Skip to content


Hafiz Zahoor UddIn Vs. the Custodian of Evacuee Property - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 249 of 1968
Judge
Reported in5(1969)DLT559
ActsAdministration of Evacuee Property Act, 1950 - Sections 10A; Transfer of Property Act, 1882 - Sections 3 and 8
AppellantHafiz Zahoor Uddin
RespondentThe Custodian of Evacuee Property
Advocates: Bawa S.C.Singh and; Bribhans Kishore, Advs
Cases ReferredMemon Abdul Karim Hari Tayab Central Cutlery Stores v. Deputy Custodian General
Excerpt:
.....rents and profits regarding the suit property under sections 10a and 48 of the administration of evacuee property act - it was held that section 10-a of the act empowered the custodian to assess the rent or damages to be paid by the person and to order the recovery of the same without going to the civil court - - this order was challenged as ultra virus and illegal by the appellant in a suit which has been dismissed by the trial court as well as by the first appellate court. (1)in considering the first contention, it would be well to understand the precise nature of the evacuee property vesting in the custodian. the right of the custodian against the mutwalli is, thereforee, precisely the same as the right of the beneficial owners. the principle governing such operation has been..........the beneficiaries having migrated to pakistan, their beneficial interest in the property became 'evacuee property within the meaning of section 2(f) of the administration of evacuee property act, 1950, thereinafter called the act of 1950) and vested in the custodian under section 11(2)(b) of the act on a notification being issued under section 7(1) thereof the evacuee property being an undivided 63/140 share of the property, only constructive possession of it could be taken by the custodian under rule 10(3) of the administration of evacuee property central) rules 1950 (hereinafter called the rules of 1950). under section 10(2)(b) of the act, the assistant custodian (judicial) passed an order on 20th november, 1952 that the appellant being the mutwalli was entitled to manage the suit.....
Judgment:

V.S. Deshpande, J.

(1) The suit property was Wakfalal-aulad (Trust for the benefit of the family members] held by the appellant as the Mutwalli (Trustee) for the benefit of himself and other members of the family. Some of the beneficiaries having migrated to Pakistan, their beneficial interest in the property became 'evacuee property within the meaning of Section 2(f) of the Administration of Evacuee Property Act, 1950, thereinafter called the Act of 1950) and vested in the Custodian under Section 11(2)(b) of the Act on a notification being issued under section 7(1) thereof The evacuee property being an undivided 63/140 share of the property, only constructive possession of it could be taken by the Custodian under Rule 10(3) of the Administration of Evacuee Property Central) Rules 1950 (hereinafter called the Rules of 1950). Under Section 10(2)(b) of the Act, the Assistant Custodian (Judicial) passed an order on 20th November, 1952 that the appellant being the Mutwalli was entitled to manage the suit property as such. He was, however, ordered to deposit the rent of the evacuee portion of the property in the Custodian's Chest.

(2) The question of the management of the beneficiary interest of the evacuees in Wakf-alal aulad properties was letter on considered by the Government and a policy decision was taken on 29th December, 1957 to transfer, the interest of the evacuee beneficiaries on its capitalised value, viz. 20 times the net annual rental value to the non-evacuee beneficiaries. Still later on 9th September, 1960 this decision was further modified with the result that the evacuee beneficiary interest in properties in which some beneficiaries had along with the Mutwalli were non-evacuees was to be relinquished in for our of the non-evacuees beneficiaries of the respective wakt. Apparently, this action was taken under Section 54 of the Act of 1950 which empowers the Central Government to pass appropriate orders for the purpose of regulating the administration of evacuee property. In accordance with this policy decision, the Assistant Custodian (Judicial) passed an order on 15th November i960 relinquishing the interest of the evacuee beneficiaries in the suit property and releasing it in favor of the appellant subject to the conditions, inter alia, that he shall pay the amount if any, due to the Custodian, in respect of the property or management thereof. Accordingly, the appellant is in the exclusive management of the suit property since then. The Assistant Accounts Officer of the Office of the Custodian of the Evacuee Property, however, called upon the appellant to render accounts with respect to the beneficiaries interest of the evacuee property up to the date of the relinquishment. The appellant repudiated his liability to render the account. On 19th July, 1964. thereforee, the appellant was served with a notice by the Assistant Custodian to submit the statement of Accounts, failing which coercive measures would be taken against the appellant to realise the sum of Rs. 14,028.84 as the arrears of rent for the 63/140 shares of the evacuee beneficiaries in the suit property. This order was challenged as ultra virus and illegal by the appellant in a suit which has been dismissed by the trial Court as well as by the first appellate Court.

