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2003 DIGILAW 217 (JK)

Gulrez Qurashi v. Custodian General

2003-07-19

PERMOD KOHLI

body2003
Aggrieved of an order dated 28th July 1979 passed by 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 Qurashi. One Dr. Wazir Ahmad Qurashi 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 Qurashi situated in the State of Jammu and Kashmir were declared as evecuee 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, Teh; Jammu or Akhnoor. 2. Dr. Wazir Ahmad Qurashi is stated to be dead and survived by his widow Mahmooda Begum and son Tanveer Ahmad. These legal heirs of Dr. Wazir Ahmad Qurashi are stated to have transferred their immovable property situated within the State of Jammu and Kashmir through gift in favour of Dr. Aziz Ahmad Qurashi who was nephew of Dr. Wazir Ahmad Qurashi. 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 Qurashi 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 Qurashi. 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 Evacuee 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 application of Dr. Aziz Ahmad for confirmation in terms of Section 25 of the Evacuee 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 dead 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 Qurashi, the owner of the property and the document does not confer any right in favour of petitioners, the legal heirs of Dr. Aziz Ahmad Qurashi, hence have no right to property of late Dr. Wazir Ahmad Qurashi. 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 Qurashi has not been settled unless it is established that Mst. Mahmooda and Tanveer Ahmad were the only legal heirs of Dr. Late Wazir Ahmad Qurashi. 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 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. The documents is in two parts, the first part relate 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 him in under law. It is also stated on behalf of the petitioners that there was no dispute of heirship of deceased Dr. Wazir Ahmad Qurashi, the Evacuee and in any case the Custodian or the Custodian General were required 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 Qurashi. Rejection of the petition is also sought on the ground that an alternate adeqaute remedy by way of revision under Section 30-A of the Jammu and Kashmir Evacuee (Administration of Property) Act is available to the petitioners. 4. Petitioners filed rejoinder affidavit claiming that the document has been validly executed by legal heirs of Dr. Wazir Ahmad Qurashi. Rejection of the petition is also sought on the ground that an alternate adeqaute remedy by way of revision under Section 30-A of the Jammu and Kashmir Evacuee (Administration of Property) Act is available to the petitioners. 4. Petitioners filed rejoinder affidavit claiming that the document has been validly executed by legal heirs of Dr. Wazir Ahmad Qurashi. If the document is not construed as a gift deed, it acknowledges a gift already made in favour of Dr. Aziz Ahmad. Under Mohammedan Law a valid gift can be made orally without execution of the document in this regard. Objections raised in the counter affidavit are sought to be rebutted on the ground that the validity of the orders impugned in the writ petition can only be examined on the basis of reasoning recorded therein and not on any fresh reasoning or submissions made in the affidavit filed in the Writ court. 5. One Nazir Ahmad Shah S/o Ab. Ahad Shah also intervened in the case. He also filed an affidavit in opposition to the Writ petition. He has challenged the right of the petitioners on the ground that the document is not registered one and therefore, no gift can be made without it being registered under the provisions of Jammu and Kashmir Registration Act and Jammu and Kashmir Transfer of Property Act as said document is compulsorily registerable one. He has also stated that the status of Mst. Mahmooda Begum and Tanveer Ahmad being widow and son of Late Dr. Wazir Ahmad Qurashi is not established. The petitioners cannot claim any right over the property on the strength of the document which itself is nullity, it does not satisfy the essentials of gift which also include delivery of possession and acceptance of the same by the donee. He claims his right of intervention on the ground that he is lessee of land measuring 13 kanals and 15 marlas situated at village Brein. 6. I have heard learned counsel namely Mr. Z. A. Shah, for the petitioners, Mr. G.J.Bala, for the respondents and Mr. M. A. Qayoom, for the intervener. 7. Relevant provisions of The Evacuees (Administration of Property) Act 2006 and rules framed there under i.e, Section 25, Section 30 and Rule 17 of the Rules framed under the Act are reproduced hereunder: "25. Restriction on transfer by evacuees. Z. A. Shah, for the petitioners, Mr. G.J.Bala, for the respondents and Mr. M. A. Qayoom, for the intervener. 