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Raja Bhanupratap Singh Vs. Assistant Custodian Evacuee Property U.P. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC245; [1966]1SCR304
ActsAdministration of Evacuee Property Ordinance, 1949; Administration of Evacuee Property Act, 1950 - Sections 10, 10(2) and 56; Administration of Evacuee Property (Amendment) Act, 1951; Administration of Evacuee Property (Amendment) Act, 1956; Administration of Evacuee Property Rules - Rule 22
AppellantRaja Bhanupratap Singh
RespondentAssistant Custodian Evacuee Property U.P.
Excerpt:
property - evacuee property - administration of evacuee property ordinance, 1949, sections 10, 10 (2) and 56 of administration of evacuee property act, 1950, administration of evacuee property (amendment) act, 1951, administration of evacuee property (amendment) act, 1956 and rule 22 administration of evacuee property rules - whether creditor can realise debt due to him from evacuee's property - appellant's judgment debtor migrated to pakistan - property of judgment debtor declared evacuee property under evacuee property act - on assistant custodian general's (acg) request civil judge removed order of attachment against evacuee's property - appeal to high court - high court observed after taking over property by custodian it is not liable to be proceeded against for execution of any..........upon the management of theproperties of the evacuee by virtue of s. 17 of the administration of evacueeproperty act, so long as the property remained vested in the custodian underthe provisions of that act it was not liable to be proceeded against in anymanner whatsoever in execution of any decree or order of any court or otherauthority. 3. on september 27, 1960 the appellant applied to the custodian for an orderunder s. 10(2)(n) of the administration of evacuee property act, 1950,directing that his claim for rs. 1,27,638/2/- under the two decrees in suitsnos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to theestate of nawab ali raza khan. the assistant custodian general, evacueeproperty, u. p. lucknow, exercising the powers of the custodian rejected.....
Judgment:

Shah, J.

1. Rani Manraj Koer obtained money decrees in two suits Nos. 9 of 1932 and42 of 1932 filed by her in the Court of the Subordinate Judge, Lucknow againstNawab Mohammad Ali Khan Qazilbash Zamindar, Aliabad Estate, in Uttar Pradesh.From time to time execution applications were filed by the decree holderagainst the Zamindar, but nothing was recovered. Rani Manraj Koer died onOctober 1, 1941 and the appellant was brought on the record as her heir andlegal representative. Nawab Mohammad Ali Khan Qazilbash also died and fivepersons amongst whom was one Nawab Ali Raza Khan were impleaded as legalrepresentatives in the execution proceedings.

2. In January 1950 Nawab Ali Raza Khan (Talukdar of Aliabad Estate) who wassubstantially the only judgment debtor from whose estate the amounts due wereliable to be recovered, migrated to Pakistan and he was declared an evacueeunder the provisions of the Administration of Evacuee Property Ordinance 27 of1949- which was later replaced by the Administration of Evacuee Property Act 31of 1950. The Custodian of Evacuee Property took possession of the estate of theevacuee and applied to the Civil Judge, Lucknow for removal of attachmentlevied on the estate by the Civil Judge, Bahraich in execution of the decreesat the instance of the appellant. The Civil Judge, Lucknow, by order dated July22, 1950 directed that the 'transfer certificates' issued in the twodecrees be recalled and the papers be consigned to the record. Against theorder passed by the Civil Judge, Lucknow appeals were preferred by theappellant to the High Court at Allahabad. By order dated February 22, 1960 theHigh Court held that after the Custodian entered upon the management of theproperties of the evacuee by virtue of s. 17 of the Administration of EvacueeProperty Act, so long as the property remained vested in the Custodian underthe provisions of that Act it was not liable to be proceeded against in anymanner whatsoever in execution of any decree or order of any court or otherauthority.

3. On September 27, 1960 the appellant applied to the Custodian for an orderunder s. 10(2)(n) of the Administration of Evacuee Property Act, 1950,directing that his claim for Rs. 1,27,638/2/- under the two decrees in suitsNos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to theestate of Nawab Ali Raza Khan. The Assistant Custodian General, EvacueeProperty, U. P. Lucknow, exercising the powers of the Custodian rejected theapplication holding that he had no power to grant relief to the appellant ofthe nature claimed. In exercise of his revisional jurisdiction, the CustodianGeneral Evacuee Property, New Delhi, confirmed the order, and the appellanthas, with special leave, appealed against against that order.