(3) In the second Appeal, the attack on the said demand was confined by the learned counsel for the appellant to the following grounds :-

(1)The relinquishment dated 15th November, I960 extinguished the right of the Custodian to demand the arrears of the rent in respect of the beneficial interest of the evacuees in the property even prior to the date of the relinquishment

(2)Even if it is assumed that the right to recover the arrears of rent till the date of the relinquishment survived, the liability of the appellant was nto to be determined unilaterally by the Custodian alone under Section 48 of the Act of 1950 and only a civil Court could do that. The threatened recovery of the demand as an arrear of land revenue under Section 48 was, thereforee, illegal.

(1)In considering the first contention, it would be well to understand the precise nature of the evacuee property vesting in the Custodian. The learned counsel for the appellant relied upon the decision in Mohd. Ali Hassan Khan v. Bhagirathlal for the proposition that it is nto the ownership in the evacuee property, but only the right to manage and administer the same, for the due preservation thereof, that vests in the Custodian. Fortunatly, we do nto have to enter into the juristic niceties of the nature of the property vested in the Custodian. By virtue of Section 8 of the Act, the property vests in the Custodian so that the Custodian is legally entitled to recover the profits of the property. Sub-section (4) of Section 8 makes it clear that where after any evacuee property is vested in the Custodian, any person is in possession thereof, he shall be deemed to be holding the property on behalf of the Custodian. The appellant as the Mutwalli was in actual .possession of the property, though the beneficial interest of the evacuees in the said property had vested in the Custodian. Under Section 8(4), thereforee, the appellant was deemed to be holding the beneficial interest of the evacuee in the property on behalf of the Custodian. The right to the share of the rent of the property belonging to the evacuee beneficiaries also thereforee vested in the Custodian. It is by virtue of this right that the Custodian could demand from the appellant the share of the profits of the evacuee beneficiaries. Just as the appellant as the Mutwalli had held the property formerly for the benefit of the evacuee beneficiaries, he continued to hold it for the Custodian, in benefit of the whom was vested the interest cf the evacuee property could nto be taken by the Custodian. Just as the beneficiaries were, however, entitled to share in the rent and profits of the property, the Custodian also was entitled to do the same. The right of the Custodian against the Mutwalli is, thereforee, precisely the same as the right of the beneficial owners. This right definitely included the right to participate in the rents and profits of the property to the extent of the share of the beneficial owners.

The question is whether the right to demand the rents and profits of the property till 15th November, 1960 was destroyed by the relinquishment of the beneficial interest of the evacuees in the suit property by the Custodian in favor of the appellant made on that date. To appreciate fully the effect of this transaction dated l5th November, 1980, it is necessary first to point out that the word 'relinquishment' really meant 'transfer' therein. A true relinquishment could have been made in favor of the evacuee beneficiaries themselves. Their interest, which had vested in the Custodian could then be revested back in their own favor. Even then, it would have been a question of the construction of the terms of relinquishment whether the right to the past rants and profits of the property revested in the beneficial owners along with the property, that is to say, whether the relinquishment had a retrospective effect. The so called 'relinquishment' by the Custodian in the present case, was however, nto in favor of the evacuee beneficiaries at all. It was in favor of the non-evacuee beneficiaries, who were nto the owners of the property of the evacuee beneficiaries. These nor evacuee beneficiaries never had any beneficial right in the shares of the evacuee beneficiaries. At no time prior to l5th November, 1969, thereforee, they were entitled to the rents and profits of the shars of the evacuee beneficiaries. The relinquishment and release of the beneficial interest of the evacuee by the Custodian in favor of the non-evacuee beneficiaries was, thereforee, really a transfer of the property. For, the transferees had at no time before the transfer any beneficial interest in the said property. The question, thereforee, resolves into one of the extent of the operation of the transfer. The principle governing such operation has been clearly laid down in Section 8 of the Transfer of the Property Act in the following words :-

'S.8.Unless a different intention is expressed or necessarily implied, a transfer of property passes fourth with to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the casement, annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth.'

The meaning of this part of Section 8 has been admirably expounded in the light of the judicial decisions in Mulla on the Transfer of property Act, 5th Edition, at pages 89 and 90, as follows ;-

'RENTS and profits accruing after the transfer are benefits to arise out of the land and are thereforee within the definition of immoveable property. The rents and profits of property mortgaged by an English mortgage form part of the mortgagee's security. A buyer's right to rents and profits thereforee accrues on the date of the transfer. This is made clear by section 55(4)(a) under which the seller is entitled to the rents and profits of the property until ownership passes to the buyer, and also section 55(6)(a) which declares the buyer entitled to rents and profits when the ownership of the property passes to him. At a Court sale of property vests it the date of sale and so the auction purchaser is entitled to the crops grown between the date of sale and the date of confirmation of the sale. See, in this connection section. 3b, which deals with the apportionment of rent. If the vendor retains possession after the ownership has passed to the buyer be may be charged for use and occupation. Rents and profits accruing due before the transfer are nto legal incidents of the property transferred. Such arrears of rents are a debt or actionable claim and if they are to be transferred must be assigned separately.'

