Skip to content


Custodian General, Evacuee Property, New Delhi and ors. Vs. Shanti Sarup Prabh Dayal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 489 of 1958
Judge
Reported inAIR1961P& H497
ActsEvacuee Interest (Separation) Act, 1951 - Sections 2 and 8(3); Administration of Evacuee Property Act, 1950 - Sections 7, 7(1) and 8(2)
AppellantCustodian General, Evacuee Property, New Delhi and ors.
RespondentShanti Sarup Prabh Dayal
Appellant Advocate Chetan Das Deputy, Adv.-General
Respondent Advocate S.K. Jain, Adv.
DispositionAppeal allowed
Cases ReferredNanu Mal v. Custodian of Evacuee Property. Punjab
Excerpt:
.....will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3. the learned single judge of this court expressed the view that the property in question was not found to he composite property as the requirements of section 7 of the administration of evacuee property act had not been satisfied and, therefore, the properly in question could not be styled as composite property. 153 of 1957, d/. 21-12-1959 (punj) and we endorsed the view expressed by the learned single judge in that case. on behalf of the petitioner it was canvassed that the competent officer as well as the appellate authority were in law competent to decide whether the mortgage in favour of the..........was not found to he composite property as the requirements of section 7 of the administration of evacuee property act had not been satisfied and, therefore, the properly in question could not be styled as composite property. a decision of a learned single judge in darshan lal v. r.l. aggarwal, air 1959 punj 96, was followed.4. section 7 of the administration of evacuee property act runs as under:--'7. notification of evacuee property:-- (1) where the custodian is of opinion that any property is evacuee property within the mean-ing of this act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to.....
Judgment:

Tek Chand, J.

1. This is a Letters Patent Appeal from the judgment of a learned Single Judge allowing writ petition in C.W. 125/1958 made under Article 226 of the Constitution.

2. The facts of this case giving rise to the Petition were as under. Mst. Nowasi, a Muslim woman, mortgaged some agricultural land on 15th May 1947 in favour of Asa Ram, and the latter sold the mortgagee rights to the respondent about five years later. The mortgagor left India for Pakistan and became an evacuee. The Competent Officer acting under section 6 of the Evacuee Interest (Separation) Act of 1951 (No. 64 of 1951) issued notice inviting claims. In accordance with the requirements of this section, Shanti Samp the respondent submitted his claim in the composite property. His claim was resisted by the Custodian.

The Competent Officer held an enquiry as contemplated by Section 8 into the claim and passed an order that the mortgage in question was not valid for want of consideration and necessity and the claim was, therefore, dismissed. The Appellate Officer dismissed the appeal giving rise to the writ petition in this Court. The mortgagor, Mohammad Ali, was a minor when the mortgage was effected by his mother Mst. Nowasi. In view of the minority of Mohammad Ali, the Competent Officer felt called upon to decide whether the mortgage effected by the minor's mother as his guardian was effected for valid necessity.

The Competent Officer expressed the view that there was no evidence proving that the mortgaged land was required for the benefit of the minor. The necessity for the mortgaged land of Rs. 864/- was stated to be purchase of bullocks and the Competent Officer thought that minor was not engaged in cultivation and, further, there was no evidence as to whether the bullocks were in fact purchased. Before the Appellate Officer the point was taken that the Competent Officer could not question the validity of the mortgage as that consideration was beyond his jurisdiction. The Appellate Officer expressed the view that the Competent Officer had jurisdiction in the matter.

3. The learned Single Judge of this Court expressed the view that the property in question was not found to he composite property as the requirements of Section 7 of the Administration of Evacuee Property Act had not been satisfied and, therefore, the properly in question could not be styled as composite property. A decision of a learned Single Judge in Darshan Lal v. R.L. Aggarwal, AIR 1959 Punj 96, was followed.

4. Section 7 of the Administration of Evacuee Property Act runs as under:--

'7. Notification of evacuee property:--

(1) Where the Custodian is of opinion that any property is evacuee property within the mean-ing of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, 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 properly.

(2) Where a notice has been issued under Sub-section (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian, and no person shall be capable of taking any benefit from such transfer or charge except with such leave.

(3) The Custodian shall, from time to time, notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under Sub-section (1).'

This section contemplates the causing of a notice by the Custodian to the persons interested, the holding of an inquiry and the passing of an order declaring any particular property to be evacuee property. ,No doubt the notice as contemplated by Section 7, Sub-section (I), has not been given to the persons interested. The question that is whether omission to comply with the requirements of Section 7(1) disentitles a property from being treated as evacuee property. Had it not been for the provisions of Section 8, the argument raised on behalf of the mortgagee might have been sustainable.

