Avadh Behari Rohatgi, J.
(1) This case is a good example of law's delay. This writ petition under Articles 226 and 227 of the Constitution was filed on 13th January, 1969 by Smt. Tej Kaur. She imp leaded the following respondents to the petition : (1) Appellate Officer under the Evacuee Interest (Separation) Act, 1951; (2) Competent Officer under the Evacuee Interest (Separation) Act for the State of Uttar Pradesh, Lucknow (U.P.); (3) Custodian of Evacuee Property for the State of Uttar Pradesh, Lucknow (U.P.); (4) Sulakhan Singh. On behalf of respondents I to 3 a reply was received from the Office of the Chief Settlement Commissioner dated 21st March, 1969 that the department was not interested in contesting the case. So no one appeared on their behalf at the hearing. Sulakhan Singh was served. He appointed a counsel. The case was heard by Sachar, J. on September 18, 1978. At the hearing no one appeared on behalf of the respondents. Even counsel of Sulakhan Singh did not appear. The learned judge heard Mr. P. N. Talwar, on behalf of the petitioner Tej Kaur. He immediately pronounced the Order. He allowed the petition and remitted the case to the competent officer. This was his Order on September 18, 1978.
(2) Nothing happened for three years. Now the heirs of Salakhan Singh have made an application for setting aside the order of Sachar, J. on the ground that their father had died in April, 1978, that is 5 months before the hearing before Sachar, J. The death of Sulakhan Singh in April, 1978 is not disputed. Tej Kaur must have known about his death. Tej Kaur is the wife of Sulakhan Singh's brother. Tej Kaur's husband is Makhan Singh. Sulakhan Singh was his real brother. Anyhow the fact remains that on the date of hearing Sulakhan Singh was dead. There is some controversy whether the advocate of Sulakhan Singh was dead or alive on the date of heaiing. It is admitted that he has died. Whether he was alive in September, 1978 we do not know. The crucial fact is that Sulakhan Singh had died before the case was heard. If Sulakhan Singh was the contesting respondent as he was, any judgment given without making his legal representatives parties must be vacated on the short ground that the judgment is a nullity. The. contesting party was dead on the date of the hearing. So on this ground I set aside the order of Sachar, J. dated September 18, 1978.
(3) Now Tej Kaur has imp leaded the heirs of Sulakhan Singh in place of the deceased. They are his widow, three sons and two daughters. Mr. Jagdeep Kishore appears on behalf of them all. Two of the heirs are minors. They are Onkar Singh and Jaswant Singh. An application under Order 32 Rule 7. Civil Procedure Code. has been made by their elder brother Gurcharan Singh for appointment as their guardian. He has no interest adverse to that of the minors. Tej Kaur does not oppose this application. I, thereforee, allow the application and appoint Gurcharan Singh as the guardian ad item of the minors Onkar Singh and Jaswant Singh,
(4) The point at issue in this case is a short one though it has taken 13 years to decide. There is a house situated in Shahjahanpur bearing No. B-1 204. It was owned by Sardar Ahmed Khan. On his death his son Musahib Khan, his widow Afsari Begum, and his daughter Anwari Begum, succeeded to the property left by him. After the partition of the country, the son Musahib Khan migrated to Pakistan. He became an evacuee. His mother Afsari Begum and his sister Anwari Begum stayed in India. On the migration of Musahib Khan his share in the house vested in the Custodian. The Custodian filed information before the competent officer under the Evacuee Interest (Separation) Act, 1951 (the Act) for the separation of the evacuee interest from the interest of the non-evacuee. Their shares were determined. Non-evacuee share was found to be 1780, while the evacuee share was determined as 6380. This was done by the Custodian. This determination is not disputed. The only question remained is of separation of interest of the evacuee from that of the non-evacuees.
(5) Before their interests were separated Tej Kaur, the present petitioner, purchased the share of the non-evacuees, Afsari Begum and Anwari Begum, by a registered sale deed dated 22nd August, 1967. thereforee the name of Tej Kaur was substituted in place of non-evacuees. Now there were two parties on the scene. One was Tej Kaur, the purchaser of non-evacuees interest. She was a co-sharer in the property. The other was the custodian of evacuee property in whom the share of the evacuee had vested. He was the other co- sharer of the property. Tej Kaur submitted that the interest of the evacuee may be transferred to her and that she was prepared to pay Rs. 10,000 to the custodian on account of the evacuee share in the property. She estimated the value of the entire property at Rs. 15,000. For 63180 she offered to pay Rs. 10,000 to the custodian. This was her case before the Competent Officer.
