaning of Act III of 1913, if so, what directions need be
---
## Page 4
passed ? 0. P. P. (3) Has the right, title or interest of Stanley Charles William Rose and Fredrick John Rose in the property in question extinguished by operation of law or otherwise ? (4) Whether the petitions filed by the Administrator-General are mala fide ? (5) Is the will of Mrs. Mary Rose, dated 16-6-1903 still operative. Does it bar the Administrator- General from seeking direction from this Court ? (6) What is the effect of treatment of the properties in question as evacuee properties and their transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 195s on the right, title or interest of the owners of the property in dispute ? (7) Are the transferees the only necessary and proper parties ? (Onus on transferees/respondents)? (8) Whether the tenants under transferees are necessary or proper party to the petitions ? (9) Whether the persons mentioned in issue No, 3 are evacuees, if so, what is its effect ? (10) Relief. 9. Before dealing with the issues, it is appropriate to give the history of the estate in dispute with reference to the various transactions entered into and affecting the properties constituting the estate, in one way or the other. These facts have emerged from the evidence produced by the parties in these proceedings and it appears that at the time of initiation of proceedings neither the Administrator-General nor the Settlement Department nor the transferees nor the occupants of the properties were aware of the correct facts and of the transactions entered into respecting the estate in dispute. It was due to this reason that in the petition filed by the Administrator-General and the replies filed by the respondents, many important facts and pleas were not taken. According to the evidence produced by the parties on record, the estate in question was originally owned and possessed by Mrs. Mary Rose who had three sons, namely, Mr. Stanley Charles William Rose, Mr. Henry Maurice Rose and Frederick St. John Rose and two daughters, named, Winifred Lydia and Mrs. Gladys May Hill. Winifred Lyda had two daughters namely, Eric Charles Stuart Dawe and Sheila Winifred Adams. The other daughter, namely, Gladys May Hill had one son named Earnest Charles Hill and one daughter named Greda Mary Clear Hill. The aforesaid Mrs. Mary Rose made a Will dated 16-6-1903 with respect to the estate situated in Donald Town, Upper Mall, Lahore estate included Albion House which was earlier known as Pollock House. At the time of execution of Will the area with its structures and land attached thereto under the Pollock House/Albion House was on lease with a Firm of Outfitters named Phelps & Co. According to the recitals of the Will, the entire estate of Mrs. Mary Rose was delineated on a plan attached with lease deed of the aforesaid Phelps & Co. A certain area delineated by the letters A, B, C and D therein indicated that piece of land which was not included in the lease of Phelps & Co. 10. Mrs. Mary Rose, under the Will, dated 16-6-1903 (Exh. P. 36) bequeathed the area of land delineated by letters A, B, C and D to her three aforementioned sons absolutely in equal shares. The land with superstructures leased to Phelps & Co., was bequeathed by Mrs. Mary Rose with the stipulations that the Executors and Trustees named by her shall stand possessed of the same for paying half part or share of its rents, profits and other income arising therefrom to her youngest son namely Frederick St. John Rose during the term of his natural life or until he be in receipt of monthly income of not less than Rs, 200 and on the death of the said son or on ceasing of his interest, the trustees were required to pay the said share of rents or profits or income to the daughter named Winifred Lydia Dawe wife of William Stuart Dawe during her life and from and after the death of their survivors i,e, Winifred Lydia Dawe and son Frederick St. John Rose or ceasing of the interest of the said son whichever happens last, the Trustees shall be possessed of the said half part or share upon trust for all the children of the said daughter Winifred Lydia Dawe who being sons shall attain the age of 18 years or being daughters shall attain that age or marry, in equal
---