4. The question which falls to be determined in this appeal is, whether theCustodian is entitled to entertain the claim of the holder of a money decreeagainst the evacuee for satisfaction of his dues out of the assets vested inthe Custodian by s. 7 of the Administration of Evacuee Property Act. TheCustodian held that he had no such power, and the Custodian General agreed withhim. Section 10 of the Act deals with the powers and duties of the Custodiangenerally. By sub-s. (1) it is provided :

'Subjected to the provisions of any rules that maybe made in this behalf, the Custodian may take such measures as he considersnecessary or expedient for the purposes of securing, administering, preservingand managing any evacuee property and generally for the purpose of enabling himsatisfactory to discharge any of the duties imposed on him by or under this Actand may, for any such purpose as aforesaid, do all acts and incur all expensesnecessary or incidental thereto.'

5. Sub-section (2) provides :

'Without prejudice to thegenerality of the provisions contained in sub- section (1), the Custodian may,for any of the purposes aforesaid,-

. . . . . . .

(n) pay to the evacuee, or to anymember of his family or to any other person as in the opinion of the Custodianis entitled thereto, any sums of money out of the funds in hispossession.'

6. By sub-s. (2) of s. 10 specific powers and duties of the Custodian aresee out. It illustrates the general powers and duties under sub-s. (1). Theargument that the expression 'any other person' in Clause (n) must beconstrued ejusdem generis with 'evacuee' or 'any member of hisfamily' has, in our judgment, no force. The rule of interpretation ejusdemgeneris applies where a general word follows particular and specific words ofthe same nature as itself : it has no application where there is no genus orcategory indicated by the Legislature. The clause is intended to confer uponthe Custodian power coupled with a duty to pay to the evacuee or to any memberof his family or to any other person who in the opinion of the Custodian isentitled to any sum of money out of the estate of the evacuee. The powers of theCustodian and the duties are undoubtedly to be exercised under sub-s. (2) forthe purposes mentioned in sub-s. (1) i.e. for securing, administering,preserving and managing any evacuee property and generally for the purpose ofenabling him satisfactorily to discharge any of the duties imposed on him. Toascertain the limits upon and extent of those purposes, the position of theCustodian qua the estate of the evacuee vested in him must first be determined.Section 7(1) authorities the Custodian to declare after enquiry any property asevacuee property within the meaning of the Act, and the property so declared isdeemed to vest in the Custodian from the date specified in s. 8. But thevesting of the property in the Custodian is for the purposes of the Act i.e.for administration and management. By the vesting for purposes of the Act theCustodian does not become the owner of the property : he holds it for theevacuee and is bound to administer it in the manner provided by the Act. Theappropriation of the property must depend upon statutory provisions enacted bythe Parliament. By s. 17(1) of the Act as amended by Act 22 of 1951 withretrospective operation it was provided that:

'Save as otherwise provided in this Act no evacueeproperty which has vested or is deemed to have vested in the Custodian underthe provisions of this Act shall, so long as it remains so vested, be liable tobe proceeded against in any manner whatsoever in execution of any decree ororder of any court or other authority, and any attachment or injunction ororder for the appointment of a receiver in respect of any such propertysubsisting on the commencement of the Administration of Evacuee Property(Amendment) Act, 1951, shall cease to have effect on such commencement andshall be deemed to be void.'