7. Relevant provisions of The Evacuees (Administration of Property) Act 2006 and rules framed there under i.e, Section 25, Section 30 and Rule 17 of the Rules framed under the Act are reproduced hereunder: "25. Restriction on transfer by evacuees. -- (1) No transfer of any right or interest in any evacuee property, made in any manner whatsoever by or on behalf of an evacuee after such (date) as may be specified in this behalf by the Government by notification in the Jammu and Kashmir Gazette, shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian... 30: Appeal, review and revision, -- (1) Any person aggrieved by an order made under section 8, section 14, or, section 25 may prefer an appeal- (a) ... (b) to the Custodian General where the original or appellate order has been passed by the Custodian, an Additional Custodian or an Authorized Deputy Custodian; Rule 17 of the Rules framed under the Act. 17. Procedure for confirmation of transfer under section 25 -- (1) An application for confirmation under sub-section 2 of section 25 shall contain the following particulars, namely; (a) Boundaries, Municipal number, if any, and location of the property transferred and also Khasra number in case of agricultural land. (b) Particulars of transfer sought to be confirmed including the dates of the transfer and registration, if any, the addresses of the parties and consideration paid or deferred. (c) Particulars of previous transfers in respect of the property, if any." (d) The name and the address of the person in possession of the property transferred and the capacity in which such person is in possession. (2) The application shall be verified in the manner prescribed in rule 15 of Order VI of C.P.C. 1977, for the verification of pleadings and shall be accompanied by a copy of the transfer deed in question and also a schedule containing the particulars of any other property owned, possessed or transferred by the transferor after 14th August, 1947. (2) The application shall be verified in the manner prescribed in rule 15 of Order VI of C.P.C. 1977, for the verification of pleadings and shall be accompanied by a copy of the transfer deed in question and also a schedule containing the particulars of any other property owned, possessed or transferred by the transferor after 14th August, 1947. (3) The application shall be presented by the transferor or the transfree personally or by his duly authorized agent or pleader to Deputy Custodian or Assistant Custodian having jurisdiction and shall bear a court fee stamp as prescribed under rule 28. (4) The Deputy or Assistant Custodian shall cause a notice in Form No. 6 to be served on the transferor or transferee, as the case may be, and may further cause a similar notice to be served on the person in possession and on any other person whom the Deputy Custodian or Assistant Custodian having jurisdiction thinks to be interested in or likely to be affected by the result of the application. (5) A public notice shall also be published in a local daily newspaper at the expense of the applicant. (6) If any application referred to in sub-rule (1), is pending on the date of the publication of these rules, the applicant shall within thirty days from the date of publication of the rules or on the order of the Custodian within the period specfied therein mend his application so as to bring it in conformity with the rules and shall also make up the deficiency in court fee stamp within the period aforesaid: provided that the Custodian on sufficient cause being shown may extend the period prescribed by this sub-rule. (7) In case the applicant fails to amend the application and to make up the deficiency in court fee, in accordance with sub rule (6), the Custodian shall dismiss the application. (8) After the notices are served in accordance with provisions of sub-rules (4) and (5), the Custodian shall proceed to determine the application after a summary inquiry. (9) If a party making an application, fails to appear on the date fixed when the case is called for hearing, the Custodian may dismiss the application for default or proceed to decide the application on the materials before him in the absence of the party. (9) If a party making an application, fails to appear on the date fixed when the case is called for hearing, the Custodian may dismiss the application for default or proceed to decide the application on the materials before him in the absence of the party. (I) Where the application is dismissed under sub-rule (9) the applicant shall be precluded from making a fresh application on the same facts with respect to the same property. But he may apply within thirty days from the date of the order of dismissal or of the knowledge of such dismissal for an order to set aside the dismissal and the Custodian, if he is satisfied that there was sufficient cause for non-appearance when the case was called for hearing, shall make an order seting aside the order of dismissal upon such terms as he thinks fit and shall fix a date for proceeding with the application. (II) The Custodian shall refuse to confirm any transfer, which he has reasonable ground to believe to be colourable or Benami." 8. The document subject matter of discussion in the present petition is also reproduced as under:- "Special Power of Attorney and Deed of Gift with transfer of ownership etc. We Mahmuda Begum, widow of Dr. Wazir Ahmad, Qurashi and Tanveer Ahmad son of Dr. Wazir Ahmad Qurashi (late) residents of at present Sunderabad Road, Preme Gali, Lahore do hereby appoint Dr. Aziz Ahmad son of Dr. Ali Ahmad Qurashi, read fraternal nephew of late Dr. Qazir Ahmad Qurashi resident of Jawaharnagar near police Post, Srinagar, Kashmir as our Special Attorney in our names and on our behalf to do, act, posses and sell our following property left in the Jammu and Kashmir State;- He is also authorized by us: 1. To appoint any advocate, vakil, Barrister at law or agent in our names and on our behalf. 2. To file written statements, applications, affidavits, and receive the documents from the concerned offices. 