K.L. Gosain, J.
1. This if an appeal against the order of Shri Onkar Nath. Sub Judge 1st Class, Kai-thal, dated 25-1-1956, holding that he had no jurisdiction to entertain the suit in question and returning the plaint for presentation to a proper Court. The facts as alleged in the plaint are as under. A firm styled as Messrs. Beliram-Satnarain carried, on business of timber merchants some time before the partition of the country in 1947. The partners of the said firm were us below : Sat Narain plaintiff to the extent of one-half; Hari Ram defendant to the extent of one-fourth; and Kundan son of Hussaini to the extent of one-fourth.
Kundan son of Hussaini was a muslim and was murdered in India on 12-10-47 and the post mortem of his body was made at Kaithal on 14-10-1947. The aforesaid partnership dissolved on account of the death of Kundan; and on accounts being gone into, a sum of Rs. 500/11/- was found due to the deceased and was deposited by the plaintiff in the treasury on 12-7-1949. The firm was later, assessed to income-tax and was required to pay Rs. 4712/3/- and one-fourth of the same, i. e., Rs. 1,178/-/9 was due to the firm from Kundan.
On 11-6-1951 the Custodian recovered from the plaintiff a sum of Rs. 3,795 as the calculated profits falling to the share of Kundan in the aforesaid partnership. The plaintiff was not given any opportunity to prove that the aforesaid sum was not due as profits to Kundan and the Custodian by becoming a Judge in his own cause arrived at the aforesaid imaginary figure and with a view to realise the same proceeded to attach the plaintiff's property. The plaintiff brought the present suit against the Custodian on the aforesaid allegations for the recovery of a sum of Rs. 5,750/- detailed below :
Rs. 3,795/- illegally recovered from him by the Custodian;
Rs. l,178/-/9 one-fourth share of income-tax levied against the firm; and
Rs. 776/15/3 interest on the aforesaid amount.
Plaintiff claimed that he was entitled to recover the aforesaid sum and that Hari Ram partner had no right or interest in the same. Hari Ram was made a party to the suit, but he did not contest the same.
2. The Custodian filed a written statement urging inter alia that the civil Court had no jurisdiction to entertain the suit. This objection was given effect to by the trial Court which returned the plaint for presentation to a Court having jurisdiction in the matter. It was found that section 46 of the Administration of Evacuee Property Act barred the jurisdictionof the civil Court and the matter in question couldonly be determined by the Custodian, Aggrievedagainst the aforesaid order the plaintiff has come upto this Court in first appeal and the only point thatfalls for decision in the same is whether a civil courthas jurisdiction to entertain the suit. Section 46 ofthe Administration of Evacuee Property Act reads asunder --
'46. Jurisdiction of Civil Courts barred in certain matters. -- Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall have jurisdiction -
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(b) * * * * *(c) to question the legality of any action taken by the Custodian-General or the Custodian under the Act; or
d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine.'
Obviously the provisions of clause (a) are not attracted to the facts of this case because of the reason that the civil Court is not asked in the present suit to determine whether or not any particular property is an evacuee property. The learned counsel for the, Custodian relies only on clauses (c) and (d) of the section as barring the jurisdiction of the civil Court.
3. Now clause (c) of Section 46 bars the jurisdiction of the civil Court only to the extent that a civil Court is not entitled to question the legality of any action taken by the Custodian-General or the Custodian under the Act. In order to attract the applicability of this clause it must be shown that the Custodian-General ox the Custodian have taken an action under the Act and the suit in question aims at impugning the legality of that action. The words 'under the Act' are of great significance and can only be interpreted to mean 'as sanctioned or authorised by the Act''. If the Custodian-General or Custodian take an action which is not sanctioned or authorised by the Act, but which they merely purport to take as one under the Act, the civil Court is perfectly entitled to question the legality of the same.
A civil Court can certainly examine whether the action of the Custodian-General or the Custodian, the legality of which is impugned before the Court, is- one which was sanctioned or authorised by the Act, and if the Court comes to the conclusion that it was authorised, it will have no more jurisdiction in the matter. If, however, the Court comes to the conclusion that the action impugned was not sanctioned or authorised by the Act, it will have every jurisdiction to question the legality of the said action, and the mere fact that the Custodian-General or the Custodian have purported to act under the Act would not, in any way, bar the jurisdiction of the Court to question the legality of the same.
4. Clause (d) of Section 46 bars the jurisdiction of the civil Court to a very limited extent. The only bar created by this clause is that a civil Court will not entertain a suit respecting any matter which the Custodian-General or the Custodian is empowered by or under the Act to determine. The words 'under this Act' as used in this clause can again be interpreted only as meaning 'sanctioned or authorised by this Act'. The civil Court can obviously examine whether the matter over which it is asked to adjudicate is the one which the Custodian-General or the Custodian is empowered by or under the Administration of Evacuee Property Act to determine.
Once the civil Court comes to the conclusion that the matter is of the type stated above, the civil Court would have no jurisdiction to adjudicate on the said matter. But if the civil Court is of the opinion that the Custodian-General or the Custodian are not empowered by or under the Act to determine that matter, it would have jurisdiction to adjudicate on the matter. The mere fact that the Custodian-General or the Custodian think that they are empowered by or under the Act to determine the matter will not, in any case, stand in the way of the civil Court exercising jurisdiction in respect of the same. In the light of the above interpretation of the section it hast now to be seen whether Section 46 of the Administration of Evacuee Property Act bars the jurisdiction of the civil Courts in the present suit.