7. The second part of the sub-section deals with avoidance of attachment, orinjunction or order for the appointment of a receiver in respect of any evacueeproperty-subsisting on the date of the commencement of the Act of 1951, and thefirst pare interdicts recourse to the evacuee property so long as it remainsvested hi the Custodian, by process of any court or authority for obtainingsatisfaction of any claim against the property. It is clear from the languageof the section that whether the claim be against the evacuee or it is againstthe Custodian arising out of any acts of administration done by him, theevacuee property cannot be attached in execution of any decree or order of anycourt or other authority. The Legislature has thereby completely excluded thejurisdiction of courts and authorities to execute decrees or orders passedagainst the Custodian or the evacuee to proceed against the property vested inthe Custodian. The intention clearly is that the administration shall contitnuefor the purposes of the Act without any interference by the process inexecution of the decrees or orders of courts or other authorities. But it doesnot appear to be the intention of the Legislature that the Custodian should beentitled to collect the property of the evacuee and not be under an obligationto satisfy his debts and obligations. The argument of counsel for the Custodianthat the Custodian is merely to manage the property and is not invested withpower to pay the debts due by the evacuee or to discharge liabilities of theevacuee is not borne out by the terms and the scheme of s, 10. The powersconferred and the duties imposed by s. 10(1) are for the purposes of securing,administering, preserving and managing the evacuee property, and there is noreason to attribute to the Legislature an attempt at tautology by assuming that'administering' is used in the same sense as the expression'managing'. Again sub-s. (2) makes it abundantly clear that thepowers conferred and the duties imposed are not merely incidental to managementas a statutory agent of the evacuee. For instance, upon the Custodian isconferred the power to carry on the business of the evacuee with all thediscretion which the carrying on of the business of the evacuee may necessitate: he is entitled to complete buildings which are required to be completed, tokeep evacuee property in good repair, and to take action as may be necessaryfor the recovery of any debt due to the evacuee : see els. (d), (e) and (i) ofsub-s. (2) of s. 10. Power is also conferred upon the Custodian by Clause (j) toinstitute, defend or continue any legal proceeding in any civil or revenuecourt on behalf of the evacuee : he is given the power to refer disputesbetween the evacuee and any other person to arbitration or to compromise anyclaims, debts or liabilities on behalf of the evacuee. Clause (j) implies thepower and its concomitant duty to satisfy the claim which may be determined inany legal proceeding instituted, defended or continued in any civil or revenuecourt, or awarded against the evacuee, or admitted or undertaken by virtue ofthe compromise. The argument of the Custodian, if accepted, would lead to thesomewhat startling result that a decree or an award made in favour of theevacuee in a proceeding commenced or continued by or against the Custodian maybe enforced 'by the Custodian, but the property of the evacuee remains freefrom all claims, obligations and liabilities of the evacuee, even if decreed bya competent court or undertaken and accepted by him. There is nothing in thestatute which compels us to lend countenance to this inequity. The words usedin Clause (n) empowering the Custodian to pay to 'any other person' anysums of money out of the funds in his possession are not restricted to personswho are members of the family of the evacuee; they include other persons aswell who are entitled to receive money from the evacuee.

8. The decree of a civil or revenue court or an order of any other authorityis, it must be observed, not decisive of the validity or admissibility of theclaim against the evacuee property. It is for the Custodian to be satisfiedabout the genuineness of the claim. The Custodian must determine whether aperson making a claim against the evacuee is entitled to the right claimed, andif he is satisfied, the claim may be discharged out of the funds in hispossession. But by the use of the expression 'in the opinion of theCustodian' it was not intended to invest the Custodian with arbitraryauthority. It is for the Custodian to determine when a claim is made by theevacuee, or a member of his family or any other person for payment of a sum ofmoney, having regard to all the circumstances, whether it is genuine and tosatisfy it if in the opinion of the Custodian such a person is entitled to thepayment. Where a claim is made by a person who claims to be a creditor of theevacuee and he satisfies the Custodian that he is entitled to any sum of money,then normally the Custodian would be justified in discharging the obligationsof the evacuee out of the funds in his possession.

9. But counsel for the Custodian relies upon the terms of s. 10(2)(m) asthey originally stood before they were amended by Act 91 of 1956 and thedeletion of Rule 22 framed under the Act, in support of the contention that theParliament has deliberately taken away the power to entertain a claim forsatisfaction of debts due by the evacuee. Section 10(2)(m), as it originallystood, provided :

'incur any expenditure, including the payment oftaxes, duties, cesses and rates to Government or to any local authority; or ofany amounts due to any employee of the evacuee or of any debt due by theevacuee to any person.'