3. To file and receive back documents. 4. To file cases or suits in connection with the above noted matter in our names and on our behalf. 5. To do any other lawful acts deeds things in connection with the above noted matter. 6. 2. To file written statements, applications, affidavits, and receive the documents from the concerned offices. 3. To file and receive back documents. 4. To file cases or suits in connection with the above noted matter in our names and on our behalf. 5. To do any other lawful acts deeds things in connection with the above noted matter. 6. Since the said attorney is our only legal heir in the Jammu and Kashmir State the property mentioned below is already gifted out by us to him under the law prevalent in our country and its possession is handed over to him by us. 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, Teh. Jammu or Akhnoor. This also constitute a deed of transfer of Ownership and possession in gift in heirship to him. In witness whereof we have signed this Special Attorney on this 8th day of September, 1976 at Lahore (Pakistan). Executants Sd (Dr. Aziz Ahmad) Special Attorney" 9. With a view to examine the validity of the impugned order it is necessary to consider the grounds on which Custodian/Custodian General has declined the claim of the petitioners for confirmation. Custodian Evacuee Property vide its order dated 20.1.1979 rejected the application of Dr. Aziz Ahmad Qurashi on the grounds, specified hereinafter; 1. The document is a deed of Special Power of Attorney which needs no confirmation under Section 25 of the Act. 2. Stipulations contained in the document are self contradictory. 3. Only photo copy of the document is placed on record which is inadmissible in evidence. 4. No proof of Mst. Mahmooda Begum and Tanveer Ahmad being only legal heirs of Dr. Wazir Ahmad Qurashi has not been placed on record. Custodian General who passed the order impugned in the petition in appeal upholding the order of the Custodian Evacuee Property recorded following reasons for passing of the order:- 1. Document is a hotch potch of Special Power of attorney and a gift deed which cannot be acted upon. 2. Heirship of Dr. Wazir Ahmad Qurashi has not been established. 3. Even if document confers any right upon late Aziz Ahmad Qurashi, petitioners are not entitled to any benefit after his death. Document is a hotch potch of Special Power of attorney and a gift deed which cannot be acted upon. 2. Heirship of Dr. Wazir Ahmad Qurashi has not been established. 3. Even if document confers any right upon late Aziz Ahmad Qurashi, petitioners are not entitled to any benefit after his death. In respect to the grounds which are common to both the orders viz the nature of the document and the question of heirship of Dr. Wazir Ahmad, the authorities have failed to appreciate the document and construe the same to give proper meaning and interpretation to the same. The perusal of the document reveal that the document is in two parts. Clause 1 to 5 of the document authorize Dr. Aziz Ahmad to perform certain acts specified therein on behalf of the executants in respect to the properties mentioned in the document. Clause 6 of the document however, specifically deal with the question of transfer of rights in the property subject matter of present lis in favour of Aziz Ahmad. From the perusal of clause 6 of the document quoted herein above, what is reflected is that the executants acknowledge of an earlier gift of the property made in favour of Dr. Aziz Ahmad, the attorney and beneficiary under the document. Relevant portion of clause 6 in the document is the property mentioned below is already gifted out by us to him under the law prevalent in our country and its possession is handed over to him by us. This clause categorically speaks of a gift having been made in past i.e, prior to the date of the execution of the document. The properties in respect to which gift is said to have been made have also been noticed in the document. Whenever the meaning and true import of any instrument is to be construed what is relevant is the intention of the person executing the document. The intention can be gathered by giving plain meaning to the terms of document. A document may be in singular form relating to one single transaction or may be pulularistic in nature i.e, combination of morethan one transactions. The intention of the executant is also to be infered from the text of the document and the purpose for which it has been brought into existence. A document may be in singular form relating to one single transaction or may be pulularistic in nature i.e, combination of morethan one transactions. The intention of the executant is also to be infered from the text of the document and the purpose for which it has been brought into existence. Another important proposition for interpratation of document is that the document is to be taken as a whole with a view to give the correct meaning to it & for this purpose a harmonious construction alone is permissible. The document in question on the one hand speaks of a gift made in past and on the other hand authorizes the donee to deal with the property and to do all things necessary to make the transaction of gift effective. There does not appear to be any contradiction in the document. Both the authorities i.e, Custodian and Custodian General have failed to interpret the document in its true spirit and refuse to acknowledge the same treating the said document as ineffective and in operative. The Apex Court considered the question of interpretation of document in (1999) 4 SCC 545, para 16 and (1997).2 SCC 255, para 3, which are reproduced as under: (1999) 4 SCC 545, 16. 