GULREZ QURASHI Vs. CUSTODIAN GENERAL

JUDGEMENT

(1.) Aggrieved of an order dated 28/07/1979 passed the Custodian General Jammu and Kashmir confirming order dated 20-1-1979, passed by the Custodian Evacuee Property Kashmir, the petitioners have approached this Court through the medium of the present petition. Petitioners claim to be legal heirs of Dr. Aziz Ahmad Qureshi. One Dr. Wazir Ahmad Qureshi who was a permanent resident of Jammu and Kashmir became evacuee after 1947 and settled permanently at Sunderabad road, Prem Gali, Lahore. Following properties belonging to Dr. Wazir Ahmad Qureshi situated in the State of Jammu and Kashmir were declared as evacuee properties under the provisions of Evacuee (Administration of Property) Act, 2006. 1. A house at Wazarat Rd. Residency, Opp., Custodian Office in Jammu City. 2. A plot of land in village Brein Srinagar Tehsil. 3. A plot of land in Mohallah Rehari, Jammu City. 4. A plot of land in village, Domana, Reh; Jammu or Akhnoor.

(2.) Dr. Wazir Ahmad Qureshi is stated to be dead and survived by his widow Mahmooda Begum and son Tanveer Ahmad. These legal heirs of Dr. Wazir Ahmad Qureshi are stated to have transferred their immovable property situated within the State of Jammu and Kashmir through gift in favour of Dr. Aziz Ahmad Qureshi who was nephew of Dr. Wazir Ahmad Qureshi. Late Dr. Aziz Ahmad predecessor in the interests of petitioners approached Custodian Evacuee Property Kashmir for confirmation of the gift of immovable properties of late Dr. Wazir Ahmad Qureshi on the strength of a document dated 8th Sept. 1975 said to be executed by Mst. Mahmooda Begum and Tanveer Ahmad widow and son respectively of Dr. Wazir Ahmad Qureshi. The document on its receipt was presented before the Collector Srinagar, who made an endorsement of it being duly stamped by charging stamp duty in accordance with the provisions of Jammu and Kashmir Stamp Act. Custodian Evacuee Property rejected application of Dr. Aziz Ahmad for confirmation in terms of Section 25 of the Evancee Administration of Property Act vide order dated 29-1 -1979. During the pendency of proceedings before the Custodian, Dr. Aziz Ahmad died and present petitioners were brought on record as his legal heirs and successors in interests. Custodian Evacuee Property rejected the application primarily on the grounds that the document sought to be confirmed is a deed of special power of attorney and the same cannot be confirmed under Section 25 of the Act, the stipulations in the document are self contradictory. The document is only a photo copy of the deed and therefore, not admissible, there is no proof that Mst. Mahmooda Begum and Tanveer Ahmad, the executants of document are the only legal heirs of late Dr. Wazir Ahmad Qureshi, the owner of the property and that the document does not confer any right in favour of petitioners, the legal heirs of Dr. Aziz Ahmad Qureshi, hence have no right to property of late Dr. Wazir Ahmad Qureshi. These findings of the Custodian were assailed before the Custodian General by filing an appeal who dismissed the same holding that the document is a hotch potch of special power of attorney and gift deed thus cannot be acted upon under law. It was further held by the Custodian General that the heirship of Dr. Wazir Ahmad Qureshi has not been settled unless it is established that Mst. Mahmooda and Tanveer Ahmad were the only legal heirs of Dr. Late Wazir Ahmad Qureshi. Further findings of the Custodian General are that even if the document confers any right in favour of Dr. Aziz Ahmad, after his death his legal heirs are not entitled to any right under the document in question. It is this order which has been called in question in the present petition. Mr. Z. A. Shah, learned counsel appearing for the petitioners has challenged the order passed by the Custodian General on the ground that authorities below have wrongly construed the document. The documents is in two parts, the first part relate to authorization given to Dr. Aziz Ahmad to do certain acts on behalf of the owners of the property (Evacuee) whereas, the second part deals with the transfer of rights in favour of late Dr. Aziz Ahmad, the predecessor in interest of the petitioners. His further contention is that the document is to be read as a whole and only an harmonious construction of the document is permissible to find out the true nature and purport of the same. He has also argued that the document recognizes an earlier transfer by way of gift as per clear stipulation contained in para 6 of the document and oral gift is permissible under Mohammadan Law. Custodian was required to confirm the transaction of gift, but he has failed to exercise the power and the Jurisdiction vested in him under law. It is also stated on behalf of the petitioners that there was no dispute of heirship of deceased Dr. Wazir Ahmad Qureshi, the Evacuee and in any case the Custodian or the Custodian General were reqired to adjudicate upon this question for purposes of passing order in terms of Section 25.

(3.) Mr. Bala, appearing on behalf of the respondents has filed counter affidavit in opposition to the writ petition wherein order impugned in the petition has been defended on various grounds. It is stated that the petitioners have failed to establish the essentials of a gift and valid ground for confirmation. Original document has not been produced nor its executed proved. The application for confirmation has not been made within the prescribed time. The possession of the property is with the custodian and therefore, there was no question of execution of gift without possession. The document in question cannot be construed as a gift deed. It has also not been proved that the executants of the documents were the legal heirs and only successors of late Dr. Wazir Ahmad Qureshi. Rejection of the petition is also sought on the ground that an alternate adequate remedy by way of revision under Section 30-A of the Jammu and Kashmir Evacuee (Administration of Property) Act is available to the petitioners.