1. C. F. A, No 665/60 is an appeal filed by the original plaintiffs whose suit against the Custodian, Evacuee Property, the Competent Officer (Evacuee Interest Separation) and six others was dismissed by the learned Extra Assistant Judge, Madhya Saurashtra, Gondal, who decided the suit on preliminary grounds. The suit was for a declaration that the plaintiffs are the heirs of one deceased Memon Karim Ibrahim, who had property at Upleta. The suit was based on a will said to have been executed by the deceased in favour of plaintiff No. 1, his widow. In the plaint the plaintiffs had stated that in respect of the property there were proceedings before the Custodian of Evacuee Property and also the Competent Officer. The two properties were sold for Rs. 22,500/- and Rs. 2050/-and it is stated in the plaint that these moneys are lying with the Custodian, Evacuee Property at Rajkot The plaintiffs filed the suit for a declaration that they are the sole heirs of the deceased Memon Karim Ibrahim and for an injunction to restrain the Competent Officer and Custodian of Evacuee Property from parting with the moneys realised by them by the sale of the properties of the deceased. Plaintiff No. 1 is the widow of the deceased and plaintiff No. 2 is the son of the deceased. In the written statement it was contended that the deceased had not executed a will, that the said will was not legal under the provisions of the Mahomedan Law, that the defendants are entitled to their share in the sale proceeds as decided by the Competent Officer, that the suit is premature, that the suit could not be filed unless probate was obtained, that the Court had no jurisdiction under the provisions of Section 46 of the Evacuee Property Act, and that the Court also had no jurisdiction in view of the provisions of Section 20 of the Evacuee Interest (Separation) Act. Respondents Nos. 1 and 2 contended that the suit is bad as notice required by Section 80, Civil Procedure Code had not been given to them.
2. The trial Court framed preliminary issues. On these preliminary issues, the learned Extra Assistant Judge held that probate should have been taken of the will, that the will must be proved before the plaintiffs could have filed the suit on the basis of the said will, that the suit is premature, that no notice was given as required by Section 80, Civil Procedure Code, and that the Court had no jurisdiction. As the findings on the preliminary issues were against the plaintiffs, the learned Judge, dismissed the suit with costs. The original plaintiffs have now come in first appeal, and it is contended that the findings of the learned Judge on the preliminary issues are erroneous and the suit should be ordered to be heard and decided. The questions that arise in this First appeal are whether the trial Court erred in holding (1) that the will must be proved by probate before the plaintiffs could file a suit on the basis of the said will; (2) that notice was necessary under Section 80, Civil Procedure Code, to the Custodian of Evacuee Property and also to the Competent Officer and that as such a notice was not given the suit was bad and (3) that the Court had no jurisdiction.
3. We agree with the finding of the learned Judge that the civil Court had no jurisdiction to entertain the suit, although we do not agree with the findings on the other preliminary issues.
4. The first question relates to whether the plaintiffs can file a suit on the basis of a will without obtaining a probate of the said will. The absence of the probate of a will is never a bar to entertaining the suit. The suit might fail on the ground that the will is not proved. The question of the proof of a will is a matter of evidence and cannot bar the Court from entertaining the suit. Even as regards the view that probate was necessary, the learned Judge appears to have overlooked the provisions of Section 213 of the Indian Succession Act. Sub-section (1) of that section provides:
'No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.'