16. .......(2) "The intention of the parties is to be gathered from the document itself. Mainly, the intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that the document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties." (1997) 2 SCC 255, para 3 3. It is now well-settled legal position that a document has to be read harmoniously as a whole giving effect to all the clauses contained in the document which manifest the intention of the persons who execute the document. 11. The only question that needs determination is whether the document itself is a deed of transfer and cannot be acted upon without proper stamp duty and registration or it is only a memorandum as regards the transfer of rights in property is concerned. From the text of the document it becomes apparent that the document itself does not effect any transfer of property. From the text of the document it becomes apparent that the document itself does not effect any transfer of property. It only acknowledges some gift already made by the executants in favour of the attorney namely Aziz Ahmad Qurashi as is evident from para 6 thereto.Now the other relevant and related question is whether any gift was made earlier and the gift so made is valid under law for purposes of conferment of any right upon Dr. Aziz Ahmad Qurashi. No reference of any instrument of gift has been made in the document nor any such instrument has been produced or relied upon by the parties. What is stated by learned counsel for the petitioner is that in absence of any instrument having been executed, it refers to an oral gift. Parties to the transaction indicated in the document are Mohammandan. According to the Personal Mohammandan Law oral gift is as good and valid as made by any instrument. Personal Law in respect to such a transaction has also been saved and protected under the provisions of Sri Partab Laws Consolidation Act. This question came up for considertion before the Full Bench of this court in case of Ghulam Mohammad Sofi v. Mohammad Sidiq dareel and others reported in AIR 1974 J&K 59. Para 7 and 14, which are reproduced as under: Para No. 7 According to the pre-amended law section 123 affected the mode of making of the gifts under the Hindu, Buddhists and Muslim law alike. In other words Section 123 abrogated the rule relating to gifts made under Hindu, Muslim and Buddhists law. That this section was interpreted so appears from the decision of a Division Bench of this Court reported as J&K Law Reporter volume II, 2000 Bikrami. After 2003 Section 129 was substituted by the present section as reproduced above. It seems that the words" or to affect any rule of Mohammadan Law" have been deliberately substituted in order to exclude the operation of Chapter VII in regard to gifts made by persons professing Muslim faith and made under that law. This has indeed made all the difference in the case of gifts made under any rule of Mohammadan Law and under any other law. This has indeed made all the difference in the case of gifts made under any rule of Mohammadan Law and under any other law. Thus if all the formalities as prescribed by the Mohammadan law relating to making of gifts are satisfied i.e., there is a declaration by the donor of his intention to make a gift, there is acceptance of the gift by the donee, and delivry of possession of the property is complete, the gift is valid notwithstanding the fact that it is made orally without any instrument. In this view of mine I am fortified by the observations made in AIR 1934 Oudh 163 at p/165, AIR 1927 Cal 199; AIR 1937 ALL 25; 35 Ind Cas 14=(AIR 1916 ALL 351) AIR 1936 ALL 600. Para No. 14 The ratio of the above cited authorities is therefore in favour of the proposition that an oral gift made under the Muslim law would not be affected by Section 123 of the Transfer of Property Act and the gift if it has otherwise all the attributes of a valid gift under the Muslim Law would not become invalid because there is no instrument in writing and registered. Therefore, the answer to the question formulated would be in the negative i.e, that Sections 123 and 129 of the Transfer of Property Act do not supersede the Muslim law on matters relating to making of oral gifts, that it is not essential that there should be a registered instrument as required by Sections 123 and 138 of the Transfer of Property Act in such cases. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed." 12. The Apex Court also considered this question in 1996 SCC (6) 444, Para No. 1 and opined that the oral gift is permissible under Mohammedan Law and no instrument for giving effect to a gift is required. Para No. 1 is reproduced as under. Para No. 1 "1. Before the trial court it was admitted that the suit land measuring 41.5 decimals was homestead land and several houses of phoos (thatch) and tiles were constructed thereon, which were in occupation of the plaintiff-respondent since long, even prior to the gift Ex.1 executed in her favour by her father-in-law. Since the parties were Mohammadans, an oral gift by a father-in-law to his daughter-in-law was permissible but here was one which was written but not registered. It could not, in any event, be said that in the presence thereof there was no oral gift. Significantly, it was followed by possession making the gift complete and that is the finding of all the three courts below." 