(6) Sulakhan Singh was a rival claimant to the property. He was the allottee of this property. He represented to the authorities that the property may be transferred to him. On this the Custodian reported the value of the entire property as Rs. 7638. The Competent Officer by order dated 6th August, 1968 held that the value of the property was Rs. 7638. He accepted this value for two reasons. Firstly for the reason that Afsari Begum the original claimant before the transfer of the property to Tej Kaur had assessed the value of the property at Rs. 7,000. Subsequently, she transferred her share and the share of her daughter that is, the entire non-evacuee share, so to speak, to Tej Kaur for Rs. 1500. This share was 17180, as we have seen. The Competent Officer on the basis of these two considerations worked out the value of the entire property at Rs. 7059. Then he took the rent of the house into consideration. The property was allotted to Sulakhan Singh at Rs. 15 per mensem. He multiplied the monthly rental for a period of 40 years. He arrived at the figure of Rs. 7200. So he thought that Rs. 7638 was more or less fair value of the property as estimated by custodian.
(7) Now there is Rule 11 framed under the Act. Subclause (2) of Clause (b) of that rule says that the property should be transferred to a displayed person allottee if the evacuee share is one half or more than one half and the value of the property is Rs. 15,000 ore less. The Competent Officer found that the interest of the evacuee was more than one half because it was 63180. He also found that the value of the property was less than Rs. 15,000. He thereforee came to the conclusion that Sulakhan Singh had a preferential right to the property. He accordingly ordered that if Sulekhan Singh paid Rs. 7538 on account of the value of the house the same shall be transferred to him. If he failed to do so the property will be transferred to Tej Kaur on her paying for the evacuee share. This was his decision.
(8) From this order of the Competent Officer Tej Kaur appealed to the Appellate Officer. Her main grievance in appeal was that the value determined by the Competent Officer was erroneous. She contested his valuation of the entire property at Rs. 7638. The main ground of contest was this. She said that she was prepared to purchase the evacuee share, that is 63180 at Rs. 10,000. This was her offer to the Competent Officer. Now she increased her officer. She said to the Appellate Officer that she was prepared to pay as much as Rs. 16,000 to the Custodian on account of the evacuee share, 63180. The Appellate Officer did not agree. He rejected the offers of Tej Kaur. He affirmed the order of the Competent Officer holding that the value of the property had rightly been assessed by the Competent Officer at Rs. 7638. As a result he dismissed the appeal by his order dated 29th October, 1968. Against these orders Tej Kaur brought the present petition.
(9) The single question in the case is whether the property in question has been rightly valued. Section 8 of the Act provides: 'S.8 Decision by Competent Officer -(1) On receipt of a statement of claim under section 7, the Competent Officer shall, subject to the provisions of sub-section (2) and (3), hold an inquiry into the claim in accordance with the procedure laid down in section 17 and pass an order determining the interest of the evacuee and the claimant in the property in question and the order shall contain all or any of the following particulars, namely: (a) the money value of the property; (b) in any case where the evacuee and the claimant are co-sharers or partners, their respective shares in the property and the money vlaue to such shares.
(10) The first thing that the Competent Officer has to do is to determine the interest of the evacuee and the claimant in the composite property. This has been done. The interest of the evacuee is 63180.the interest of Tej Kaur, claiment, is 17180. About this there is no dispute After this has been done the Competent Officer has to determine 'the money value of the property' and the value of the respective shares of the evacuee and the non-evacuee. Thereafter he must proceed to separate the interest of the evacuee from that of the non-evacuee in the composite property. Section 10 provides the procedure. In so far as it is relevant it says :
'S.10 Separation of the interest of evacuees from those of claimants in composite property. Notwithstanding anything to the contrary 'in any law or contract or any decree or order of a civil court or other authority, the competent officer may subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purposes of separating the interest of the evacuee, from those of the claimants in any composite property, and in particular may, (a) in the case of any claim of a co-sharer or partner (i) direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a Civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the Civil Court; or (ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or (iii) sell property and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or (iv) partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and claimant to the Custodian and the claimant respectively.'
(11) Now this is a case of co-sharers. The custodian can pay to the claimant Tej Kaur to money value of her share in the composite property. Or the claimant can pay to the custodian the money value of the share of the evacuee. In the first case the property shall be transferred to the custodian. In the second case the property will be transferred to the claimant. The principle of section 10(a)(i) is that in the case of co-sharers one can buy out the other. But this can be done after the money value of the property has been determined. It is at this stage that the dispute has arisen in this case. The authorities under the Act valued it as Rs. 7638. The case of Taj Kaur has throughout been that in the case of a co-sharer one is entitled to buy out the other by making bids or offers. Her first offer was for Rs. 10,000. She made it in writing to the Competent Officer. Before the Appellate Officer she raised it to Rs. 16,000 This means that she was prepared to buy out the custodian by paying him Rs. 16,000 for his 63 [80 evacuee interest. But the authorities have rejected this offer too. They valued the entre property at Rs. 7638. This determination is incomprehensible to him. The claimant is prepared to buy out the custodian by paying him Rs. 16,000. Why should that be not accepted It is one thing to say that the vaule of the evacuee share is more than Rs. 16000 and thereforee not acceptable to the Competent Officer. It is quite another to undervalue it deliberately so that allottee gets it in complete disregard of the non-evacuee's rights in the property. The value cannot be less if one co-sharer is prepared to pay more han Rs. 7638.
(12) The decision of the authorities has been coloured mainly by one factor and that is the right of Sulakhan Singh to the transfer of this property. It is not disputed that he is a direct allottee. It is not disputed that he pays Rs. 15 per month to the custodian. But the question is whether the interest of an allottee can be taken into account in determining the money value of the property' as required by section 8. Rule 11(b) figures prominently in both the orders under challenge. The Competent Officer as well as the Appellate Officer said that Tej Kaur was evaluating the property at Rs. 10,000 and Rs. 16,000 in order to oust Sulakhan Singh from the field of competition. But that is hardly a ground to value the property at Rs. 7638 The first thingfor the authorities to do is to determine the money value of the property. After that has been done and it is found that the value of the property is more than Rs. 15.000- then the property may be partitioned or sold. If the property is of the value of Rs. 15,000 or less than it may be transferred to the allottee. Otherwise not. The application of rule 11 (b) depends on the determination of the money value of the property under section 8. The authorities have done it the other way. They have first looked at rule ll(b). In order to protect the interest of the allottee they determined the value of the property under section 8 at Rs. 7638. This is putting the cart before the horse. This is not the method of valuation of the property envisaged by the Act. First the money value of the property has to be ascertained and thereafter the mode of separation indicated in rule 11 has to be followed. If the value is found to be Rs. 1.5,0001- or less the allottee shall be entitled to the property. But that is not a ground to value it less so that the allottee gets it. If one co-sharer is prepared to pay more than Rs. 7638 there is no reason why the co-sharer's offer should not be accepted. This seems to me absurd. Not only absurd, but quite unjust. The custodian had estimated the value of the property at Rs. 76381. This was accepted by the Competent Officer as well as the Appellate Officer. But they were not bound to do so. The custodian is a party to the dispute. He is a co- sharer. He can make an offer but he cannot dictate. It is the duty of the Competent Officer to evaluate the property according to the well known principles of valuation. What is meant by the 'money value' of the property is the market value of the property. 'Money value' means the amount of money which the property will command in exchange, if sold. It is the purchasing power of the property. This is differently described as salable value, actual value, market value, fair value, reasonable value and cash value. They mean the same thing here. The market value means the value which a willing purchaser is prepared to pay for the property. What a willing purchaser will give for a property under fair market conditions is market value. The claimant Tej Kaur is a willing purchaser. Why should her offer bo rejected, as has been done here. I have not been able to understand. Open market simply means that a market has to be assumed from which no purchaser is excluded.
(13) Mr. Kishore has not been able to give any cogent reason why the offer of a co-sharer should be rejected when she is prepared to pay more than what was thought to be the value of the property by the Custodian. Counsel's main argument is that the court should not interfere with the valuation arrived at by the authorities under the Act. He has referred me to Sattanarayan v. Mallikarjun, : 1SCR890 , K.B. Lal & Co. v. Assessing Authority, Sangrur, Air 1976 Sc 2372 Chetkar v. Viswanath Air 1976 Sc 1832, State of Orissa v. Murlidhar, Air 1963 Sc 404, M. Prasad vo. Suresh Singh : (1976)IILLJ381SC and Dlf Housing Construction (P) Ltd. v. Delhi Municipal Corporation : AIR1976SC386 . I need not discuss these authorities. The present is a case where the authorities under the Act have not followed the law. The valuation made by the authorities is arbitrary and whimsical No good reason has been given why the offer of the claimant Tej Kaur should be rejected. That Sulakhan Singh should get the property and thereforee it should be valued at less than Rs. 15,000.00 is not a relevant consideration, in determining the market value of the property. If the adjudicating tribunals adopt wrong principles of valuation or do not follow the law this court will interfere with their decision.
(14) The decision of the authorities in this case is plainly against the law and common sense. This is eminently a fit case for interference by the court. Otherwise the effect of their decision will be to confiscate the share of the claimant at an arbitrary value fixed at the will and whim of the authorities. Section 8(a) does not enact a confiscatory legislation. The law says that the money value of the property should be determined according to the principles of valuation so that the rights of the claimant and the custodian do not suffer. The value must be fair, just and reasonable. The property must not be undervalued nor overvalued. Valuation of anything is an estimate of the value of that thing in terms of money. 'A price is a fact and a value is an esti- mate of what that price ought to be.' 'Valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed it is possible' [Gold Coast Selection Trust Ltd. v. Humphry (1978) Ac 459 per Viscount Simon.
(15) For these reasons the writ petition is allowed. The orders of the Competent Officer dated 6-8-68 and the Appellate Officer dated 29-10-68 are quashed. The matter is remitted to the Competent Officer, U.P. Lucknow to determine the money value of the property afresh under section 8(i) in the light of the observation made in this judgment. The claimant Tej Kaur will be entitled to make an offer. So will the custodian. Mr. Talwar on behalf of Tej Kaur says that she stands by her offer of Rs. 16000- which she made at the stage of the appeal before the Appellate Officer. Of course if she wants to raise her offer further it will be open her to do so. The parties are however, left to bear their own costs.