Rut, Sub-section (2) provides that this section will not apply in the case of wills made by Muham-madans. As the instant case relates to the will of a Mahomedan, Sub-section (1) of Section 213 will not apply, and the right of the legatee can be established in any Court of justice without obtaining the probate of a will. The same view has been taken in Sakina Bibi v. Mahomed Ishak, ILR 37, Cal 839. The learned Extra Assistant Judge should not therefore have held the first preliminary issue against the plaintiffs,
5. The second preliminary issue relates to whether a notice is necessary under Section 80, Civil Pro. Code to defendant No. 1, who is the Competent Officer under the Evacuee Interest (Separation) Act, 1951, and to defendant No. 2, who is the Custodian of Evacuee Property. Admittedly, these two defendants are public officers and there is no dispute is regards this point. Section 80, Civil Pro. Code provides that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered or left at the office of the persons described in that section, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. The section, therefore, provides that a notice is necessary, when a suit is instituted; against a public officer in respect of any act purporting to be done by such public officer in his official capacity. As defendants Nos. I and 2 are public officers, this is no doubt a suit against two public officers. The question is whether this is a suit in respect of any act purporting to be done by such public officers in their official capacity. Relying on Damodar Jagjivan v. Govindji AIR 1923 Bom 392, it was contended by the learned counsel for the appellants that the present suit is a suit for injunction and that in the case of a suit for injunction, Section 80, Civil Procedure Code has no application. But, in Bhagchand v. Secy. of State, AIR 1927 PC 176, their Lordships of the Privy Council observed that a notice under Section 80 is necessary in the case of suits against officials for acts purporting to be done in the discharge of their duties even when part or whole of the reliet claimed is a perpetual injunction. In the case before their Lordships it was a common ground that Section 80 C. P. Code applied and the only question was as to its effect when applied. Relying on certain English cases the Bombay High Court held in Naginlal v. Official Assignee, ILR 37 Bom 243, and Secy of State v. Gulam Rasul, ILR 40 Bom 692 : (AIR 1916 Bom 296), that if the immediate result of the Act of a public servant would be to inflict irremediable harm, Section 80, C. P. Code, does not compel the plaintiff to wait two months before bringing his suit, though, if nothing is to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies. Their Lordships overruled this view of the Bombay High Court and observed that Section 80 C. P. Code is express, explicit and mandatory, and it admits of no implications or exceptions, and that a suit in which inter alia an injunction is prayed is 'still a 'suit' within the words of the section. They also observed that though the act to be restrained is something apprehended in the future, the act alone in respect of which the suit lies, if at all, is the order already completed and issued. Their Lordships were dealing with a case In which a permanent injunction was prayed for in respect of some act already done by a public officer.
6. It is therefore clear that the words 'purporting to be done by such public officer' in section 80, C, P. Code, refer to some act already done by the public officer. The word 'purporting' in Section 80, C. P. Code, also makes it clear that that section refers to an act done by a public officer. It is also clear from the decision of their Lordships of the Privy Council in Revati Mohan Das v. Jatindra Mohan Ghosh, 61 Ind App 171 , where they observe as follows;
'In the case of a suit against a public officer it is only when the plaintiff complains of some act purporting to have been done by him in his official capacity that notice is enjoined.'
7. In , their Lordships repelled the argument that in certain cases if a permanent injunction is prayed against a public officer. Section 80 C, P. Code may not be applicable. They held that Section 80 is express, explicit and mandatory and it admits of no implications or exceptions.
8. We have to See whether these principles are applicable to the instant case. If we look at the plaint in the instant case, it is clear that in the plaint no act of either defendant No. 1 or defendant No. 2 is being challenged. The plaintiffs do not seek to set aside any Order of either defendant No. 1 or defendant No. 2 or 'to declare illegal any of the acts of either defendant No. 1 or defendant No. 2. It merely seeks an interim injunction pending the disposal of the suit to restrain defendants Nos. 1 and 2 from parting with certain moneys. An interim injunction can always be prayed for even after the suit is filed. The present suit is not a suit For permanent injunction. These facts are conceded both by the learned counsel for the appellants and the learned counsel |for the respondents. The suit which is not in respect of any act done by a public officer and in which no act of a public officer is either challenged or sought to be set aside is not a suit to which Section 80, C. P. Code, can apply. Even if the prayer for injunction is deleted from the plaint, the plaintiff could have applied for a temporary injunction after the suit was filed and during the hearing of the suit. We are, therefore, of the opinion that Section 80, C. P. Code is not applicable and the suit is not bad on the ground that no notice had been given to defendants Nos. 1 and 2.
9. But the more formidable contention is that relating to jurisdiction. It is contended that Civil Courts are barred from entertaining a suit like the present one by the Administration of Evacuee Property Act, 31 of 1950, which will hereinafter be referred to as the Act of 1950 and the Evacuee Interest (Separation) Act No. 64 of 1951 which will hereinafter be referred to as the Act of 1951. The question of the bar of jurisdiction was raised under Sections. 17, 28 and 46 of the Act of 195ft and Sections. 18 and 20 of the Act of 1951. Section 17 of the Act of '950 has no bearing on the question of jurisdiction, because it merely exempts evacuee property from the process of Court etc. Section 28 of the Act of 1950 runs as under;
'Save as otherwise expressly provided in this Chapter, every order made by the Custodian-General, District Judge, Custodian, Assistant Custodian, authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original Suit, application or execution proceeding.'
10. Section 46 of the said Act runs as follows: 'Save as otherwise expressly provided in this Act. no civil or revenue Court shall have jurisdiction;
(a) to entertain or adjudicate upon any question whether any property or any right to or intrest in any property is or is not evacuee property; or
* * * *(c) to question the legality of any action taken by the Custodian General or the Custodian under this Act; or
(d) In respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine.'
