1. Shop No. 142 (bearing Municipal No. 253) of Ward No. 7 at Burhanpur was owned by a firm of 'Messrs. Haji Karim Noor Mohammad' carrying on business at Itwari Bazar, Nagpur. Two partners of the firm, namely, Abdul Sattar Mohamed and Haii Ibrahim Abdul Shakoor, were doing business at Karachi since 1946. They continued to remain at Karachi even after the partition of India. These two partners were treated as 'evacuees' The Assistant Custodian of Evacuee property Burhanur therefore, took possession of the abovesaid pro-perty and referred the matter to the Competent Officer, Nagpur, for separation of the evacuees' interest in the said firm.
The Competent Officer thereupon issued to the firm a notice; under Section 6 of the Evacuee Interest (Separation) Act, 1951, in response to which the plaintiffs, who are the remaining partners, preferred their claims. The objection taken by the plaintiffs in response to the notice was that as the property was not declared 'evacuee property', it did not vest in the Custodian. The Assistant Custodian, Burhanpur, however, overruled the objection on the ground that the property had automatically vested in the Custodian, immediately on the partition of India and no declaration was necessary. The Assistant Custodian also directed the plaintiff to pay rent at Rs. 40/- per month from 15-8-1947 to 27-4-1955 for the period during which the properly remained in possession of the firm. The Assistant. Custodian also gave the property to defendant No 4 on rent of Rs. 40/- per month.
Against this order the plaintiffs had preferred a revision before the Additional Custodian, Nagpur, which was dismissed by his order dated 2-1-1957. Another revision preferred before the Custodian General. Delhi, was also dismissed by the said authority on 26-10-1959. Thereafter, the plaintiffs served on the defendants necessarv notices under Section 80 of the Code of Civil Procedure and filed the present suit for possession of the property and also for mesne profits. The trial Court held in favour of the plaintiffs and passed a decree as prayed for. The Union of India, the Regional settlement, Commissioner and the Assistant Custodian, Evacuee Property, have, therefore, preferred this appeal.
2. The plea of the plaintiffs that Haji Ibrahim Abdul Shakoor and Abdul Sattar Mohammad had started separate business at Karachi and that the firm 'Messrs Haji Karim Noor Mohammad was dissolved and that a new firm of the same name with the plaintiffs only as the partners was started was negatived by the trial Court and it was held that the said two partners had interest in the partnership assets of the firm. Before us also no material was placed to enable us to take a different view. We therefore confirm that finding of the trial Court.
The trial Court, however, following the decisions in Azizun Nisa v. Asst. Custodian AIR 1957 All 561, Darshan La1 v. R. L. Aggarwal, AIR 1959 Punj 96, and Rubab Bai v. Asst. Custodian. Evacuee Property. Indore, AIR 1962 Madh Pra 38 held that though under the C. P. and Berar Administration of Evacuee Property Ordinance. 1949 (No. III of 1949 the property had vested in the Custodian, the repeal of the Ordinance by the Administration of a Evacuee Property Ordinance. 1949 (No. XXVII of 1949). promulgated bv the Central Government, had the effect of rendering the vesting ineffective and inasmuch as no action was taken under Section 7 of the Ordinance No. XXVII of 1949, it could not be held that the property had vested in the Custodian at any time, The decision of the Supreme Court in Azimunnissa v. Deputy Custodian, Evacuee Properties Deoria, AIR 1961 SC 365 (1) was distinguished by the trial Court. The main question, therefore, that arises before us is as to whether the trial Court was right in holding that the property had not vested in Custodian.
3. In exercise of the powers conferred by Section 83 of the Government of India Act, 1935. the Governor of the Central Provinces and Berar was pleased to issue the Central Provinces and Berar Ordinance No. III of 1949 styled as 'Central Provinces and Berar Administration of Evacuee Property Ordinance. 1949'. Section 5 of the said Ordinance provides that subject to the por-visions of the Ordinance, all evacuee property situated in a province shall vest in the Custodian for that purpose.
Section 6(1) then provides that the Custodian may, from time to time, notify, either bv publication in the Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under the Ordinance. The notification is to be issued of the vested property which has vested in the Custodian by operation of Section 5(1) of the Ordinance. The vesting is thus not dependent on any notification being issued by the Custodian. Sub-section (2) of Section 6 further makes it clear that where after the vesting of any evacuee property in the Custodian any person is in possession of any such property, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or any person duly authorised by him in this behalf.