13. In view of this settled proposition of law that oral gift is permissible amongst Muslims and the document in question acknowledges making of a gift in past, the order impugned rejecting the prayer for passing order of confirmation under Section 25 of the Act on the ground that the document is nullity is not sustainable. The document which deals with making of the gift and at the same time authorize the donee to do certain acts is valid in law and cannot be ignored. The findings of the authorities in this regard are liable to be set aside. Before dealing with other grounds contained in the impugned orders, it becomes relevant to examine the scope and object of Section 25. Section 25 has already been quoted hereinabove. It provides that no transfer of any right or interest in any evacuee property shall be effected unless it is confirmed by the Custodian. It speaks of confirmation of the act of transfer and not any deed or document. The act of transfer may be oral or by virtue of an instrument or deed. Rule 17 of the rules framed under the Act prescribe procedure for confirmation of transfer under Section 25. Clause B of Rule 17 further provide that the application to be made under Section 25 should contain the particulars of the transfer sought to be confirmed including the deeds of transfer and registration if any. Rule 17 of the rules framed under the Act prescribe procedure for confirmation of transfer under Section 25. Clause B of Rule 17 further provide that the application to be made under Section 25 should contain the particulars of the transfer sought to be confirmed including the deeds of transfer and registration if any. A conjoint reading of both the provisions makes it abundantly clear that the Custodian while exercising powers under Section 25 is required to confirm the act of transfer be it through the medium of a document or otherwise. It is not necessary that the transfer in respect to the Evacuee Property should be by a written instrument duly executed and registered as is evidence from the language of Section 25 and Rule 17, which prescribes the procedure. Therefore, the Custodian in the present case could not have refused to confirm the act of transfer particularly when oral gift of the property is permissible on the ground that the document in question does not constitute a deed of transfer or the same is nullity on any other ground. The Custodian General has also failed to properly and legally construe the true purport and scope of Section 25 of the Act. The other ground on which the plea of petitioners for confirmation is rejected is want of proof regarding heirship of Dr. Wazir Ahmad Qurashi, the Evacuee. If the Custodian/Custodian General had any doubt regarding the status of Mahmooda Begum and Tanveer Ahmad as the only legal heirs of late Dr. Wazir Ahmad, it was obligatory upon these authorities to have provided an opportunity to the applicants to establish this fact by leading evidence. From the orders passed by the Custodian and Custodian General it does not appear that the petitioners or for that matter their predecessor in interest was allowed to establish this fact. Since no opportunity was provided to the petitioners, the authorities below were not entitled to reject the application on this ground. Similarly the ground that original document has not been produced cannot be accepted for the simple reason that the applicants should have been asked to produced the original document or prove the photo copy by leading secondary evidence. Before deciding the application Custodian is under mandate of law to determine the issues after summary enquiry as provided under Section 25(3) and Rule 17(8). Before deciding the application Custodian is under mandate of law to determine the issues after summary enquiry as provided under Section 25(3) and Rule 17(8). Order of the Custodian 28.7.1979 do not reveal any such enquiry having been conducted. This itself is sufficient to vitiate the order of Custodian. 14. Another important issue that needs attention is whether respondents are entitled to supplement any ground to defend the impugned order. Legality and validity of the order passed by an Administrative or quasi judicial authority can only be judged on the touch stone of reasons recorded in the order subject matter of judicial scrutiny and on no other ground. This view has been judicially acknowledged by the Apex Court in (1978) 1 SCC 405, para 8, which is reproduced as under:- Para 8 " The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons as mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the begining may, by the time it becomes to Court on account of a challenge, get validated by aditional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." It be further seen that the Act and Rules framed thereunder has laid down the grounds for rejection of application seeking confirmartion U/s 25. Sub. Sec. 3 of Sec. 25 and Rule 17(11) thus read: Sub. Orders are not like old wine becoming better as they grow older." It be further seen that the Act and Rules framed thereunder has laid down the grounds for rejection of application seeking confirmartion U/s 25. Sub. Sec. 3 of Sec. 25 and Rule 17(11) thus read: Sub. Sec. 3 Section 25 (3) The Custodian shall hold summary inquiry into the application in the prescribed manner, and may reject the application if he is of opinion that- (a) the transaction has not been entered into in good faith or for valuable consideration, or (b) the transaction is prohibited under any law for the time being in force, or (c) the transaction ought not to be confirmed for any other reason". (Rule 17(11) (11) The Custodian shall refuse to confirm any transfer, which he has reasonable ground to believe to be colurable or Benami. 