5. Section 8(1)(2) runs as under-

'8. Vesting of evacuee property in the Custodian:--

(1) Any property declared to be evacuee Pro-perty under Section 7 shall be deemed to have vested in the Custodian for the State--

(a) in the case of the property of an evacuee as defined in sub-clause (i) of clause (d) of Section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India;

(b) in the case of the property of an evacuee-as defined in Sub-clause (ii) of Clause (d) of Section 2, from the 15th day of August, 1947, and

(c) in the case of any other property from the date of the notice given under Sub-section (1) of Section 7 in respect thereof.

(2) Where immediately before the commencement of this Act, any property in a state had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest:

Provided that where at the commencement of this Act, there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under Section 8 or Section 30 of the Administration of Evacuee Property Ordinance, 1949 (XII of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of 'evacuee properly' and 'evacuee' contained in Section 2 of this Act had become applicable thereto'.

The effect of this provision is that any other property, apart from that referred to in Section 7, may also be deemed to be evacuee property declared as such within the meaning of the Administration of Evacuee Property Act Section 8 corresponds to Section 4 of the East Punjab Evacuees' (Administration of Property) Act, 1947 (14 of 1947) and Section 5 of the East Punjab Evacuee Property (Administration) Ordinance, 1949 (Ordinance No. 9 of 1949).

6. Composite property is defined in the Evacuee Interest (Separation) Act. Section 2(d)(ii) runs as under--

'2. Definitions.--In this Act, unless the context otherwise requires--

* * * * *

(d) 'composite property' means any property which, or any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950) and --

' * * * *

(ii) In which the interest of the evacuee is subject to mortgage in any form in favour cf a person not being an evacuee; or

* * * * *'

7. I am of the view that apart from the provisions of Section 7, the property in question was to be deemed to be evacuee property under Section 8(2) of the Administration of Evacuee Property Act 1950. This view was expressed by Bishan Narain J. in Gulzar Singh v. Custodian, Evacuee Property, Punjab, Jullundur, Civil Writ No. 525 of 1956, D/- 20-5-1957 (Punj). The appeal was taken to the Letters Patent Bench consisting of the Honourable the Chief Justice and myself L.P.A. No. 153 of 1957, D/. 21-12-1959 (Punj) and we endorsed the view expressed by the learned Single Judge in that case.

8. It is true that in Darshan Lal v. R.L. Aggarwal's case, AIR 1959 Punj 96 Graver J. expressed the view that in those cases of property, of which, no possession is taken, no control assumed by express notification or, no enquiry made, such as that contemplated by Section 7, there is no determination that the particular property is evacuee property. The learned Judge also held that Section 8(2) of Administration of Evacuee Property Act, 1950 (31 of 1950) can have retrospective effect only in such cases in which some positive action had been, taken under the relevant provisions or some effective decision had been given; otherwise the provisions of the Act apply and there would be no vesting unless a notice under Section 7 has been issued and a declaration has been made.

With very great respect for the learned Judge's view I am afraid I cannot persuade myself to accept that contention. The language of Section 8(2), which has been reproduced above, leaves no doubt as to such property being debarred to be evacuee property having been declared as such within the meaning of the Act, An appeal from this order of Groyer J. was taken to the Letters Patent Bench in R. L. Aggarwal v. Darshan Lal Asa Ram, AIR 1960 Punj 612. The appeal was no doubt dismissed by the Letters Patent Bench though on grounds different from those which prevailed with the learned Single Judge.

9. This matter has now been examined by the Supreme Court in Azimunnissa v. Deputy Custodian, Evacuee Properties, District Deoria, AIR, 1961 SC 365- There, inter alia, two questions were raised on behalf of the petitioners: (1) that the property was not composite property within the Separation Act, (2) the shares of three Muslims were not validly declared to be evacuee interest under the various provisions of law and, therefore, the provisions of Separation Act did not apply. The decision of the case mainly depended on the question as to whether property in dispute was composite property.