10. Under Rule 22 made in exercise of the powers under s. 56 of the Act,provision was made for registration of claims by persons claiming to receivepayment from any evacuee or from any property of such evacuee, whether inre-payment of any loan advanced or otherwise, by presenting a petition to theCustodian. The Custodian was entitled to register a claim under Clause (2) whereit was supported by a decree of a competent court or a registered deed executedand registered before 14-8-1947 or by a registered deed executed and registeredon or after 14-8-1947, and the transaction in respect of which the deed was soexecuted and registered had been confirmed by the Custodian, or where anacknowledgment in writing was executed by the evacuee himself before the 1stMarch 1947 or where such claim was of the nature referred to in the Explanationto sub-rule (1) and the transfer of property in respect of which the claim wasmade was a bona fide transaction. If the claim did not fall under sub-rule (2)the Custodian had to direct the claimant to establish his claim in a civilcourt. Sub-rules (3) & (4) provided:

' (3) The mere registrationof a claim shall not entitle the claimant to payment and the Custodian may forreasons to be recorded refuse payment.

11. (4) No debt incurred by theevacuee before the property vested in the Custodian shall be paid without thesanction of the Central Government or Custodian General.'

11. The Explanation to sub-rule (4) set out cases in which the sanction ofthe Central Government was not necessary.

12. The Administration of Evacuee Property Act, 1950 was amended by Act 91of 1956 and the words 'or of any amounts due to any employee of theevacuee or of any debt due by the evacuee to any person' in s. 10(2)(m)were deleted. The Central Government thereafter issued on February 20, 1957 anorder deleting Rule 22. Relying upon this legislative development, it wascontended, that an express power to entertain a claim for satisfaction of debtsdue by the evacuee was conferred upon the Custodian by s. 10(2)(m) andmachinery was provided for effectuating the exercise of that power in Rule 22,and the Legislature having deleted the clause which authorised the Custodian toexercise the power to pay debts and the machinery in that behalf, no such powerremained vested in the Custodian.

13. We are, however, unable to agree that because of the amendment made ins. 10(2)(m) and the deletion of Rule 22 the power which is vested in theCustodian under s. 10(2)(n) must be held restricted. Sub-section (1) of s. 10sets out the powers of the Custodian generally, and the diverse clauses insub-s. (2) illustrate lie specific purposes for which the powers may beexercised, and there is no reason to think that the clauses in sub-s. (2) aremutually exclusive. If power to pay the debts was derived both under els. (m)& (n) as it appears it was, deletion of the provision which authorised theCustodian to pay debts due by the evacuee to any person from Clause (m) and ofRule 22 setting up the machinery for registration of debts did not, in ourjudgment, affect the power which is conferred by Clause (n) by sub-s. (2) and alsoby s. 10(1), In our judgment, the power to administer is not merely a power tomanage on behalf of the evacuee so as to authorise the Custodian merely torecover and collect the assets of the evacuee, but to discharge his obligationsas well. The power to administer for purposes mentioned, having regard to thediverse clauses in sub-s. (2), includes the power to pay such debts which inthe opinion of the Custodian are binding upon the evacuee. Specific enunciationof that power in Clause (n) authorising the Custodian to pay to any other personwho in the opinion of the Custodian is entitled to any sum of money supportsthat conclusion.

14. As already observed, the decree of the civil court is not decisive ofthe question whether a person making a claim is entitled to the sum of moneyclaimed by him. It is for the Custodian to determine whether the claimant isentitled to receive the sum of money claimed by him out of the funds in hispossession. He has to form his 'opinion' on this question : ofcourse, in forming his opinion he must act judicially and not arbitrarily. Asthe Tribunals below have determined the claim raised before them only on the questionof jurisdiction to entertain it and not on the merits, we are unable to passany effective order in favour of the appellant. The orders passed by theCustodian and the Custodian General must therefore be set aside and theproceeding remanded to the Custodian to determine the question whether in theopinion of the Custodian the appellant is entitled to any sum of money out ofthe funds in his possession and whether for the purpose of administration andmanagement of the evacuee property or for enabling him to satisfactorilydischarge his duties under the Act the amount claimed should be paid.

15. The appeal is therefore allowed. The appellant would be entitled to hiscosts in this appeal from the Custodian.

16. Appeal allowed.


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