(4) Further, the order dated 15th November, 1960 does nto leave the matter in doubt. Condition 8 thereof expressly stipulates that the persons to whom the properties were released were to pay the amount, if any, due to the Custodian in respect of the properties or management thereof. The words 'if any' merely show that if no amount was due at all on the date of the release in respect of the properties then nothing would be payable to the Custodian. But, in the present case, the cause of action to claim the rents and profits of the beneficial shares of the evacuees in the suit property had accrued to the Custodian from time to time when these rents and profits accrued. These rents and profits were to be collected by the Mutwalli as the legal owner and were to be distributed by him among the beneficial owner. The beneficial owners had, thereforee, the right to demand their shares of the profits from the Mutwalli as the property was yielding rents and profits. It is this right which was reserved in favor of the Custodian by the above quoted words of the order dated 15th November, 1960. In view of the legal principles underlying Section 8 of the Transfer of Property Act and also in view of the express reservation of the right to past profits and rents made in the order dated 15th November, 1960, thereforee, I find that the right to the past rents and profits of the shares of the evacuee beneficiaries was reserved by the Custodian and nto passed to the appellant, Mutwalli, by the order dated I5th November, 1960.

(2)The second contention relates to the power of the Custodian to determine the liability of the appellant to pay the rents and profits of the suit property. The learned counsel for the appellant contends that Section 4S of the Act of 1950 is only a procedural provision which does nto empower the Custodian to determine the liability of the appellant to pay the rents and profits and to recover the same from him. This contention over-looks the amendment of 1960, which inserted Section 10-A in the Act specifically empowering the Custodian to assess the rent or damages payable by person and to order the, the recovery of the same. that learned counsel for the appellant relied upon the following decisions, D. B. Godbole v. Kanwar Rajnath, Baroo Mal v. Custodian General, Evacuee Property and Mohd. Ali Hasan Khan v. Bhagirathlal. for this proposition. The Bombay decision was, however, concerned only with the unamended Sub Section (1) of Section 48 and with sub-section (2) thereof as it was amended in 1954. It was nto concerned with the amendment of sub-section (2) made in 1956. The Supreme Court decision held that there was no provision in the Act of 1950 or in the Rules framed the rounder which authorise the Custodian to direct a person alleged to be in unauthorised possession of the evacuee property to render accounts for rents and profits of that property without resorting to the ordinary remedy of a suit. Their lordships were considering only Section 10 and the relevant Rules in that case. Section 10-A was, however, added to the act by an amendment in 1960, expressly empowering the Custodian to recover rent or damages in respect of the evacuee property vested in the Custodian. Section 10-A was nto for consideration before tie Supreme Court. Secondly, even in the absence of Section 10-A, the right to demand rents and profits from the trustee existed in the beneficiaries and this position was nto altered by the Act or 1950 or the Rules framed there under. Consequently, the Custodian had such a right against the appellant. Lastly, the Supreme Court decision related to an unauthorised person in possession but the appellant is nto an unauthorised person, but, the Mutwalli who is by virtue of his office obliged to pay the share in the rents and profits of the property to the beneficiaries. The Andhra Pradesh decision also was concerned with Section 48 as it stood before the amendment of 1956 and is distinguishable, for that reason. After the amendment of 1956, Section 48 of the Act stands as below : 'S.48 : Recovery of certain sums as arrears of land revenue : (1) Any sum payable to the Government or to the Custodian in respect of any evacuee property under any agreement, express or implied, lease or other document or otherwise howsoever, may be recovered in the same manner as Sb arrear of land revenue. (2) If any question arises whether a sum ''is payable to the Government or to the Custodian within the meaning of sub-section (1), the Custodian shall after making such inquiry as he may deem fit, and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question; and the decision of the Custodian shall, subject to any appeal or revision under this Act, be final and shall nto be called in question by any . Court or other authority. (3) For the purpose of this section, a sum shall be deemed to be payable to the Custodian notwithstanding that recovery is barred by the Indian Limitation Act, 1908 (9 of 1908) (Replaced by Act, 36 of 1963) or any other law for the time being in force relating to limitation of actions.'

