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Lajwanti Vs. Baleshwar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 198 of 1971
Judge
Reported inILR1972Delhi874B
ActsTransfer of Evacuee Deposit Act, 1954 - Sections 9
AppellantLajwanti
RespondentBaleshwar Singh and anr.
Advocates: Harbans Singh,; Santosh Chatterjee and; M.L. Mehra, Adv
Cases ReferredSmith v. Hancock
Excerpt:
(i) transfer of evacuee deposits act (1954) - section 9--scope of--deposits with court of wards in lahore transferred to india after partition--claim by a concubine for maintenance from the said transferred deposits--competence of--displaced persons (debts adjustment) act, 1951.; where 'deposits' lying with the court of wards in lahore were transferred to india after partition of the country to be dealt with in accordance with the transfer of evacuee deposits act, 1954 and the appellant, a concubine of the grand father of the respondents, preferred claim for maintenance from the said transferred deposits :; that the claimant or claimants to the deposit denote only the owners thereof and not claimants for maintenance. this is why under section 9(3) the court has to 'award the deposit.....v.s. deshpande, j.(1) the parties are displaced persons who migrated to india from west pakistan in the wake of the partition of the country. the respondents are sons of the deceased harcharan singh who was the son of the deceased kesri singh, raja of sheikhupura in the undivided punjab now part of west pakistan. it is admitted by the respondents that the appellant was a keep of the late raja kesri singh. the appellant, however, contends that she was legally married to kesri singh. kesri singh died in or about 1935 and his son harcharan singh also died in or about 1936. their estate was, thereforee, taken over by the court of wards as the respondents were then minors. the court of wards granted rs. 100.00 per month as maintenance to the appellant. this went on till shortly before the.....
Judgment:

V.S. Deshpande, J.

(1) The parties are displaced persons who migrated to India from West Pakistan in the wake of the partition of the country. The respondents are sons of the deceased Harcharan Singh who was the son of the deceased Kesri Singh, Raja of Sheikhupura in the undivided Punjab now part of West Pakistan. It is admitted by the respondents that the appellant was a keep of the late Raja Kesri Singh. The appellant, however, contends that she was legally married to Kesri Singh. Kesri Singh died in or about 1935 and his son Harcharan Singh also died in or about 1936. Their estate was, thereforee, taken over by the Court of Wards as the respondents were then minors. The court of Wards granted Rs. 100.00 per month as maintenance to the appellant. This went on till shortly before the partition of the country. The parties then came over to India. A sum of Rs. 10,74,000.00 out of the profits of the estate was in deposit with the Court of Wards, Lahore. This deposit was transferred to India in accordance with the agreement between India and Pakistan to be dealt with under the Transwer of Evacuee Deposits Act, 1954. The appellant made an application to the Custodian of Deposits that she be paid half of the deposit as the widow of the late Raja Kesri Singh or alternatively Rs. 100.00 per month as maintenance from the deposit. The respondents denied that the appellant was a widow of Kesri Singh and that she was entitled to any share in the deposit. They also denied their liability to pay maintenance to the appellant out of the Q deposit. The Custodian, thereforee, forwarded the deposit and the records relating thereto to the Court of the District Judge, Delhi, under section 9(2)(b) of the Transfer of Evacuee Deposits Act, 1954 for a decision of the dispute and the award of the deposit to the party entitled thereto or distribution of the same among the parties so entitled. The District Judge found as a fact that the appellant was not legally married to Kesri Singh but was his concubine and was as such entitled to a maintenance of Rs. 100.00 per month. He held that she was entitled to Rs. 25,000 as arrears of maintenance and ordered the same to I be paid out of the deposit to her. Lajwanti (appellant) filed an appeal in this Court against the decision of the District Judge under section 9(4) of the said Act asking for a share in the deposit or alternatively increased maintenance while Baleshwar Singh and Surrinder Singh (respondents) filed cross-objections denying both these claims. v. D. Misra J. dismissed the appeal by Lajwanti and partly allowed the cross-objections of Baleshwar Singh and Surinder Singh. The learned Judge agreed with the District Judge that Lajwanti never legally married Kesri Singh but was only his concubine and that she was entitled to a maintenance of Rs. 100.00 per month as such. The learned Judge, however, held that the power of the District Judge to grant maintenance to Lajwanti was not greater than the power of Court of Wards to do so. That power came to an end when Baleshwar Singh and thereafter Surinder Singh attained majority by 18th August 1957. The amount of the arrears of maintenance till that date amounted to only Rs. 12,160.00 which was directed to be paid to Lajwanti out of the deposit, and the rest of her claim was dismissed. It is against this decision that Lajwanti has filed this letters patent appeal again asking either for one half share in the deposit or maintenance at a higher rate out of it.

(2) We are in agreement with the concurrent findings of fact given by the District Judge and the learned Single Judge that Lajwanti was not married to Kesri Singh but was his concubine and as such she was entitled to maintenance from Kesri Singh and thereafter from the respondents to the extent of the assets of Kesri Singh received by them. The only question of law for decision in this second appeal, thereforee, is whether the appellant Lajwanti is entitled to be paid her maintenance out of the deposit. The answer to this question depends on the correct construction of section 9 of the Transfer of Evacuee Deposits Act, 1954. But that Act itself is a part of a bigger scheme of legislation and can be best understood in the background of the said scheme.

(3) The object of this scheme of legislation was to give relief to displaced persons. This problem was tackled as follows :- (1) The immovable property left in West Pakistan by these displaced persons became evacuee property in West Pakistan while the immovable property left by migrants from India to Pakistan became evacuee property in India. These properties vested in the Custodians of Evacuee Property in the two countries. Pending the final agreement between the two countries about these immovable properties, the claims of displaced persons to the immovable properties left in West Pakistan were registered and evaluated in India under the Displaced Persons (Claims) Act, 1950 and the Displaced Persons (Claims) Supplementary Act, 1954. Under the Displaced Persons (Compensation & Rehabilitation) Act, 1954, the immovable evacuee property in India was acquired by the Central Government and put into the compensation pool out of which compensation was paid to the displaced persons by the Government for the immovable properties they had to leave behind in West Pakistan. (2) An agreement between India and Pakistan was arrived at for the transfer from India to Pakistan and vice versa of certain specific movable properties belonging to displaced persons which were in the custody of a civil or a revenue court or of a court of wards or of a manager of an encumbered estate, to be held in custody by Custodians of Deposits. Such movable property was called a 'deposit' under the Transfer of Evacuee Deposits Act, 1954. These deposits were .to be awarded by the Custodian to the displaced persons to whom they belonged and in case of dispute, they were to be distributed among the claimants by the District Judge under section 9 of the said Act. (3) Debts owed by or to such displaced persons in India were determined, adjusted and made payable by decrees pased by tribunals under the Displaced Persons (Debts Adjustment) Act, 1951.

(4) Under which of the above-mentioned three classes of statutes does the claim of the appellant against the respondents fall? The distinction between the statutes falling in classes (1) and (2) on the one hand and the statute falling in clause (3) is that classes (1) and (2) fall in the domain of the public law as they deal with the relations of the displaced persons with the Government in respect of their immovable and movable properties while class (3) falls in the domain of private law dealing with the relations between displaced persons inter se and also with other private persons. The immovable properties and such specific movable properties as are a 'deposit' under the Transfer of Evacuee Deposits Act, 1954 are dealt with on a governmental basis. It is- the Government which undertakes to pay compensation to displaced persons for the immovable properties left by them in Pakistan. Similarly, the deposits from West Pakistan are transferred on a governmental level to India. These deposits are awarded to or distributed among the claimants on a governmental level. The claims by the displaced persons are entertained by the Government and met by the Government. On the other hand, the Government does not come into the pietrue at all under the Displaced Persons (Debts Adjustment) Act, 1951 which deals with claims between private persons. No question of any agreement between the Governments of India and Pakistan arises there under at all.

(5) What is the nature of a claim for maintenance by a concubine like the appellant under the Hindu Law? Under the Hindu Adoptions & Maintenance Act, 1956, a concubine is not among the dependents entitled to maintenance. But under the Hindu law prior to 1956 Raja Kesri Singh was under a personal obligation to maintain the appellant as his concubine. After the death of Raja Kesri Singh, the obligation of his heirs to maintain the appellant ceased to be personal but they were legally bound to provide maintenance to the appellant out of the estate which came into their hands from Kesri Singh. The nature of the claim of a concubine for maintenance was, however, that of an indefinite right. Such a right could become definite either by an agreement between the person bound to pay maintenance and the person entitled to it or by a decree between the two. thereforee, debts contracted by a Hindu take precedence over the right to maintenance. In view of section 39 of the Transfer of Property Act, the claim of the appellant against the respondents 'to receive maintenance............ from the profits of immovable property' of Kesri Singh in their hands is liable to be defeated if such property is purchased bona fide by a third person without notice of the right to maintenance.

(6) The same would be true in case of a movable property. A charge has to be created on the movable or the immovable property for maintenance so as to serve as a notice to the transfree if the property is to be liable for maintenance in the hands of the transferee. All this shows that the claim of the appellant to maintenance is a claim in personam against the respondents to the extent of the estates of Kesri Singh in their hands. It .is not in itself an interest in the property of Kesri Singh. Had it been an interest in the property, then such interest would not have been defeated by the transfer of the property to third persons who did not have notice of the right to maintenance.

(7) The distinction between the right of maintenance to be paid out of movable or immovable property and the possession of interest in such movable or immovable property is best expressed in the Roman law terms obligatio and dominium. An obligation is vested in or belongs to a creditor and is available against a debtor. A technical synonym for obligation is chose in action or thing in action. A chose in action means, in our modern use of it, a proprietary right in personam, for example, a debt or a share in a joint stock company. A chose in action is opposed to a chose in possession, though the latter term has all but fallen out of use. This distinction can now be identified as one between personal and real rights. A chose in action is a proprietary right in personam. All other proprietary rights are choses in possession particularly when the object of the right is itself identified with the right itself when the object is in possession of the owner. thereforee, money in a man's purse is a thing in possession while money due to him by a debtor is a thing in action.

(8) The distinction between a right to maintenance and the ownership of immovable or movable property is best realised by the difference in the remedies by which they are enforced. Under sections 8 and 9 of the Specific Relief Act, 1877 (corresponding to sections 5 and 6 of the Specific Relief Act, 1963) immovable property is specifically recoverable by a suit for possession of the same. Similarly, under sections 10 and 11 of the Specific Relief Act, 1877 (corresponding to sections 7 and 8 of the Specific Relief Act, 1963) specific movable property is recoverable by a suit for the possession of the same. This is in accordance with the corresponding provisions of the Civil Procedure Code. On the other hand, a right to maintenance has to be enforced by a suit for money which is outside the scope of the Specific Relief Acts. If, thereforee, the appellant wanted to enforce her right of maintenance against the respondents, the remedy for her was a suit for money and not a suit for the recovery of specific movable property or a part thereof. In the scheme of legislation relating to displaced persons referred to above, enforcement of a claim for maintenance fell under the Displaced Persons (Debts Adjustment) Act, 1951. For, maintenance was a 'debt' due to the appellant from the respondents to the extent of the estate of Kesri Singh in their hands. This is made clear by the definition of a 'debt' in section 2(6) of the said Act to mean 'any pecuniary liability, whether payable presently or in future, or under a decree or order of a Civil or Revenue Section 34 of the said Act specifically enables a displaced debtor who is liable to pay maintenance allowance under any agreement or under any decree or order of a court to ask the tribunal under the said Act to very the rate at which such allowance is payable. This shows that the claim to maintenance is enforceable under the Displaced Persons (Debts Adjustment) Act, 1951. It would follow, thereforee, that the subsequently enacted Transfer of Evacuee Deposits Act, 1954 could not have been intended to cover the claim to maintenance which was already covered by the previously enacted statute.

(9) It is in the above back ground that we have now to construe the relevant provisions of the Transfer of Evacuee Deposits Act, 1954. The word 'deposit' is ordinarily used to mean a money deposit such as deposit in a bank. But such a deposit is not a deposit in specie but is only a debt or an actionable claim of the creditor against the debtor or the bank with whom the money is deposited within the meaning of the definition of an actionable claim in section 3 of the Transfer of Property Act. The term 'deposit' is not used in this Act in this sense at all. It is used only as a convenient expression in the absence of a better one. The definition of a 'deposit' in section 2(b) of the Act means 'any movable property' in the custody of a civil or a revenue court or a court of wards or a manager of an encumbered estate and includes securities, insurance policies and negotiable instrurments in such custody. A money deposit is not referred to at all in this definition. The only reason why the money in the custody of a court of wards becomes a 'deposit' of movable property within the meaning of section 2(b) of the Act is that such money was in public custody and could, thereforee, be dealt with between India and Pakistan on a governmental level. If the money had been in deposit with a bank or with a private person, then it would not have been covered by the definition of a, 'deposit' under the Act. In that event, the claim to such money would have been a 'debt' and it would have been dealt with under the Displaced Persons (Debts Adjustment) Act, 1951. Neither before the Custodian nor before the District Judge nor before the learned Single Judge has it been appreciated that the sum of money held by the court of wards and transferred in pursuance of a intergovernmental agreement from Pakistan to India to be held by the Government for delivery to the displaced person to' whom it belongs is treated purely as a movable property capable' of delivery to the person entitl by a public authority and not as a monetary obligation of one person to another. Had this distinction been perceived, then the claim for maintenance would have been found to be covered under the Displaced Persons (Debts Adjustment) Act, 1951 and to be outside the scope of the Transfer of Evacuee Deposits Act, 1954. In section 2(f) 'transferable deposit' means a deposit in which an evacuee has any right or interest, to the extent of that right or interest. An evacuee in Pakistan becomes a displaced person in India and vice versa. thereforee, the Act deals with only such 'deposit' in which an evacuee (or a displaced person) has any right or interest. The right or interest must be in the deposit itself meaning thereby that the evacuee or the displaced person must be an owner or a part owner of the deposit. If he has only a money claim against the person who is the owner of the deposit then the person having the money claim cannot be said to have any right or interest in the deposit itself.

(10) The crucial provision is section 9 which reads as below:-

'9.Reception in India of deposits transferred from Pakistan.- (1) It shall be lawful for the Custodian to receive and hold in his custody and deposit transferred by any such officer or authority in Pakistan as may be specified by the Central Government by general or special order as being a deposit belonging to any displaced person in India. (2) On receipt of any such deposit as is referred to in subsection (1) the Custodian shall cause notice thereof to be given in such manner as may be prescribed to all persons who may, in his opinion, be interested in the deposit, and after giving a reasonable opportunity to such persons to be heard in the matter and after inspecting any such record relation to the deposit as may be transferred from Pakistan, dispose of the deposit in the manner following, that is to say:- (a) if there is only one claimant entitled to the deposit or if all the claimants, where there are more than one, appear before the Custodian and there is no dispute as to the distribution of the deposit, pay the deposit to that claimant or, as the case maybe, distribute the deposit among the claimants in the manner agreed to by them; (b) if all the claimants do not appear before the Custodian or if all such claimants appear but do not agree as to the person or persons entitled to the deposit or to the manner of its distribution among them, the Custodian shall forward the deposit and the records relating thereto to the principal civil court of original jurisdiction within whose jurisdiction all, or the largest number of claimants, reside, or where the claimants residing within the jurisdiction of two or more courts are equal in number, to the court which, in the opinion of the Custodian, would best serve the convenience of the claimants. (3) The court to which a deposit and any record relating thereto are forwarded under sub-section (2) shall proceed to deal with the matter as if the deposit had been made in compliance with an order made by it in a proceeding before it and, after making such further inquiry into the matter as it thinks fit, award the deposit to or distribute it among the person or persons who in its opinion is or are entitled thereto. (4) An appeal shall lie from every order passed by any court under sub-section (3) to the court authorised to hear appeals from the decisions of such court if the amount or value of the subject matter of the claim made in the appeal exceeds two thousand rupees. (5) The disposal of any deposit in accordance with the provisions of the section shall discharge the Custodian from any liability to any person in respect of the deposit.'

