V.R. Newaskar, J.
1. This is a petition under Articles 226 and 227 of the Constitution of India for the issue of a writ of certiorari against the Asstt. Custodian and Custodian of Evacuee Property, Indore. The circumstances leading to the petition are as follows:
1a. One Mohd. Khan s/o Karim Khan of Neemuch owned agricultural lands in four villages Chouth-Kheda, Raatdia, Jamunia and Kana-Kheda. He also owned a house No. 7 in Kotmohalla Neemuch. Besides this property he also had mortgagee rights with respect to certain lands in the village Khatria and he was in possession of them as a usufructuary mortgagee. Said Mohammad Khan had a son Asgar Hussain. Mohammad Khan by his deed dated 5-8-1935 effected 'Hiba' (Gift) of most of his property including lands in the aforesaid villages and the house in Kotmoholla Neemuch in favour of his son Asgar Hussain.
The hiba-nama thus made by him was registered the same day. Mobammad Khan provided by means of a deed dated 4-1-1946 that he would give half the income out of the land in which he had mortgagee rights and which was situated in Mouja Raatdia as also land bearing Khata No. 646/ 9 (1) of Mouja Chouthkheda to his second wife Hamidunnisa as long as he was alive and that subsequent to his death she would be entitled to realise income therefrom for her maintenance and on her death those lands would pass on to whosoever be her heir.
This document too was registered. Subsequent to this deed Asgar Hussain met with his death due to drowning. Hamidunnisa the second wife of Mohammad Khan migrated to Pakistan. Consequently the Asst. Custodian of Evacuee Property, Neemuch started proceedings under Section 7 of the Administration of Evacuee Property Act and issued notice to Mohammad Khan why the property of Hamidunnisa be not declared as evacuee property.
2. Mohammad Khan objected and contested the title of Hamidunnisa to the land covered by the deed of 1946.
3. The Assistant Custodian Evacuee Property, Neemuch on being satisfied that the proprietary interest in any property had not vested in Hamidunnisa closed the case by his order dated 2-2-1952. The matter was however again taken in hand by the Asstt. Custodian on representation probably made by the department that Hamidunnisa had certain property which had been given to her as her dower debt (Mehr) and that she had interest in certain other property under the deed dated 4-1-1946 which had been duly registered.
On perusal of the Kazi's register and the document dated 4-1-1946 the Assistant Custodian of Evacuee Property was satisfied that none of the properties in Mohammad Khan's possession had been given in Mehr by him and the deed dated 4-1-1946 conferred only right of maintenance upon her after Mohammad Khan's death. He, consequently, again confirmed the order dated 2-2-1953 on 29-4-1952. Subsequent to this Mohammad Khan is said to have cancelled the deed dated 4-1-1946 which he had executed in favour of bis wife and published a notice to this effect and later executed a will on 18-3-1953 by which he gave his house No. 7 and land adjoining it to his daughter-in-law Sairabai and on her death to her two daughters Hajara find Amina both sharing equally. Mohammad Khan died a few days after the last mentioned document. Sairabai thereupon got her name entered on house No. 7 in the Municipal register and paid Municipal tax for the Samvat years 2009 and 2010 on 7-7-1954 and 14-7-1954 respectively.
However on 4-4-1955 the Assistant Custodian of Evacuee Property again issued a notice in the name of Chhotibai (Hamidunnisa) wife of Mohammad Khan why she should not be declared as evacuee and the house No. 7 as Evacuee Property. Service upon Hamidunnisa, who had migrated to Pakistan was effected by substituted service. The date fixed for hearing was 3-6-1955. Sairabai on coming to know of this fact due to pasting of the notice on the house, attended the office of the Assistant Custodian and objected to these proceedings by her application dated 8-6-1955 contending that the matter had been already closed during the life-time of Mohammad Khan. She submitted a second application on 31-8-1955 stating that she and her two daughters were staying in the house in their own right under the deed of gift made by Mohammad Khan in favour of her husband in 1935. She was examined on oath by the Assistant Custodian on 31-8-1955 who by his order dated 29-11-1955 overruled her objections and held that after the death of Mohammad Khan House No. 7 mentioned in the notice under Section 7 of the Administration of Evacuee Property Act dated 4-4-1955 and other lands owned by Mohammad Khan had vested in his widow Hamidunnisa who bid migrated to Pakistan. He accordingly directed the taking over of possession of the same. Sairabai preferred appeal against this decision but the same was dismissed on 31-8-1956.