15. From the orders passed by Custodian/Custodian General it becomes apparent that the application has not been rejected on any of specified grounds in Sec. 25(3) and rule 17(11). At the most it can be urged that Sec. 25(3)(c) empowers Custodian to reject the application for any other reason. Even if, the Custodian has jurisdiction to refuse confirmation on any other reason not specified under law, such reason must be legal valid and rationable. It is under these circumstances arguments of learned counsels appearing for respondent and intervener are required to be considered. Looking from every angle at the touch stone of reasons recorded in the orders impugned the same is liable to be quashed. 16. Now coming to the arguments raised by the learned counsel for the respondent/intervener. M/s M. A. Qayoom and Mr. Bala has contended that petitioner has not established the essentials of gift. They further stated that since the possession of the property was with the Custodian, there is no question of making of gift without possesion. I do not appreciate this contention, firstly that the authorities below have rejected the application for confirmation on the ground that the essentials of gift have not been estanlished. If the authorities had any doubt regarding the making of gift it was imperative for the Custodian to have asked the applicants to establish the making of gift, that having not been done, this plea cannot be permitted to be raised in the writ petition. If the authorities had any doubt regarding the making of gift it was imperative for the Custodian to have asked the applicants to establish the making of gift, that having not been done, this plea cannot be permitted to be raised in the writ petition. As regard the question of making gift without actual physical possession is concerned, the argument of Mr. Bala though appears to be attractive but is fallacious in nature. Possession can be delievered physically or symbolically i.e, constructive possession if the actual physical possession is with the person other than the doner. If this contention of learned counsel is accepted then for making gift, it is necessary that the possession should be with the doner or donee. Let us take the case where the possession is with the tenant and the owner makes a gift of the property and deliver constructive possession only to the donee such a gift cannot be said to be invalid or lack any essential ingredient of the gift. From the document in question, it becomes apparent that the donee was authorized to take every step to implement the intention of the executant (doner) meaning thereby that donee has been alowed constructive possession and he is authorized to take every steps for taking actual possession. There is another reason why the order passed by the Custodian was not sustainable. Under Sub-Section 5 of the Section 25, the Custodian was under statutory obligation to obtain approval of the Custodian General before making any order.No such approval appears to have been obtained which has rendered his order invalid and without jurisdiction. The last argument of Mr. Bala is that the petitioner had an alternative remedy of filing revision under section 30-A of Evacuee Administration of Property Act. This plea is also not sustainable for the simple reason that this petition is pending since 1985 and cannot be rejected on this ground at this stage. Secondly the powers under Article 226 are much wider though discretionary. In normal circumstances, the writ court should not exercise its discretion were an alternative efficacious remedy is available. The restriction is self imposed. However, with a view to meet the ends of justice the writ court can exercise writ jurisdiction where the order impugned or the action assailed is contrary to law or the writ court is of the opinion that it should exercise its writ jurisdiction. The restriction is self imposed. However, with a view to meet the ends of justice the writ court can exercise writ jurisdiction where the order impugned or the action assailed is contrary to law or the writ court is of the opinion that it should exercise its writ jurisdiction. The authorities below have failed to exercise the jurisdiction vested in them under law on total mis-construction of the document as also the provisions of Section 25 of the Act. In this view of the matter, I reject this contention of the learned counsel for the respondents. 17. I accordingly allow this petition and set aside the order impugned in this petition. As a consequences of quashing of the order, the case is remanded to Custodian Evacuee Property with the direction to pass fresh orders after hearing the parties keeping in view the findings returned by this court hereinabove. The Custodian shall only examine the question whether Mahmooda Begum and Tanveer Ahmad were the only legal heirs of deceased Wazir Ahmad Qurashi, the Evacuee as also whether these persons executed the original document and if the Custodian has any doubt regarding the heirship of Dr. Wazir Ahmad Qurashi or the genuineness of the document, copy thereof he shall provide reasonable opportunity to the petitioners to prove the same by evidence or otherwise.