After dealing with the provisions contained in the relevant Ordinances preceding the Administration of Evacuee Property Act (31 of 1950), their Lordships were pleased to observe that the consequence of Section 8(2) was that property vested under the previous Ordinance, 27 of 1949, was deemed to be vested in the corresponding provisions of the Act. I am, therefore, of the view that even in the absence of the notification contemplated in Section 7(1) of Act No. 31 of 1950, the property in question must be deemed to be evacuee property declared as such within the meaning of the Act. This property must be deemed to have vested in the Custodian. That being the position, it comes within the definition of composite property (under Sction 2(d) (ii) of the Evacuee Interest (Separation) Act).

10. The next question is whether the Competent Officer had the jurisdiction to decide as to the validity of the mortgage on the ground of want of necessity or want of benefit accruing to the minor when his property was mortgaged by his mother as his guardian.

11. Under Sction 5 of the Evacuee Interest (Separation) Act, a Competent Officer shall have jurisdiction to decide any claim relating to any composite property situate within the limits of the local area of his jurisdiction. Under Sction 6 of the Act, for the purpose of determining or separating the evacuee interest in the composite property any Competent Officer having jurisdiction over such properly may proceed to separate the evacuee interest after giving notice to persons to submit claims.

Any person claiming interest in a composite property is required under Section 7 to submit his claim. Sub-section (2) requires that a statement of claim shall be drawn up as far as may be in the form of pleadings under the Code of Civil Procedure, 1908, and it shall include particulars specified in Sub-section (2). Where the claim is made by a mortgagee he is to disclose the principal money and the rate of interest chargeable under the mortgage, payments which have already been made towards the mortgage-debt, the history of the mortgage-debt in so far as it is relevant, determination of the principal money, particulars of the property mortgaged, etc., etc.

Section 8(1) requires the Competent Officer to hold an enquiry on receipt of statement of claim and to pass an order determining the interest of the evacuee and the claimant in the property. Section 8, Sub-section (3), provides that 'if there is any dispute as to whether a liability is a mortgage-debt or not or whether any claim submitted under Section 7 exists, the Competent Officer shall decide such dispute'. The powers of the Competent Officer under Sub-section (3) are plenary on the question whether a liability is mortgage-debt or not.

In other words, it is open to the Competent Officer to determine whether want of necessity or want of benefit in the case of a minor mortgagor vitiates the mortgage or not. Where the person interested in the evacuee property Is the Custodian, or the minor mortgagor himself, the powers of the Competent Officer in this behalf are unrestricted within the provisions of the Act.

12. The argument of the learned counsel on behalf of the respondent is that question? relating to necessity for the mortgage cannot be determined by the Competent Officer. I cannot find any support in this contention from the language of the Act. For this view there is a precedent in a recent decision of a Division Bench in Nanu Mal v. Custodian of Evacuee Property. Punjab, in Civil Writ No. 143 of 1956, D/- 1-8-1958 (Punj). The question for consideration before the Bench was whether the Competent Officer seized of the matter could come to a conclusion that the mortgage in favour of Nanu Mal was not valid.

On behalf of the petitioner it was canvassed that the Competent Officer as well as the Appellate Authority were in law competent to decide whether the mortgage in favour of the petitioner was or was not valid. After considering the provisions of sections 5, 7 and 8 of the Evacuee Interest (Separation) Act and its general scheme we have no doubt that a claim of the kind made by the petitioner is to be determined by the Competent Officer in the first instance and later on by the Appellate Authority. It was held that there was no substance in the contention that the Competent Officer under the Act could only determine the value of the mortgage in favour of the petitioner but for determination of the validity of the mortgage the question could only be determined by a Civil Court. The Bench held that clear jurisdiction had been vested in the officers appointed under the Act to determine all matters in connection with any claim made regarding composite property and, therefore, the Competent Officer and the Appellate Officer acted within the scope of their jurisdiction. The writ petition was, therefore, dismissed. The question before us is similar and nothing urged by the respondent's learned counsel has persuaded us to come to a conclusion different from that arrived at by the Bench in Nanu Mal's case, Civil Writ No. 143 of 1956, D/- 1-8-1958 (Punj).

13. Sitting in Single Bench I had an occasion to examine this matter at considerable length in Sham Singh etc. v. Custodain General etc., Civil Writ No. 775 of 1960 (Punj), and the arguments advanced in this case on behalf of the respondent have not persuaded me to change my view.

14. For the reasons stated above, the decision of the learned Single Judge under appeal deserves to be reversed. In the result, the Letters Patent Appeal is allowed and the Civil Writ No. 125 of 1958 is dismissed. In the circumstances of the case, the parties are left to bear their own costs throughout.

Falshaw, J.

15. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //