1. This is an application under Article 226 of the Constitution of India by Raghunandanlal and three others against an order of the Custodian of Evacuee Property, Rajasthan, dated the 2nd December 1950. Jt is alleged by the petitioners that a shop had been mortgaged in favour of Girdharilal the father of the petitioners, by Mohd. Taqi, Kasim Ali, Riazul Hasan, Khurshed Ali and Amjad Ali some time before the year 1941. The mortgagors left India and went to Pakistan. Under Section 4 of the Matsya Evacuee Property Ordinance the equity of redemption which belonged to the Muslim evacuees vested in the Custodian of the evacuee properties and under Section 5 (2) of the Rajasthan Administration of Evacuee Property Ordinance, 1949 any evacuee property which had vested in any person exercising the powers of a custodian under the Matsya Ordinance which had been repealed by the Rajasthan Ordinance is to be deemed' to have vested in the Custodian appointed under the Rajasthan Ordinance. The equity of redemption therefore vested in the Custodian of Evacuee Property, Rajasthan, when the Rajasthan Ordinance came into force. Thereafter, the Rajasthan Ordinance was repealed by the Administration of Evacuee Property Act of 1950 which was enacted by the Parliament.
By Section 8 (2) of the Administration of Evacuee Property Act of 1950 all such property which had vested in any person under the laws repealed by the Act was to be deemed to have been vested in the Custodian appointed under the Act on its commencement. The equity of redemption of the shop in question therefore vested in the Custodian of the Evacuee property appointed under the Rajasthan Administration of Evacuee Property Act. The Deputy Custodian at Bharatpur initiated an enquiry and held that Raghunandanlal and three others were in possession of a shop as mortgagees and the amount of mortgage money was of Rs. 850/- only and that the mortgagors had left India and had gone to Pakistan. He therefore ordered payment of Rs. 850/- to thepetitioners and ordered them to deliver possession to the Deputy Custodian. An appeal was filed against that order to the Custodian, Evacuee property, Rajasthan, at Jodhpur, which was dismissed on the 2nd of December 1950. Steps were thereafter taken by the Deputy Custodian to elect the petitioners from the shop which was in their possession as mortgagees. They however took three days time from the Deputy Custodian to enable them to vacate the shop and in the meantime they have come to this court under Article 226 of the Constitution of India.
The case of the petitioners is that the mortgagee rights relating to the disputed shop were not evacuee property and these rights did not vest in the Custodian under any of the Evacuee Property Acts or Ordinances. The Deputy Custodian or the Custodian therefore had no jurisdiction to order their ejectment. What had vested in the Custodian was the equity of redemption only. The Custodian, if he wanted to take possession of the shop, should have proceeded by way of a regular suit rather than attempting to take forcible possession of the shop. No notice, it is said, was issued under Section 7 of the Administration of Evacuee Property Act and there was no basis for the exercise of any jurisdiction by the Custodian. It is also stated by the petitioners that the Deputy Custodian has put a seal on the lock of the petitioners and thus the petitioners are deprived of the use of the shop. It is therefore prayed by the petitioners that a writ of certiorari, prohibition or Mandamus be issued quashing the order of the Custodian and restraining the Custodian from interfering with the use of the shop by the petitioners. A reply was filed on behalf of the Custodian, Evacuee property of Rajasthan, and it was stated that Section 7 of the Administration of Evacuee Property Act was not applicable to the present case, as this shop had vested in the Custodian under the Matsya Ordinance. It was said that the petitioners did not take any objection as regards the jurisdiction of the Custodian and they are therefore estopped from taking any such plea in this application. It is also said that the petitioners agreed to deliver possession of the shop to the Custodian and they are therefore not within their rights to dispute the validity of the Custodian's order.
2. It is an admitted fact that the shop in question was in the possession of the petitioners as mortgagees and the mortgagors had left for Pakistan. It is therefore clear that the equity of redemption alone could have vested in the Custodian under the Matsya Evacuee Property Ordinance. The mortgagee rights of the petitioners which did not form part of the property of the Muslim evacuees could in no circumstance be considered to be an evacuee property and it could not have vested in the Custodian under the Matsya Ordinance. Similarly, the position of the Rajasthan Evacuee Property Ordinance is not different and the position under the Matsya Ordinance continued to hold good under the Rajasthan Ordinance. Under the Administration of Evacuee Property Act the same position continues. The equity of redemption therefore can be claimed_ to have been vested in the Custodian of the Evacuee property, Rajasthan, and there was no necessity of issuing a notice under Section 7 of the Administration of Evacuee Property Act in so far as the question of the equity of redemption ofthis shop was concerned. However the question of the mortgagee rights is quite different and the Custodian of the Evacuee property, Rajasthan, cannot lay his hands on the mortgagee rights of the petitioners unless a notice under Section 7 of the Administration of Evacuee property Act is issued in proper form and proceedings are taken according to law, provided the Custodian has grounds to think that mortgagee rights are also evacuee property. No notice under Section 7 has been given in this case and obviously the Custodian cannot be said to possess any jurisdiction over the rights of the petitioners. The learned Government Advocate has vehemently argued that the petitioners failed to take an objection relating to the point of jurisdiction in the court of the Custodian or the Deputy Custodian and hence they should not be allowed now to agitate this point. He has referred to A. S. Chaudhri's Book of High Prerogative Writs, 1950 Edition, page 426 under the head 'Acquiescence' wherein two English cases -- 'Dierken v. Philpot', (1901) 2 K. B. 380 and -- 'Giusti Patents and Engineering Works Ltd. v. Maggs', (1923) 1 Ch. D. 515 have been discussed.