It is clear from these provisions that the suit in the instant case is not a suit of the nature contemplated in Section 46 because in the plaint no action of the Custodian of Evacuee Property is questioned. It is also not contended that a certain property is or is not an evacuee property. The suit also does not relate to any matter which the Custodian General or the Custodian is empowered to determine under the Evacuee Act of 1950. The Act of 1950 does not bar the present suit.
11. We now turn to Sections. 18 and 20 of the Evacuee Interest Act of 1951. These sections run as follows:
'18. Finality of orders-- Save as otherwise expressly provided in this Act, every order made by any appellate officer or competent officer shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceedings.'
20. Jurisdiction of civil Courts barred in certain matters.-- (1) Save as otherwise expressly provided in this Act, no civil Or revenue Court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the competent officer is empowered by or under this Act to decide, and no injunction in respect of any action or to be taken by the competent officer in respect of the composite property shall be granted by any civil Court or other authority.
(2) All suits and proceedings pending betore a civil or revenue Court at the commencement of this Act shall, in so far as they relate to any claim filed before a competent officer under Section 7, be stayed during the pendency of any proceeding under this Act.
(3) Nothing in Sub-section (1) shall prevent any civil or revenue Court from entertaining any suit or proceeding relating to any right in respect of any payment made, or property transferred or delivered, to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the payment is made or the property is delivered or transferred.' Hero again Section 18 of the Evacuee Interest Act has no application, because in the plaint no order passed by the Competent-Officer or the appellate ofiicer under the Evacuee Interest Act of 1951 is challenged or called in question.
12. Sub-section (1) of Section 20 of the said Act provides that no civil or revenue Court shall entertain a suit or proceeding in so far as it relates to any claim to composite property which the competent officer is empowered by or under the Act to decide, and no injunction in respect of any action or to be taken by the competent officer in respect of the composite property shall be granted by any civil Court or any other authority. The first part of Sub-section (1) of Section 20 of the Evacuee Interest Act of 1951 therefore prohibits civil and revenue Courts from entertaining such suits. The second part of the section contains no such bar or prohibition, but merely provides that no Court should grant an injunction of the type mentioned in it. The second part does not say that no suit for an injunction shall be entertained by any civil or revenue Court. It does not bar suits but only the granting of certain reliefs. Even in suits which are not barred by the first part of Sub-section (1), the Court has to refuse the grant of injunction on the ground that under the second part of Sub-section (1) of Section 20 of the Evacuee Interest Act of 1951 the Civil Court is prevented from granting an injunction of the type mentioned therein. The second part of Sub-section (1) therefore does not come in the way of the plaintiffs.
13. The next question is whether the first part of Sub-section (1) helps the defendants and places a bar on the jurisdiction of civil Courts. This first part of Sub-section (I) provides that no civil or revenue Court shall entertain any suit or proceedings in so far as it relates to any claim to composite property which the competent officer is empower-, ed by or under this Act to decide. On the question of jurisdiction, it is contended by the learned counsel for the appellants that as the defendants are claiming that the suit is barred, it is for them to prove that Sub-section (1) of Section 20 of thd Evacuee Interest Act of 1951 applies and that the burden of proof of showing that the Civil Court has no jurisdiction is on the defendants. The question of jurisdiction may arise in two ways. It may be contended that no civil Court has jurisdiction. Secondly, it may some time be urged that although civil Courts have jurisdiction, a. particular civil Court has no jurisdiction. Order 7, Rule 1, Civil Procedure Code provides that amongst other particulars, the plaint shall contain the facts showing that the Court has jurisdiction. Ordinarily, civil Courts have jurisdiction to entertain civil suits, and if it is contended by a defendant that no civil Court has jurisdiction, it is for the defendant to show how no civil Court can entertain the suit in question. Section 9, Civil Procedure Code, provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred. If it is alleged by any defendant that there is an express or implied bar to such suits, it is for the defendant to show that there is such a bar. The same view has been taken in Jagannatha Charyulu v. Kutumbarayalu, ILR 89 Mad 21: (AIR 1915 Mad 738), by a Division Bench, in which it is held that a party seeking to oust the jurisdiction of ordinary civil Courts must establish his right to do so.