From this provision it is clear that the plaintiffs, who claimed to have remained in possession of the property, were deemed to have held the property on behalf of the Custodian and were bound to surrender the possession on demand by the Custodian. Section 2 of the Ordinance defines 'evacuee', 'evacuee property' 'property' and 'unauthorised person'. If all these definitions are read together, no manner of doubt is left that the two partners, namely. Haji Ibrahim Abdul Shakoor and Abdul Sattar Mohammad when they continued to live at Karachi after the partition of India, became 'evacuees' and the interest held by them in the partnership property became 'evacuee property'.
The State Ordinance No. III of 1949 was repealed by the Administration of Evacuee Property Ordinance, 1949 (No. XXVII of 1949). promulgated by the Governor-General. Section 7 of the Ordinance provided that where the Custodian was of opinion that any property was evacuee propertv within the meaning of the Ordinance, he might, after causing notice thereof to be given in such manner as may be prescribed to the personsinterested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. Subsection (1) of Section 8 then provided that any property declared to be evacuee property under Section 7 would vest in the Custodian. Sub-section (2) of Section 8 made a further provision to the effect that where immediately before the commencement of the Ordinance any evacuee property in a province had vested in any person exercising the powers of a Custodian under any law repealed by the Ordinance, the evacuee property would on the commencement of the Ordinance, be deemed to have vested in the Custodian appointed or deemed to have been appointed for the province under the Ordinance and would continue to so vest.
It is thus clear that under the Central Ordinance, if any property had already vested in the Custodian by operation of any law on the day the Ordinance was promulgated the vesting was deemed to be under the Ordinance and that in such a case no steps under Section 7 to declare the property as evacuee property were necessary. The combined effect of Ordinance No. III of 1949 of the Central Provinces and Berar Ordinance No. XXVII of 1949, therefore, is that the property, which automatically vested under Ordinance No. III of 1949, was continued to be so vested under Ordinance No. XXVII of 1949.
4. In the Allahabad Case of, AIR 1957 All 561, that Court, however, held that the U. P. Administration of Evacuee Property Ordinance (1 of 1949) (which was similar to Ordinance No. III of 1949, issued by the Governor of the Central Provinces and Berar was ultra vires the 1935-Act. It was, therefore, held that there could not be any automatic vesting of the property and the same could not have been continued under Section 8(2) of the Central Ordinance No. 27 of 1949.
It was, in these circumstances, that a further reference was made to Section 55 of the Ordinance which provides for repeal of any corresponding law in operation in any province on the day the Central Ordinance was promulgated. Sub-section (3) of Sec. 55 provides that notwithstanding the repeal by the Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or any action taken in the exercise of any power conferred by that Ordinance or law, shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced. Their Lordships of the Allahabad High Court thoughtthat as with respect to automatic vesting of the property under the repealed Ordinance no step was required to be taken it could not be said that any step, which was taken, could be deemed to have been continued under Sub-section (3) of Section 55. The vesting provision being ultra vires and no steps having been taken under the repealed law, there was nothing on which the provisions of Sub-section (3) of Section 55 could fasten upon'. It was, therefore, held by their Lordships of the Allahabad High Court that for a property to be declared as evacuee property it was necessary to take steps under Section 7.
At this stage, it may be pointed out that Ordinance No. 27 of 1949 was replaced by the Administration of Evacuee Property Act, 1950 (Act No. 31 of 1950) which contains similar provisions. In this Act, Section 7A was inserted by the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954), which provided that notwithstanding anything contained in the Act, no propertly shall be declared to be evacuee property on or after the 7th day of May, 1954. It was, therefore, held in the Allahabad Case that inasmuch as no action was taken under Section 7 of the Act or the Ordinance before 7th day of May 1954, the property which might be evacuee property, could not be treated as evacuee property; nor could any action be taken by the Custodian with respect to such property. Similar view was taken by the Punjab High Court in AIR 1959 Punj 96 (Supra) and by this Court in AIR 1962 Madh Pra 38 (supra). From these decisions it is clear that there could not be any automatic vesting of the property, the Provincial Acts being ultra vires of the Government of India Act, 1935, and that no property regarding which steps were not taken under Section 7 of the Act upto 7th May 1954 could vest in the Custodian, as no declaration under Section 7 could be issued after that date.
5. By the Administration of Evacuee Property (Amendment) Act, 1960 (Act 1 of 1960), in Section 8 of the Administration of Evacuee Property Act, 1950, Sub-section (2-A) was inserted. The said sub-section is to the following effect:
'(2-A) Without prejudice to the generality of the provisions contained in subsection (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment, decree or order of any court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian orany other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.'
This sub-section was inserted to cure the defect in the matter of vesting of the property deemed to have vested under provincial legislations, the validity of which was doubted by the Allahabad High Court and other Courts, referred to above. This sub-section came for consideration before the Supreme Court in AIR 1961 SC 365 (supra). Their Lordships in paragraph 20 observed:
'The word 'purport' has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable; Dicker v. Angerstein (1876) 3 Ch. D 600. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so.'
Their Lordships then considered the provisions of the U. P. Ordinance No. 1 of 1949 and the Central Ordinance No. XXVII of 1949 and referred to the decision of the Allahabad High Court in AIR 1957 All 561 (supra) and observed:
'We think it unnecessary to deciders to whether the deeming provision of Section 8(2) of the Act or of Ordinance XXVII of 1949 was sufficient to give validity to the vesting. Section 8(2A) as introduced into the Act, in our opinion, makes the vesting valid, because it gives validity to the vesting which purported to have taken place as a result of Ordinance XXVII of 1949 even though it was apparently so and was not so in law, because that is what 'purport' implies.'
Their Lordships further observed:
'The effect of Section 8(2A) is that what purported to have vested under Section 8(2) of Ordinance XXVII of 1949 and which is to be deemed to be vested under Section 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court, shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under Section 8(2) of Ordinance XXVII of 1949 or Section 8(2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any court in regard to the vesting effective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property.'
From this decision it is quite clear that the effect of insertion of Section 8(2A), which was given retrospective effect, wasto validate the automatic vesting under the provincial laws which were declared ultra vires by some of the High Courts, including this High Court. The decision of the Allahabad High Court and that of the Punjab High Court were pronounced before the amendment of Section 8, referred to above. The decision of this Court in AIR 1962 Madh. Pra 38 was no doubt pronounced after the amendment of Section 8. In that case it was observed in paragraph 7 that the provisions of Section 8(2A) are introduced by the Amending Act No. I of 1960 with a view to cure possible defects in the matter of vesting under certain Provincial or State Laws because it was felt that the validity of such Provincial or State Laws was questionable and it is for this purpose that the words 'purports to have vested' have been introduced in the amended provision, contained in Section 8(2A) of the Administration of Evacuee Property Act.
But it was further observed in paragraph 8 that the Evacuee Interest (Separation) Act of 1951 will not have the effect of converting a property which could not be evacuee property into a composite property by reason of its own operation apart from the provisions of Act No. 31 of 1950; and as in that case the property was not declared as vested and had not vested in the Custodian under Act No. 31 of 1950, the provisions of Section 11 of the Evacuee Interest (Separation) Act, therefore, could not have the effect of depriving the petitioners of their right in the said property. In the abovesaid decision, though specific reference was made to Section 8(2A), it was, somehow or the other held that the property could not be treated as vested in the Custodian unless action under Section 7 of the Administration of Evacuee Property Act, 1950 (Act 31 of 1950) was taken.
This decision was pronounced just after the decision of the Supreme Court; but, unfortunately, that decision was not brought to the notice of this Court. In view of the decision of the Supreme Court, we must hold that the decision of this Court in Rubab Bai's Case, AIR 1962 Madh Pra 38 is no longer binding. For this reason we do not feel the necessity of referring the case to a larger Bench. In our opinion, the trial Court was in error in distinguishing the decision of the Supreme Court and not applying it to the facts of the case.
6. For the aforesaid reasons, our view is that the combined effect of the C. P. and Berar Ordinance No. XXVII of 1949 and Act No. 31 of 1950 as amended upto 1960 was that the property in question automatically vested in the Custodian and that the Custodian was entitled to take possession of the property.
We also hold that for that very reason the action taken by the competent authority for separation of the evacuees' interest under the Evacuee Interest (Separation) Act, 1951, is also not open to any challenge. Once it is held that the Custodian as also the com-petent officer acted within jurisdiction, itmust follow that all subsequent steps takenby them are not open to challenge beforeCivil Court. In this view of the matter, itmust be held that the plaintiffs are not entitled to any relief and that their suit mustfail. We, therefore, allow the appeal, setaside the decree of the trial Court and direct that the suit be dismissed with coststhroughout. A decree be drawn up accordingly.