4. The present petition was thereupon filed by Sairabai for herself and as the next friend of her two minor daughters. The petitioner raised many grounds but the only grounds sought to be pressed by her learned counsel are that:
(1) No notice had been issued to the petitioner Under Section 7 of the Administration of Evacuee Property Act.
(2) The land was not the subject matter of notice.
(3) The house No. 7 had been included in the deed of gift datpd 5-8-1935 made in favour of Asgar Hussain and whatever interest Mohammad Khan had acquired through his son had been bequeathed in favour of the petitioners under a will dated 18-3-1953.
(4) Mr. S. S. Joshi who acted as Asst. Custodian when he passed the order directing issue of notice under Section 7 and later passed order under that Section, was not duly appointed as such.
5. In the return submitted on behalf of the opponents it was contended that the petition had been submitted after undue delay: that an adequate and effective remedy was available to the petitioner independent of the present petition; that the deed of gift dated 4-1-1946 said to have been made by deceased Mohammad Khan in favour of his son Asgar Hussain was invalid as no possession had been delivered to the son in consequence of the alleged gift; that the alleged will made by Mohammad Khan in favour of the petitioners D/-18-3-1953 was invalid and ineffective as the document had not been registered; that earlier order dated 29-4-1952 could not operate as res judicata and that fresh proceedings could have been started after the death of Mohammad Khan and lastly that the will even if it be held valid could not affect more than 1/3rd of the property.
Notice under Section 7 of the Administration of Evacuee Property Act, it was pointed out, had been issued to Chhotibai and the proceedings could not be said to be without jurisdiction on the ground that similar notice had not been served upon the petitioners particularly in view of the fact that petitioner No. 1 Sairabai bad knowledge of the proceedings and contested the same. It was further contended that whatever defect there might have been in the matter of service of notice is removed by reason of the opportunity afforded to the petitioner for hearing and even for adducing additional evidence. The notice under Section 7 issued in the name of Chhotibai covered all the properties of deceased Mohammad Khan. Lastly it was contended that no fundamental right of the Petitioner was affected and the petition therefore ought to be dismissed.
6. In view of the respective contentions of the parties questions which arise for consideration are:
(1) Whether the petition was submitted after undue delay justifying refusal of any aid to the petitioner on the ground of laches ?
(2) Whether there was proper notice under Section 7 of the Administration of Evacuee Property Act?
(3) Whether the notice issued in the name of Chhotibai wife of Mohammad Khan covered entire property or only the house No. 7 in Kotmohalla Neemuch? If so whether the orders of the Authorities under the Act could affect any property except the said house if at all?
(4) Whether House No. 7 was included in the properties gifted by Mohammad Khan to his son Asgar Hussain under the deed dated 5-8-1935, it so is the deed of gift bad? Can this question be agitated when a finding has been given by the Authorities under the Administration of Evacuee Property Act ?
(5) Does the deed dated 18-3-1953 executed by Mohammad Khan in favour of the petitioner require registration and is invalid for that reason? If not can it pass any interest in excess of one third?
(6) Was Mr. Joshi who acted as Asstt. Custodian at the material time validly appointed?
(7) What is the effect of earlier orders dated 2-2-1952 and 29-4-1952?
7. It appears clear by reference to para 7 of the return that it is the interest which devolved upon Hamidunnisa alias Chhotibai on the death of Mohammad Khan which is sought to be declared as evacuee property and not any interest which might have been acquired by her earlier. It is therefore unnecessary to consider the propriety of proceedings undertaken subsequent to Mohammad Khan's death in view of the earlier orders dated 2-2-1952 and 29-4-1952. This disposes of the last question.