14. It is therefore contended by the learned Icounsel for the appellants that it is for the defendants to prove that the suit is of the nature falling within the purview of first part of Sub-section (1) of Section 20 of the Evacuee Interest Act of 1951 He also contends that the suit does not relate to the immovable property of the deceased Karim Ibrahim and that even if the immoveable property of the deceased may have been composite property under thc Act of 1951, the property had been sold and the sale proceeds of the said property would not be composite property. Two views can be taken on this question whether the sale proceeds of composite property under the Act of 1951 would be composite property under the said Act. But it is not necessary to decide this question, because in either view the first part of Sub-section (1) of Section 20 would be applicable to the facts of this ease, because whether or not sale -proceeds of composite property would also be composke property the suit relates to a claim to composite property. It is common ground between the parties that there were proceedings before the Custodian of Evacuee Property in respect of the property of the deceased and also before the Competent Officer under the Evacuee Interest (Separation) Act, 1951. In fact, the judgment of the Appellate Officer under the Evacuee (Interest) Act of 1951 has been produced and referred to by the learned counsel for both sides. In the plaint it is stated that the judgments of the two officers have been attached to the plaint; one is a judgment of the competent officer, Evacuee Interest Separation, in claim case No. 83 of 1953 and the second judgment is by the appellate-officer against the first judgment. It is clear therefore that in respect of the immovcable properties of the deceased there were proceedings under the Evacuee Act of 1950 treating them as Evacuee properties and under the Evacuee Interest Act of 1951 treating them as composite properties under the Act of 1951. In the plaint, it is also stated that these properties had been sold for Rs. 22,500/- and Rs. 2050/-, and a declaration is sought in respect of ownership of the property and a temporary injunction is sought in respect of the sale proceeds referred to above. The claim to the sale proceeds rests on the claim to the immoveable properties. In the plaint the plaintiffs' claim is for declaration that they are entitled to the entire immoveable property of the deceased by virtue of a will and that therefore they are also entitled to the whole of the sale proceeds of this property. The claim of the whole or portion of the sale proceeds rests on their claim to the whole or portion of the property of the deceased. In this view, the instant suit is a suit which relates to a claim to composite property which the competent officer is empowered by and under the Act of 1951 to decide. It is therefore clear that Sub-section (1) of Section 20 of Evacuee Interest Act, 1951, applies to the instant suit and bars the civil Court from entertain-i ing it. But the bar does not operate where it Is so expressly provided in the Act. Sub-section (3) of Section 80 permits civil Courts from entertaining suits of a certain stated description. This Sub-section (3) has no application to the present suit, because the suit is not in respect of any payment made or property transferred or delivered to a claimant. If a suit of the nature referred to in Sub-section (3) is filed, then there would be no bar to the jurisdiction of a civil Court. But, as Sub-section (3) has no application to the present suit by reason of the fact that the plaintiffs have filed a suit before any payment was made to the claimant and before any property was transferred or delivered to a claimant. The exception contained in Sub-section (3) has therefore no application. For the reasons already given, Sub-section (1) of Section 80 of the Evacuee Interest Act of 1951 bars the jurisdiction of civil and revenue Courts in regard to such a suit, as it relates to a claim to composite property. We, therefore, hold that in view of first part of Sub-section (1) of Section 80 of the Evacuee Interest Act of 1951, civil Courts are barred from entertaining the suit of the type now filed. The learned Extra Asst. Judge was therefore right in deciding the question of jurisdiction against the plaintiffs. The appeal is therefore dismissed.
15. Civil Application No. 817 of 1960 has been filed by the learned counsel for the appellants for allowing, additional evidence in appeal, namely a certificate issued by the Assistant Custodian of Evacuee Property, Madhya Saurashtra, Rajkot, on 16-3-50 stating that Bai Jilekha widow of Memon Karim Ibrahim of Upleta is not declared as evacuee, that she is not declared an intending evacuee and that there is therefore no bar to her mortgaging her properties for the purpose of her maintenance. We dismiss this application for two reasons. Firstly, we are not concerned with the status of Bai Jilekha, the widow of Memon Karim Ibrahim as non-evacuee in this appeal; and secondly although Memon Karim Ibrahim was declared evacuee in 1951, this certificate is sought to be produced in 1960. It could have been produced much earlier, and there is no reason to allow at this stage the production of this certificate in evidence. We do not see any necessity for referring to this certificate for the purpose of our judgment. We therefore reject this application.
16. Civil Application No. 468 of 1960 has been filed by Haji Umar Sherif a third party for vacating an interim injunction issued against him pending the appeal. The appeal is dismissed. Therefore the interim injunction granted against Haji Umar Sharif of Upleta is hereby vacated.
17. In view of our judgment in C. P. A. 665/ i960, no order is necessary in C. A. No. 451 of 1960.
18. Rule is discharged in Civil ApplicationNo, 505 of 1960, which has been presented by theapplicants.