GH MOHD Vs. BADSHAH BEGUM

JUDGEMENT

(1.) THIS appeal was heard in the first instance by a Bench consisting of Bhat and Anant Singh JJ. but as a result of dif ­ference of opinion between the two learned Judges, the appeal has been referred to me for hearing and disposal.

(2.) THE appeal is directed against the order of the Custodian General, Evacuees Property dated 19 -7 -1968 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 prays on 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.

(3.) IT appears that the original, owner of the properties in question was one Raja Hussain Khan who died in 1940, 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 Sulutna was married to one Munsha Khan who was a resident of Kuhar 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 I was that Raja Hayat Mohd. Khan was a Khana Damad of Raja Hussain 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 proper ­ties inherited by them in the following manners: that the pro ­perty situate in Jammu was allotted to Badshah Begum res ­pondent 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 hus ­band of Sarwar Sultana, Major Munsha Khan, belonged to Kathar and had properties there. It was further sought to be proved by respondent 1 that at the time of marriage of Sarwar Sultana in 1942, it was also declared thus 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 pro ­perties 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 sub ­ject 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 support ­ing 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.