## Page 5
share. It was further provided in the Will that if there was no such child of the said daughter Winifred Lydia Dawe then the said half share of the rent,, or profits of said shop or business premises will be held in trust for the three sons who shall hold the same in equal shares absolutely. The other half share in the said premises shall be held by the trustees to pay the rent, issues and profits and income arising therefrom to the other daughter namely Gladys Mary Rose during her life and after her death, to her children who being sons shall attain the age of 18 years or being daughters shall attain that age or marry, in equal shares and if there be no such child, then the said share shall be held by the trustees far the said three sons equally. The other details mentioned in the Will being unnecessary need not be stated. 11. The Letter of Probate (Exh. P. 33) in favour of Stanley Charles William Rose one of the Executors on the basis of Will of Mrs. Mary Rose was issued vide order, dated 11-2-1905 (Exh. P. 32). 11-A. In pursuance of the Letter of Probate and in the capacity of the Executor, Mr. Stanley Charles William Rose executed lease-deed dated 14-2-1919 (Exh. P. 3) in favour of Mr. K. D. Wadia, Proprietor of Bombay Cycle & Motor Agency Ltd., leasing out the property known as Albion House situated over an area of approximately 28 Kanals and 5 Marlas for a period of 50 years. The conditions contained therein permitted putting up of structures by the lessees who after termination of the lease period were to have first option to purchase the land underneath. The costs incurred of all these superstructures were also agreed to be paid back to the lessees under the term and conditions stipulated in the lease-deed. There were, however, no clauses permitting grant of sub- leases by the lessees. On 30-1-1920 Mr. K. D. Wadia, the lessee through a deed of assignment assigned his lease rights in favour of Bombay Cycle and Motor Agency Ltd. This company by separate sub-leases dated 4-4-1927 (Exh. P. 4), 25-11-1927 (Exh. R. 18) and 4-6-1933 leased out respectively to Messrs Kirpa Ram and Brothers, Belu Ram & Sons of Regal Theatres Ltd., the respective portions of the premises to the aforesaid sub-lessees till the end of the lease period at the monthly rent of Rs, 300, Rs, 150 and Rs, 612. Messrs Belu Ram & Sons sub-lessee executed a further sub-lease dated 15-3-1932 (Exh. R. 17) in favour of Sh. Ghulam Jilani and Sh. Ghulam Samdani at the monthly rent of Rs, 150. Thus, Sh. Ghulam Jilani and Sh. Ghulam Samdani (the predecessors-in-interest of respondents Nos. 29 and 32) came to be substituted in place of Messrs Belu Ram & Sons and the property leased out to Sh. Ghulam Jilani and Sh. Ghulam Samdani for the purpose of identification came to be mentioned as Lahore Boot House. Then on 18-12-1936 Messrs Bombay Cycle and Motor Agency Ltd., which had received rights through deed of assignment, dated 30-1-1 20 transferred and coveyed their rights by executing a deed of assignment (Annexure 'E' to the petition) in favour of Mr. Justice Diwan Ram Lal, Sardar Sampuran Singh Chawla, Raj Krishan Bal and Amar Singh. In 1939 sale-deed, dated 18-2-1939 (Exh. R. 1) was executed by Mr. Homi Jehangir Rustomji, General Attorney of Winifred Lydia Dawe, her son Eric Charles Stuart Dawe and daughter Sheila Winifred Adams, Gladys May Hill her son and daughter Earnest Charles Clear Hill and Miss Greda Mary Clear Hill and Mr. Stanley Charles Rose in favour of Mr. Justice Diwan Ram Lal, Sardar Sampuran Singh, Sardar Amar Singh and Raj Krishan Bal. This sale-deed was in respect of Albion House measuring 28 Kanals and 5 Marlas. This sale-deed, it appears, was not got incorporated in the revenue record, though the deeds of assignment and the various leases executed in respect of the property constituting Albion House do find mention in the revenue record. In 1947, the Partition took place. The properties comprised in the estate known as Albion House except the building subject-matter of the sub-lease, dated 15-3-1932 made in favour of Sh. Ghulam Jilani and Sh. Ghulam Samdani came to be treated as evacuee properties and allotment orders were issued in favour of various persons by the Rehabilitation Department. On the enforcement of Settlement Laws, the leased properties were transferred to the various occupants and to the other transferees, the respondents in the petition. The building, subject-matter of sub- lease of Sh. Ghulam Jilani and Sh. Ghulam Samdani, was, however, neither treated as evacuee
---
## Page 6
property nor was transferred under the Settlement Laws and is in possession of the heirs of Sh. Ghulam Samdani. It is alleged that on partition of the properties between the two brothers, namely, Sh. Ghulam Jilani and Sh. Ghulam Samdani, this property fell to the share of Sh. Ghulam Samdani. This building which was described in the record earlier as Lahore Boot House and later on as Amin Building was assigned property No, S-19-R-78 in the Taxation Record. 12. Now I propose to dispose of the issues as under: - Issue No, 1: ' None of the learned counsel for the respondents addressed any argument with respect to the objection as to the non-maintainability of the petition in the present form. This issue was framed on the basis of the objection raised by Dr. Basit, learned counsel for Mahmood Bakhsh and Mst. Surraya and others. The position taken by him during the arguments was that these petitions be decided on merits and that the rights of the parties in the properties in question be settled on the basis of the evidence available on record as in other proceedings held in respect of the property before any other authority this evidence was not then available. In these circumstances the issue is decided against the respondent. Issues Nos. 2 and 3: ' As common questions arise for determination in these two issues, the same a,e being dealt with together. The properties were surveyed under the order passed by this Court and the report of the Surveyor along-with the plan prepared by him shows that the properties in question stand constructed over 28 Kanals and 5 Marlas approximately. According to the lease-deed dated 14-2- 1919 (Exh. P. 3), area of Albion House was 28 Kanals and 5 Marlas comprising of Khasra Nos. 1863, 1864 and 1869 as per Jamabandi for the year 1912. In the sale-deed dated 18-2-1939 (Exh. R. 1) again area of Albion House is given as 28 Kanals and 5 Marlas comprising Khasra Nos. 2688 and 2698 as per Jamabandi for the year 193334. Reference to Khasra amarti for the years 1945-46 (Exh. P. 2) would show that as against Khasra No, 2690, Khasra Nos. 2157, 2158, 2159, 2160, 2161, 2162, 2164, 2165. 2166, 2168 and 2169 were assigned and for Khasra No, 2688 the new Khasra number was 2171. These Khasra numbers measure 28 Kanals and 5 Marlas. It may be pointed out here that as per the entries of Khasra amarti for the year 1945-46, Stanley Charles Rose and others held share in Khasra No, 2170 (old Khasra No, 2689) also alongwith Hindu owners. It will be recalled here that in the Will besides Albion House which was on lease with Phelps & Co. There was some other area delineated as A, B, C and D The area of Khasra No, 2170 may be referable fully or partly to the area earmarked as A, B, C and D in the Will. This can, however, be determined by look ice into the revenue record since 1913 to date but the same has not been made available in these proceedings. ' The case of the transferees from the Settlement Authorities was that the sale-deed (Exh. R. 1) having been executed by Stanley Charles Rose in his personal capacity as well as the executor under the Will (Exh. P. 36) alongwith the two daughters and their children the properties of the Albion House came to vest fully and absolutely in the Hindu purchasers, and as such the estate of Mrs. Mary Rose i. e. Albion House cannot be considered to be the 'assets" belonging to the three sons named in the petition within the meaning of Act III of 1913 and hence no question of making any of the directions as prayed for, arises. Ch. Khurshid Ahmad, Advocate, learned counsel for the heirs of Ghulam Mani respondents Nos. 29 and 32 submitted that these respondents as well as their, predecessors-in-interest though were purchasers of superstructure and had entered the building nearing Property No, S-19-R-78 under the sub-lease yet they having exerted rights as full owners since 1932 as against the English gentlemen, were entitled to claim adverse possession and so full rights of ownership in the land underneath came to vest in them through prescription much before Partition. ' As regards the land underneath, the plea advanced was that whatever interest vested in the original owner i. e. Mrs. Mary Rose or her heirs, the same came to vest in the Central Government by virtue of the Evacuee Laws enforced in view of the purchase of these rights made by the Hindus.
---
## Page 7
The evidence produced by these respondents comprises of the statements made by Asghar Ali (P. W. 3), Sh. Ghulam Mohy-ud-Din (R. W. 5) and Mahmood-ul-Hassan (P. W. 6). The documents referred to during arguments were lease-deed, dated 14-2-1919 (Exh. P. 3), sub-lease (Exh. R. 17), and sub-lease (Exh. R. 18). In short the plea raised was that neither the properties in question can be called "assets" under section 2, nor sections 11 and 28 of Act HI of 1913 in any way apply. ' The case of the Administrator-General and the occupants was that the sale-deed (Exh. R. 1) is ineffective in law to convey the right, title or interest in the property to the evacuee owners in view of the inherent contradiction, inaccurate factual statements contained in the deed itself and due to legal incompetence of the executants of the deed. Mr. Abid Hassan Minto, Advocate, in support of this assertion submitted that the sale-deed assumed as if the two daughters of Mrs. Mary Rose and their children…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.