8. As regards the penultimate question No. 6 Mr. Khan did not press the point in view of the decision of the Division Bench, of this Court in connection with several cases including Civil Miscellaneous Cases Nos. 33, 41, etc. of 1956. It was held in those cases, with reference to the appointment of the same officer at the relevant period that the validity of his appointment as also of his acts and orders cannot be assailed in view of the Madhya Pradesh Administration of Evacuee Property Act No. 11 of 1958 which had been reserved for consideration of the President and had received his assent as required by Article 254(2) of the Constitution.
9. As regards the question of delay it may bo said here that the delay in this case is not considerable. The order of the Custodian in appeal was passed on 31-8-1956 and the petition was submitted on 25-1-1957. Having regard to the fact that the petitioner No. 1 is an illiterate woman and interest of minors is involved the delay is not such as to justify our refusal to exercise powers under Article 226 of the Constitution.
10. This brings to questions Nos. 2 to 5 which have a material bearing in this case.
11. As to question No. 2 it is not disputed on behalf of the Custodian that the only notice under Section 7 issued in the name of Chhotibai wife of Mohammad Khan and no notice was issued either to the petitioners or any other heirs of the deceased. The validity of such a notice will therefore depend upon the consideration whether either of the three petitioners had an interest in the property left by Mohammad Khan. This in its turn will involve consideration as to the effect of the deed of gift dated 5-8-1935 and the will dated 18-3-1953 made by Mohammad Khan in favour ot his son Asgar Hussain, and the petitioners respectively and the right which the petitioners have under the general principles of Muhammadan Law with reference to what might be the property of Mohammad Khan.
12. Now as regards the gift the finding of the Asstt. Custodian is that Mohammad Khan had never divested himself of the property covered by the gift but had continued to be in possession and that for that reason the gift could not be held as valid under the Muhammadan Law. This finding which was confirmed by the Custodian in appeal being based on facts cannot be assailed in these proceedings. The learned Asstt. Custodian further holds that as Asgar Hussain died during the life time of Mohammad Khan no interest could devolve upon the heirs of the former in respect of the estate of the latter. As regards the will Ex. P/7 the learned Asstt. Custodian did not deal with that document while the Custodian held it to be of little weight due to its non-registration. Now the learned Asstt. Custodian assumes that none of the petitioners could claim any interest either under the will dated 18-3-1953 or under the general principles of Muhammadan Law. There is no finding that the document dated 18-3-1953 is not proved. It is rejected because it in not registered. This is evidently erroneous. Wills are not compulsorily registrable.
13. In the second place minors Hazra and Amina being the grand-daughters of deceased Mohammad Khan are entitled to be ranged as sharers with the widow of Mohammad Khan.
14. There is therefore an erroneous assumption as to absence of any right in the petitioner since the petitioners are shown to have interest, notice to them under Section 7 was essential and in its absence the proceedings become invalid and without jurisdiction.
15. Now as regards the third question the notice annexure 'F' mentioned only the house in Kot Moholla as the property till then discovered to be the property of the evacuee and the notice therefore can well be assumed to be with reference to that property although in the printed form the expression 'all his property' was mentioned and the word 'his' was scored and in its place 'your' was substituted.
16. The contention of Mr. Khan is that in these circumstances property other than the house in Kot Moholla could not have been declared as evacuee property. The learned Counsel relied upon the decision of the Allahabad High Court reported in Azizun Nisa v. Assistant Custodian, (S) AIR 1957 All 561. In that case, in the notice issued to the evacuee Khatoonbai, she was called upon to show cause why she should not be declared as evacuee and all her property as evacuee property. It was observed by Desai and Beg JJ. :
'The defect of not mentioning the property sought to be declared as evacuee property was, however, a substantial defect. It might have been only a technical defect in the notice served upon Khatoon Bibi but was a substantial defect in the, notice served upon other persons who were entitled to know which property was under the threat of being dealt with as evacuee property. Unless they knew which property was under this threat, they could not file a proper objection and if the notice did not give them an opportunity of filing a proper objection, it was no notice in the eye of law. In Mohammad Balam Sheikh v. R S. Trivedi, AIR 1955 N. U. C. (Bom) 21, Tendolkar J, stated that the Custodian has to be satisfied that a particular property is evacuee property, that it is not open to him to show generally that the assets of a business are evacuee property without giving a description by which they can be identified and that the law requires that the notification should give sufficient particulars of the property so as to make it possible for any person to identify it.''
