Raghubar Dayal, J.
1. Ibrahim and Khurshed, brothers, sons of Paneh Ali, Isak and Baggu, sonsof Jawaye, owned Khasra No. 26, measuring 20 bighas, at village Alipore, TehsilHanumangarh. They migrated to Pakistan. The Assistant Custodian of EvacueeProperty, Hanumangarh, issued notice under s. 7(1) of the Administration ofEvacuee Property Act, 1950 (Act XXXI of 1950) hereinafter called the Act, tothese persons and also to Hazari, son of Chuni and Magha, son of Kana, statingtherein that Ibrahim and others had gone to Pakistan and that Hazari and Maghawere in illegal possession of the land. They were all required to show causewhy the land be not declared evacuee property. The notice was affixed at aconspicuous place in village Alipore. The notice could not be served on Hazariand Magha as they had died long before the issue of notice in 1955.
2. No objections were filed and on April 7, 1955 the Assistant Custodiandeclared Ibrahim, Khurshed, Isak and Baggu evacuees and the aforesaid propertyevacuee property. Bhanwar Lal, son of Hazari and Rati Ram, grandson of Magha,filed a petition under Art. 226 of the Constitution in the Rajasthan High Courtfor the quashing of the order dated April 7, 1955 and for restraining theRegional Settlement Commissioner, Jaipur, the Managing Officer of acquiredEvacuee Property, Ganganagar, the Tehsildar, Hanumangarh, from interfering withtheir possession over the property declared to be evacuee property. Theyalleged that one Paneh Mohamad, father of Ibrahim and Khurshed, had mortgagedthis property to Hazari and Magha in 1931, that the mortgagees had been inpossession of the property, that they did not get any notice of the proceedingstaken by the Assistant Custodian and were informed of his order in 1959 bytheir tenants in the land in suit when the allottees of the land were takingsteps to recover possession. The writ petition was dismissed by the High Courtwhich held that the issue of notice to Hazari and Magha was sufficientcompliance with the requirements of sub-s. (1) of s. 7 of the Act as theCustodian had not to make any preliminary enquiry about the persons who mightbe interested in the property of the alleged evacuee. It is against this orderthat Bhanwar Lal and Rati Ram have filed this appeal by special leave.
3. Section 7(1) of the Act reads :
'Where the Custodian is of opinion that anyproperty is evacuee property within the meaning of this Act, he may, aftercausing notice thereof to be given in such manner as may be prescribed to thepersons interested, and after holding such inquiry into the matter as thecircumstances of the case permit, pass an order declaring any such property tobe evacuee property.'
4. The Custodian can form his opinion about any property having becomeevacuee property on the basis of information available to him. It has been soheld in Abdul Hakim Khan v. The Regional Settlement Commissioner (1) : 1SCR531 . He can issue notice to the persons interested also on the basisof information available to him. He is not expected to hold a general inquiryof the persons interested in the alleged evacuee property. In the present caseit appears that the village records about the land in suit which isagricultural, recorded the names of Hazari and Magha as mortgagees and that theAssistant Custodian could consider them to be the persons interested. He couldhave had no information whether these mortgagees who resided at some otherplace were alive or not. He complied with the requirements of sub-s. (1) of s.7 to give a notice to Hazari and Magha. The notice however was ineffective andnot good as Hazari and Magha had died long before. The question then ariseswhether the further Proceedings on the basis of this notice could affect the, interests of the mortgagees.
5. The interest of Ibrahim and others, the evacuees of the property in suitwhich was under mortgage, consisted of the equity of redemption in theproperty. It is this interest of theirs which could be declared evacueeproperty and the order of the Assistant Custodian dated April 7, 1955,declaring the aforesaid property to be evacuee property, really amounts to anorder declaring the right of Ibrahim and other in the equity of redemptionevacuee property. The order cannot affect the mortgagee rights as Ibrahim andothers had no interest in the mortgagee rights.
6. It follows that the impugned order does not affect the rights of theappellants if any as mortgagees. The non-issue of the notice to the appellantstherefore is of no consequence as the order subsequently passed without theissue of the notice to them does not affect their interest.
7. Reference in this connection may again be made to Abdul Hakim Khan's case(1) : 1SCR531 . In that case a number of persons had shares incertain property. Some of them migrated to Pakistan. The notice under s. 7(1)was issued to one of those persons who had not migrated of Pakistan. TheCustodian declared the property of those who had migrated to be evacueeproperty and specified their share in the property. The other co-shares exceptthe one to whom the notice was issued, challenged the validity of the orderpassed under s. 11 of the Evacuee Interest (Separation) Act, 1951 (Act LXIV of1951), vesting the entire property in the Custodian. This Court held that theobjectors could not challenge the validity of the order under s. 7 of the Actas it did not affect their rights in the property. Similarly it can be saidthat the appellants in this case cannot challenge the validity of theproceedings on the notice issued by the Assistant Custodian and the order ofthe Assistant Custodian declaring the property in suit to be evacuee propertywhen that order does not affect the mortgagee rights of the appellants.
8. By virtue of the order dated April 7, 1955, this rights of the evacueesin the property in suit vest in the Custodian and those rights, as statedearlier, consist of the rights of equity of redemption. This means that theCustodian holds the property subject to the mortgagee rights, if any, of theappellants.
9. It has been conceded by Mr. Prem appearing for the respondents, that noaction has been taken under the Evacuee Interest (Separation) Act, 1951.Section 10 of this Act empowers the competent officer to take all necessarymeasures for the purpose of separating the interest of the evacuees from thoseof the claimants in any composite property which, inter alia, means anyproperty which or in which an interest has been declared to be evacuee propertyor has vested in the Custodian under the Act and in which the interest of theevacuee is subject to mortgage in any form in favour of a person not being anevacuee. It is only after such separation of the interests of the evacuee andthe claimants in the composite property that the evacuee interest gets vestedin the Custodian free from all encumbrances. It follows that so long as properaction under the Evacuee interest Separation Act is not taken to separate theinterest of the evacuees and the appellants who claim to be mortgagees, theCustodian cannot take any action against the appellants or their tenants whoare said to be in possession of the property in suit.
10. The result then is that we dismiss the appeal and confirm the order ofthe Court below with respect to the validity of the order of the AssistantCustodian dated April 7, 1955. We allow the appeal with respect to the prayerfor restraining the Regional Settlement Commissioner and others, respondents 1to 3, from interfering with the possession of the appellants or their tenants.We order the parties to bear their own costs throughout.
11. Appeal partly allowed.