3. It may be observed that it is a fundamental rule of law that a judgment of a court without jurisdiction is a nullity, and consent cannot give jurisdiction to the court if it has none. There is however a distinction between the cases of want of jurisdiction and irregularity in the exercise of jurisdiction or irregularity in the assumption of jurisdiction. The leading case on the point is -- 'Ledgard v. Bull', 13 Ind. App. 134 (P.C.) decided by the Privy Council in 1886. In that case the Judicial Committee of the Privy Council held that the suit having been instituted in a court which had no jurisdiction no order of transfer could be made, but that the District Court being competent to entertain and try the suit if it were competently brought, the defendant could waive the objection to the irregularities of its institution, but that he had not done so, and the decree of the District Court could not, therefore, stand and it ought to have been set aside by the High Court.
The principles laid down in -- 'Ledgard v. Bull', were reiterated by their Lordships of the Privy Council in -- 'Meenakshi Naidoo v. Subramaniya Sastri', 14 Ind. App. 160 (P.C.). That was a case in which the High Court of Madras had entertained an appeal from an adjudication from which no appeal was provided for by any enactment. Their Lordships held that the decree of the High Court was a nullity. In the course of the judgment their Lordships said :
'In the present case there was an inherent incompetency in the High Court to deal with the question brought before it and no consent could have conferred upon the High Court that jurisdiction which it never possessed.'
4. There are however certain exceptions to this rule. If the court has no jurisdiction owing to some privilege attaching to a party, the party may waive that privilege. Thus, a defendant may waive his status as an agriculturist. Similarly, an objection relating to the pecuniary jurisdiction of a court under Section 11 of the Suits Valuation Act (VII of 1887) can be waived. The same is the case of an objection regarding place of suing or the local venue of suits within the cognizance ofa court. Such objections can however be waived.
5. In the present case, there is inherent want of jurisdiction in the Custodian and waiver on the part of the petitioners cannot confer any jurisdiction on the Custodian. The objection, therefore, of the learned Government Advocate cannot help the case of the Custodian.
6. The judgment in -- 'Giusti Patents and Engineering Works Ltd. v. Maggs', (1923) 1 Ch. D. 515 also cannot help the case of the Custodian as in that case it was the plaintiff himself who voluntarily sought the exercise of jurisdiction of court and it was held that he could not, then having himself sought the exercise of jurisdiction, be allowed to go back and question the jurisdiction of the court. In the present case, the petitioners never sought the exercise of jurisdiction of the Custodian. The other case in -- 'Dierken v. Philpot', (1901) 2 K.,B. 380 relates to an illegality in the exercise of the jurisdiction. It was not a case of inherent want of jurisdiction. The decision in that case therefore cannot in any way help the opposite party.
7. Even though in the written statement it was mentioned that the petitioners had exhausted all their remedies under the Evacuee Property Act, it was argued by the learned Government Advocate that under Section 26 of the Administration of the Evacuee Property Act the petitioners had a remedy open to them by way of filing a revision petition in the court of the Custodian General of India. It may be pointed out that it is not open to a party to blow hot and cold in the same breath. The case of the opposite party was that the petitioners had exhausted all the remedies and now they cannot turn back and say that a remedy is now open to the petitioners. Furthermore, when it is held that a Custodian had no jurisdiction whatsoever to deal with the mortgagee rights of the petitioners, it cannot be said that the Custodian General would possess jurisdiction to adjudicate upon those rights. A remedy by way of revision, therefore, is no adequate remedy under the circumstances of this case.
8. Lastly, the learned Government Advocate has argued that the petitioners agreed before the Deputy Custodian to deliver possession of the shop within three days. They should therefore not be allowed the indulgence of the exercise of discretion of this court in their favour, because it will amount to a fraud. Mr. Sharma on the other side has said that the Deputy Custodian was taking forcible possession of the shop from his clients and his clients had no other alternative but to give their consent under coercion so that they may get the breathing space to take legal measures against the Custodian. We are of opinion that the consent, if at all given by the petitioners in the present case, cannot be regarded as a free consent. The conduct of the petitioners in giving consent under these circumstances should not be taken into account to deprive them of a remedy under Article 226 of the Constitution of India.
9. We may here refer to a Division Bench decision of this court in -- 'Satya Deo v. Custodian Jodhpur', in C. Writ Appln. No. 66 of 1951, D/- 5-12-1951 (Raj), wherein a similar objection of the opposite party, that because no objection had been raised, relating to the point of jurisdiction before the Custodian, a party could not challenge the exerciseof jurisdiction of the Custodian, before thiscourt, was disallowed.
10. It may further be added that in the present case the mortgagee rights of the petitioners cannot be regarded as evacuee property and consequently there was no case for the Custodian to interfere with the rights of the petitioners. Further, there was no occasion for the Custodian to issue any notice under Section 7 against the petitioners relating to property which was not Evacuee property.
11. This petition succeeds and the order ofthe Custodian dated the 2nd December 1950 isset aside and the Deputy Custodian, Bharatpur, is directed not to interfere with the mortgagee rights of the petitioners otherwise thanin due course of law, and to remove the sealput by him on the shop in pursuance of theorder which has been set aside by this court.The petitioners shall get the costs of this application, including counsel's fee which is fixedat Rs. 50/- from the opposite party.