17. These observations appear to be in accord with the terms of Section 7 of the Administration of Evacuee Property Act. According to Sub-clause (1) of Section 7 the formation of opinion by the Custodian, notice to interested persons in the prescribed manner, holding of inquiry and declaration as to its evacuee character are all matters with reference to specific property. This is further clear having regard to the expression 'any such property' in Sub-clause (1) and the requirement under Sub-clause (3) to notify the property declared by the Custodian to be evacuee property.
The words 'from time to time' in sub-clause (3) also suggest that the declaration has to be with reference to specific property and not vaguely as 'all the property'. Although too detailed description of the property declared as evacuee property may not be necessary, it would be sufficient to identify it. Whenever fresh property or fresh title with reference to any property is discovered later, it is competent for the Custodian to start fresh proceedings and principle of res judicata in the strict sense does not apply to the proceedings under Section 7: Vide Khwaja Khaliluddin v. Custodian Evacuee Property, Hyderabad State, AIR 1954 Hyd 167. I would therefore hold that inasmuch as the notice referred to only the house No. 7 in Kot Moholla any other property could not have been declared or notified as evacuee property without, fresh notice under Section 7 after starting fresh proceedings which could not have been done in this case and the orders under Section 7 passed by the Asstt. Custodian and the Custodian could not affect the properties except the said house subject of course to other grounds.
18. As regards question No. 4 the deed of gift dated 5-8-1935 does no doubt refer to house in Kot Mohalla as having been gifted by Mohammad Khan to his son Asgar Hussain but the learned Asstt, Custodian discards this deed of gift on the ground that there had been no delivery of possession by Mohammad Khan to his son and even subsequent to the deed of gift he continued to be in possession. The deed is no doubt registered but such registration cannot dispense with one of the essential requirement of a valid gilt namely delivery of possession, Vide Ismal v. Ramji, ILR 23 Bom 682 and Yahazullah Sahib v. Boyapati Nagayya, ILR 30 Mad 519. Thus the view taken by the Assistant Custodian on his estimate of facts was a competent view and the finding cannot be touched in this petition under Article 226 of the Constitution. But even assuming that the gift-deed is void the petitioners 2 and 3 as the daughters of the predeceased son of Mohammad Khan in the absence of any son or daughter are entitled to claim through Mohammad Khan leaving out of course 1/8th share of the widow.
19. As regards question No. 5 the will dated 18-3-1953 does not require registration. According to the terms of this will of Mohammad Khan Ex. E/1 the property was to pass to Sairabai on the death of Mohammad Khan. If that is the position the will will operate the same being not in favour of an heir. It therefore seems that the claim based on the will of Mohammad Khan to the house No. 7 in Kot Moholla has been rejected on a ground legally untenable and involves an error apparent on the face of the record. The learned Asst. Custodian ignored it though he referred to it and the learned Custodian rejects the claim on its basis in these terms:
'But the document is not a registered document and consequently does not carry much weight.'
20. Thus having regard to the fact that notice to the petitioners who were interested in the property of Mohammad Khan, both under the general law of inheritance amongst the Mohammadans and also because of the will of Mohammad Khan in favour of the petitioner Sairabai, had not been given as required under Section 7 of the Administration of Evacuee Property Act, the proceedings are invalid and without jurisdiction and cannot affect their property. Moreover the orders in question are bad because they seek to declare the property other than the one indicated in the notice under Section 7 of the Act.
21. For these reasons the petition ought to Succeed and the orders of the Assistant Custodian dated 29-11-1955 and that of Custodian in appeal dated 31-8-1956 ought to be quashed. Ordered accordingly. The petitioners are entitled to their costs. Counsel's fees shall be taxed at Rs. 50/-.