5. Now, the present suit involved decision on two separate matters. The first related to the recovery of Rs. 1,178/-/9 as Kundan's one-fourth share of the income-tax paid by the firm. There is nothing in the Administration of Evacuee Property Act which provides for a decision of this matter being given by the Custodian-General or the Custodian. Admittedly, no decision has been given by any of them on this point. The case relating to the recovery of this amount does not, therefore, fall either under clause (c) or under clause (d), of Section 46 of the Act.
6. With regard to the second item of Rs. 3,795/, the Custodian claimed this amount on the ground that on rendition of the partnership accounts this amount would be due to him as being one-fourth share of profits of Kundan son of Hussaini, I really fail to understand how the Custodian was authorised to go into the accounts of the partnership and to arrive at an imaginary figure of profits due to One of the partners. He was not authorised by any provision of law to call upon the partners to render him any accounts. He had no power, under the Act to call for the accounts or to investigate what profits will be due to any particular partner.
Section 48 of the Act as it stood at the relevant time, i.e., in 1951 did not vest the Custodian with any authority of making an inquiry of this type. It is urged on behalf of the respondent that the section was amended in 1956 at first by Section 13 of Ordinance VI of 1956 and then by Act XCI of 1956 and that the said amendments vested powers in the Custodian for holding an investigation into the fact whether any particular amount was due to the Custodian or not. The contention is that the amendments made in the section must be treated as retrospective and the Custodian must be deemed to have acted under the powers given by the amendments. In the first place, the amendments made, in 1956 cannot be held, to have any retrospective effect. Neither the Ordi-nance nor the Act effecting the said amendments in Section 48 provides for a retrospective operation being given to the same.
It is specifically provided in Sub-section (2) of Section 1 of Act XCI of 1956 that the amendments shall be deemed to have come into force on 22-10-1956, and no further retrospective effect beyond the aforesaid date can be given to the provisions of the Act. The amendments affected the vested rights of the litigants and are not merely procedural ones, and the well-known rule of interpretation of statutes that a legislation enacted at any particular time is ordinarily prospective and not retrospective applies with full force to the present case. Even assuming that the amendments operated retrospectively the present case is not, in my opinion, covered even by the amendments. Sub-section (1) of Section 48 in its amended form provides as under --
'(1) Any sum due to the State Government or to the Custodian under the provisions of this Act may be recovered as if it were an arrear of land revenue.'
The pre-requisite of this sub-section is that a deter-mined sum is payable to the Government or the Custodian and it is only this sum which is made recoverable as arrears of land revenue. Sub-section (2) provides as under :
'(2) For the purpose of Sub-section (1) the decision of the Custodian as to the sum due to the State Government or to the Custodian shall be final.'
This sub-section evidently relates to a sum which is claimed to be recoverable under Sub-section (1) of this section. That sum must clearly be a definite and ascertained amount and when it is sought to be recovered a question may be raised that it is not due and may then be decided by the Custodian. The two sub-sections read together make it quite clear that they refer to cases where a definite ascertained amount already known to the Custodian is sought to be recovered by him. They do not authorise the Custodian who is not aware of the state of accounts of any partnership to launch an inquiry into the accounts and then try to find out if any sum at all is due to him and what that sum is.
The Act does not authorise him, in any way, to call upon the partners of an evacuee firm to render accounts of the partnership to him. The proceedings under Sub-section (2) can only arise if the Custodian begins to recover an amount under Sub-section (1). Till the Custodian has started proceedings under sub-section (1), the provisions of Sub-section (2) cannot obviously come into play.
In my opinion, the entire proceedings taken by the Custodian in going into the accounts of the partnership and ex parte assessing the amount due to Kundan and in recovering the said amount from the plaintiff by use of or the threat of the use of the coercive machinery of law were ultra vires and without jurisdiction. It was held in Custodian-General of Evacuee Property, New Delhi v. Harnam Singh, 58 Pun LR 490 : (AIR 1957 Punj 58), that the Custodian bad no jurisdiction at all to launch inquiries into the liabilities of third parties. I am in respectful agreement with the view taken in the aforesaid case.
7. Mr. Faqir Chand Mital further contends that the evidence furnished by the post mortem report on the dead body of Kundan and also the one furnished by the statements of the plaintiff and of Bashir Ahmad, son of the deceased Kundan, fully proved that Kundan had been murdered in India on 12-10-1947 and that at no point of time he ever left India. Ho urges that the aforesaid evidence, unre-butted as it stands on the record, shows that Kundan was not an evacuee and that the property belonging to him could not possibly vest in the Custodian. I do not, however, feel the necessity of going into this point, as in my opinion, the action of the Custodian in recovering the estimated profits of the share of Kundan in the partnership was altogether ultra vires and the civil Court obviously has jurisdiction to entertain the present suit.
8. For the reasons given above, I accept theappeal, set aside the order passed by the trial Courtand remand the case for decision on merits. Thecosts in this Court will abide the final event. Theparties have been directed to appeal in the trial Courton 22-4-1959.