(11) Following the definition in section 2(f), the Custodian in India can receive and hold in his custody under section 9(1) only a deposit 'belonging to any displaced person in India'. The expression 'belonging to' obviously means owned by a displaced person as a proprietor thereof. If his right is less than that of a proprietor, then the deposit would not be covered by section 9(1) atall. Again following section 2(f), the Custodian under section 9(2) hears only persons 'interested in the deposit'. The word 'interested' has both a wide and a narrow meanings. Widely used, any interest such as that of an aggrieved person which gives him a standing to sue or file a writ petition may be sufficient. In a narrower sense, however, interest means a proprietary right. Interest in property always denotes the narrower meaning of a proprietary interest in the property as distinguished from money claims which may be enforced by suits for money even though ultimately they may be satisfied by attachment and sale of property. Similarly, the word 'claimant' is to be understood in the context of the nature of the claim. In section 9(2)(a) the claim is to the delivery of the movable property or a distribution of the same by a person who is 'entitled to the deposit'. Though the words 'entitled to' can be used equally of an interest in property as well as of a personal right not amounting to an interest in property, in the context of section 9(2) and (b) they are used to denote an interest in the movable property and not to denote a money claim. This is why the Custodian has to 'pay' the deposit to the claimant or to distribute the same among the claimants. The payment or the distribution physically refers to the deposit and not to the payment of a money claim. The concept of distribution accords only with the distribution of property among persons entitled to the property as owners. It does not accord with the payment of a money claim to a creditor of the owner of the property in this context. As already observed above, the claim for maintenance by the appellant is not against the Government at all. It is against another displaced person. This is why it is covered by the Displaced Persons (Debts Adjustment) Act, 1951 which deals with claims between two private persons. It is not, thereforee, covered by the transfer of Evacuee Deposits Act, 1954 which does not deal with a claim by one displaced person against another but only with a claim by a displaced person to the ownership of the deposit which is held by the Government for delivery to the claimant or distribution among the claimants. When one person sells his property or business to another person and agrees that he will not compete with the purchaser thereafter by having any 'interest' in a similar business, the word 'interest' in such a context was construed to mean 'any proprietary or pecuniary interest in it' in Smith v. Hancock, (1894) 2 Ch. 377 C.A. per Lindley. L. J. at 3860). In the same context, it was observed by Lord Halsbury, L.C., in Cory (William) & Son. Ltd. v. I Harrison, (1906) A.C. 274 at 2760 as follows:-

'THEmere fact of being a creditor of the firm is not being 'concerned or interested in' it.'

(12) The person entitled to maintenance from another is a creditor as against the latter who is a debtor. The claim to the pay- ment of maintenance is a claim to money to be paid out of the property held by the debtor. It is not a claim as an owner or a co-sharer in or to the property itself. The relationship of creditor and debtor can exist only in respect of a debt which is dealt with by the Displaced Persons (Debts Adjustment) Act, 1951. It is foreign to the custody of movable property by the Govern- ment to be given over to the owner of the movable property under the Transfer of Evacuee Deposits Act, 1954. Even where maintenance is made a charge on property, the charge holder would not have an interest in or claim to the property in as much as a charge does not amount to an interest in the property (vide section 100 of the Transfer of Property Act). A fortiori. a mere claim to maintenance which is not even secured by a charge cannot amount to an interest in the property. It is in this context that section 9(3) has to be construed. The principal civil court of original jurisdiction to whom the deposit is forwarded by the Custodian deals with the matter 'as if the deposit had been made in compliance with an order made by it in a proceeding before it'. If these words are taken by themselves without reference to the context in which they are used, they are capable of a very wide meaning. The Court, for instance, in an execution proceeding may attach money in the hands of a granishee and ask him to deposit in Court. A proceeding in court can include a proceeding in execution or a suit or an application for maintenance. It would be arguable than that the civil court dealing with the matter can entertain a claim for maintenance to be paid out of such money. We are, however, unable to give such a meaning to these words inasmuch as subsection (3) has to be read in the context of sub-sections (1) and (2) of section 9. In that context, the claimant or claimants to the deposit denote only the owners thereof and not claimants has to 'award the deposit to or distribute it among the person or persons who in its opinion is or are entitled thereto'. The words 'award', 'distribute' and 'entitled thereto' all show that the claimants to whom the deposit can be awarded or among whom it can be distributed are only such persons as are entitled to the deposits in the sense of being owners of it.