(5) The learned counsel for the appellant contends that the words 'sum' used in Section 48 means a sum certain. While the dictionary meaning of the word 'sum' is a particular amount, the word 'sum' does nto always refer to sum certain particularly if Section 48 is read as a whole and also with Section 10-A, which expressly authorises the Custodian to recover Kent under the Act and without going to the civil Court The Custodian is empowered to hold an enquiry by sub-section (2) of Section 48 when a question arises whether a sum is payable to the Government or to the Custodian under any agreement express or implied, lease or other document or otherwise. The very fact that an enquiry has to be held and that the person against whom the demand is made has an opportunity of showing cause that the whole sum is nto due shows that it is also to be inquired into if only a part of it is due or that the sum as demanded was a higher amount that was actually due. If the word 'sum' is construed as a sum certain, the enquiry by the Custodian would be limited to the question whether the sum certain is due or not. The Custodian would, thereforee, be able to mention any figure and decide that the sum is due. The debtor would then have no opportunity of showing that the amount due from him is much less than is demanded by the Custodian. The scope of the enquiry has nto been limited so artificially or drastically by the language of Section 48. We would not, thereforee, be warranted in placing such an artificially narrow meaning on it. It appears to me that the 1956 amendment of Sub-section (2) of Section 48 was made with the very purpose of enabling the Custodian to enquire into the amount due to him and to give a finding as to the amount due to him, after the enquiry. Since the decision of the Custodian is final, subject to the revision or appeal under the Act, a narrow construction of the word 'sum' to means a sum certain would instead of helping the debtor would really cause hardship to him. For, the jurisdiction of the Civil Courts to question the legality of any action in respect of any matter which the Custodian is empowered to determine under the Act is barred by Section 46. In view of the exclusive jurisdiction of the Custodian under Sections 10-A and 43, the Legislature thought it fit to give the debtor an opportunity of showing whether the amount is due from him or nto wholly or in part under Section 48(2). This view of the meaning of amended Section 48 finds support in the Division Bench decision of the Punjab High Court in Custodian General of Evacuee property v. Jivanlal Verma. Section 48 as amended in 1956 read with Section 10(2)(1) of the Act was also considered by the Supreme Court in Memon Abdul Karim Hari Tayab Central Cutlery Stores v. Deputy Custodian General, and held to authorise the Custodian to recover the amount of actionable claim from the person from whom it was due to the Custodian. It is well known that 'actionable claim' means a claim to any debt which may be proved in a civil Court for obtaining relief against the debtor. It is defined in similar terms in Section 3 of the Transfer of Property Act. An actionable claim need nto be always a sum certain. At any rate, the debtor can dispute the amount claimed and the Court will determine the exact amount due under such a claim. The Custodian in the present case, has been reasonable in asking the appellant only to render accounts of the rents and the profits of the property so that the shares due to the evacuee beneficiaries therein prior to 15th November, 1960 may be recovered from him by the Custodian. The conduct of the appellant has been highly unreasonable. The appellant should consider himself lucky that the Government has already generously transferred him the right to manage and administer the interest of the evacuee beneficiaries in the property and that too without any consideration. He has, thus, obtained a great benefit in this respect from the Government. He has, however, been ill advised to contest the claim of the Government to the participation in the rents and profits of the property prior to 15th November, 1960 even though the order, dated l5th November, 1960 expressly reserved this right to the Government and even though the rule embodied in Section 8 of the transfer of property Act shows that a transfer does nto carry with it the right to the past profits of the property. It is because he tried to shield himself behind technicalities in saving that the Custodian was nto entitled to demand accounts of the property from him that the Custodian was driven to make a demand for a sum certain from him so that the demand may be covered even by the word 'sum'' used in Section 48 which according to the appellant means only a sum certain, if the appellant were, however, to be reasonable, the Custodian would certainly hold an enquiry as to what amount is due in this respect from the appellant. The learned counsel for the appellant also objected to the Accountant in the Office of the Custodian making the demand on the appellant. The Accountant is obviously a subordinate of the Custodian and a part of the latter's office. He has no statutory authority to make the demand himself, but is obviously acting for the Custodian. The second contention of the appellant is, thereforee, also devoid of merits. .

(6) In view of the above findings, the appeal is dismissed with costs. The oral prayer of the learned counsel for the appellant that the case be certified to be fit for appeal to the Letters Patent Bench of this Court is also rejected, in-as-much-as the appellant's first contention is contrary to the language of the order dated l5th November. 1960 and the principle underlying Section 8 of the Transfer of property Act, while his second contention is negatived by the decisions of the Supreme Court and the Punjab High Court cited above and by the clear words of Section 10-A and Section 48 of the Act as amended in 1956.


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