(13) Only a word needs to be said regarding Explanationn Ii to section 2(b) which defines a 'deposit' which is as follows:-

'WHEREany deposit in the custody or under the control of any civil or revenue court or under the superintendence or in the custody of a court of wards or in the custody or under the control of the manager has vested in the Cus- todian of Evacuee Property as evacuee property, such deposit shall, for the purposes of this Act, be deemed to be in the custody or under the control of such civil or revenue court or under the superintendence or in the custody of the court of wards or in the custody or under the control of the manager, as the case may be.'

(14) The learned Single Judge was of the view that the powers of the District Judge in dealing with the deposit under section 9(3) were restricted by Explanationn Ii to section 2(b) of the Act and the District Judge had to act as if he was the court of wards in the custody of which the deposit originally was with the result that the District Judge could not do what the court of wards itself could not do with the deposit. With respect, we are of the view that the object of Explanationn Ii to section 2(b) is only to make it clear that the deposit though vested in the Custodian of Evacuee Property as evacuee property is not to be treated as evacuee property at all. Had it been so treated, then it would have continued to belong to the evacuee and would have to be acquired by the Government to divest the evacuee of his title before it could be disposed of by the Government. Since the Government of Pakistan has not dealt with this deposit as a evacuee property in Pakistan but has on the contrary agreed to transfer it to India to be placed in the custody of the Custodian of Evacuee Deposits in India, the deposit had to be treated as being free from the restrictions to which the evacuee property is subject. The definition of 'deposit' in section 2(b) shows that a deposit could be in the custody of four different public authorities in Pakistan, namely:-

(1)a civil court, (2) a revenue court, (3) a court of wards, and (4) a manager of an encumbered estate.

(15) But deposits originating from these four different sources are all unified into one source by section 9(3) of the Act by the fiction that it is to be treated as if it was a deposit made in the Court of District Judge by his order in a proceeding before him. This is done to enable the District Judge to deal with the deposit there under. Section 9(3) frees the District Judge from the restrictions to which the deposits were subject when they were in the custody of the four sources from which they originated. In Item No. 30, column No. 8 of page 4 of Statement No. 1 attached to the Report on the Administration of Estates under the Court of Wards in Punjab for the year ending 30th September, 1937 published by the Superintendent, Government Printing, Punjab at Lahore in 1939, we find that the estate of the late Sardar Harcharan Singh belonging to the wards Baleshwar Singh and Surrinder Singh who were born on 20-6-1932 and 19-8-1936 respectively was taken over on 8-6-1937 under section 6 of the Punjab Court of Wards Act, 1903, mainly because the wards were minors. Under section 13(1) of the said Act, the estate of the wards vested in the Court of Wards and remained so vested until the Court of Wards by notification under section 50 divested itself of the superintendence of the estate. Ordinarily, thereforee, the divesting of the estate from the court of wards would have taken place when the minors attained majority and the estate would have been handed over to them by the court of wards. This, however, was not done because the agreement between India and Pakistan required that the deposit should be transferred from Pakistan to India on governmental level. This agreement and the consequent legislation superseded the provisions of the Punjab Court of Wards Act and the deposit was thereafter to be governed by the Transfer of Evacuee Deposit Act. This fact itself shows that the civil court under section 9(3) was not to act like a court of wards under the Punjab Court of Wards Act, 1903. On the other hand, the power to be exercised by the civil court under section 9(3) is totally different from the power to be exercised by the court of wards under the Punjab Court of Wards Act including section 25 thereof. If the claim of the appellant for maintenance could have amounted to an interest in the deposit, then under section 9(3) the District Judge could have considered the whole of the claim till the date of his order. The District Judge would not have been restricted in granting the maintenance for the period ending with the date on which the wards attained majority. The amount allowed by the District Judge could not, thereforee, have been reduced on that ground as the learned Single Judge purported to do. But in view of our finding that the claim for maintenance is not an interest in the deposit itself, it could not be considered at all either by the Custodian or by the District Judge or by the learned Single Judge. Had, thereforee, the respondents filed an appeal or cross-objections before us we would have been bound to disallow the whole of the claim made by the appellant. In the absence of such appeal or cross-objections by the respondents, however, we are unable to interfere with the order of the learned Single Judge giving Rs. 12,100.00 to the appellant as arrears of maintenance. We are sorry that the appellant has pursued a wrong remedy in respect of her claim for maintenance. We, thereforee, simply dismiss the appeal without making any order as to costs.


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