Raja Bhanupratap Singh Vs. Assistant
Custodian Evacuee Property U.P  INSC 142 (29 July 1965)
29/07/1965 SHAH, J.C.
CITATION: 1966 AIR 245 1966 SCR (1) 304
R 1968 SC 457 (5,10) R 1976 SC2557 (32)
Administration of Evacuee Property Act (31 of
10(1) and 10(2)(m) and (n)-Scope of.
The appellant was the holder of a money
decree against an evacuee whose property had vested in the Custodian. Under s.
17 of the Administration of Evacuee Property Act, 1950, the property was not
liable to be proceeded against in execution so long as it remained vested in
the Custodian, and the appellant could not take steps to execute the decree. He
therefore applied to the Custodian under s.
10(2)(n) of the Act, for satisfaction of his
claim out of the assets of the evacuee. The application was rejected on the
ground that the Custodian had no power to grant the relief and the order was
confirmed by the Custodian General, in revision.
In his appeal to this Court the appellant
contended that the Custodian should have entertained his claim.
HELD : The orders passed by the Custodian and
the Custodian General must be set aside and the proceeding remanded to the
Custodian to determine the questions, whether in the opinion of the Custodian,
the appellant was entitled to any sum of money out of the funds in the
Custodian's ion and whether, for the purpose of administration and management
of the evacuee property or for enabling him satisfactorily to discharge his
duties under the Act the Custodian should pay the amount claimed. [311 H; 312
A] Section 10(1) of the Act, sets out the powers of the Custodian generally,
and the diverse clauses of s. 10(2) illustrate the specific purposes for which
the powers may be exercised, These clauses are not mutually exclusive. Under
cl. (in), before its amendment by Act 91 of 1956, express power to entertain a
claim for satisfaction of debts due by the evacuee was conferred upon the
Custodian. Clause (n) confers upon the Custodian power, coupled with a duty, to
pay to the evacuee or to any member of his family or to any other person, who
in the opinion of the Custodian is entitled, any sum of money out of the estate
of the evacuee.
'Me words "any other person" are
not restricted to persons who are members of the evacuee's family, but include
other persons as well who are entitled to receive money from the evacuee. Thus,
the power to pay the evacuee's debts was derived both under cls. (in) and (n)
of s. 10(2) Therefore, the deletion from cl. (in) of the Custodian's power to
pay the debts, by the Amending Act of 1956, and the consequential deletion of
r. 22 of the rules framed under the Act, by which a machinery was provided for
exercising that power, did not affect the power which is conferred by s.
10(2)(n) and by s. 10(1). The power to administer, under s. 10(1), is not
merely a power to manage on behalf of the evacuee so as to authorise the
Custodian only to recover and collect the assets of the evacuee; it includes
power to discharge his obligations as well, to pay such debts which, in the
opinion of the Custodian, are binding upon the evacuee. [307 C; 309 C-D; 311
C-E] 305 A decree of the civil court is not decisive of the question whether a
Person making a claim is entitled to the money claimed by him; it is for the
Custodian to determine whether he is so entitled. The Custodian has to form his
"opinion" on this question, and in forming his opinion, he must act
judicially and not arbitrably. [311 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 124 of 1963.
Appeal by special leave from the judgment and
order dated January 22, 1962, of the Deputy Custodian General of India, New
Delhi No. 472/R/UP/1961.
S. S. Shukla, for the appellant.
Gopal Singh and R. N. Sachthey, for the
The Judgment of the Court was delivered by
Shah, J Rani Manraj Koer obtained money decrees in two suits Nos. 9 of 1932 and
42 of 1932 filed by her in the Court of the Subordinate Judge, Lucknow against
Nawab Mohammad Ali Khan Qazilbash Zamindar, Aliabad Estate, in Uttar Pradesh.
From time to time execution applications were
filed by the decree holder against the Zamindar, but nothing was recovered. Rani
Manraj Koer died on October 1, 1941 and the appellant was brought on the record
as her heir and legal representative. Nawab Mohammad Ali Khan Qazilbash also
died and five persons amongst whom was one Nawab Ali Raza Khan were impleaded
as legal representatives in the execution proceedings.
In January 1950 Nawab Ali Raza Khan (Talukdar
of Aliabad Estate) who was substantially the only judgment debtor from whose
estate the amounts due were liable to be recovered migrated to Pakistan and he
was declared an evacuee under the provisions of the Administration of Evacuee
Property Ordinance 27 of 1949 which was later replaced by the Administration of
Evacuee Property Act 31 of 1950. The Custodian of Evacuee Property took
possession of the estate of the evacuee and applied to the Civil Judge, Lucknow
for removal of attachment levied on the estate by the Civil Judge, Bahraich in
execution of the decrees at the instance of the appellant. The Civil Judge,
Lucknow, by order dated July 22, 1950 directed that the "transfer
certificates" issued in the two decrees be recalled and the papers be
consigned to the record. Against the order passed by the Civil Judge, Lucknow
appeals were preferred by the appellant to the High Court at Allahabad. By
order dated February 22, 1960 the High Court held that after the Custodian
entered upon the management of the properties of the evacuee by virtue of S. 17
of the Administration 306 of Evacuee Property Act, so long as the property
remained vested in the Custodian under the provisions of that Act it was not
liable to be proceeded against in any manner whatsoever in execution of any
decree or order of any court or other authority.
On September 27, 1960 the appellant applied
to the Custodian for an order under s. 10(2) (n) of the Administration of Evacuee
Property Act, 1950, directing that his claim for Rs.
1,27,638/2/under the two decrees in suits
Nos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to the
estate of Nawab Ali Raza Khan. The Assistant Custodian General, Evacuee
Property, U.P. Lucknow, exercising the powers of the Custodian rejected the
application holding that he had no power to grant relief to the appellant of
the nature claimed. In exercise of his revisional jurisdiction, the Custodian
General Evacuee Property, New Delhi, confirmed the order, and the appellant
has, with special leave, appealed against that order.
The question which falls to be determined in
this appeal is, whether the Custodian is entitled to entertain the claim of the
holder of a money decree against the evacuee for satisfaction of his dues out
of the assets vested in the Custodian by s. 7 of the Administration of Evacuee
Property Act. The Custodian held that he had no such power, and the Custodian
General agreed with him. Section 10 of the Act deals with the powers and duties
of the Custodian generally.
By sub-s. (1) it is provided :
"Subject to the provisions of any rules
that may be made in this behalf, the Custodian may take such measures as he
considers necessary or expedient for the purposes of securing, administering,
preserving and managing any evacuee property and generally for the purpose of
enabling him satisfactorily to discharge any of the duties imposed on him by or
under this Act and may, for any such purpose as aforesaid, do all acts and
incur all expenses necessary or incidental thereto." Sub-section (2)
"Without prejudice to the generality of
the provisions contained in sub-section (1), the Custodian may, for any of the
purposes aforesaid,(n)pay to the evacuee, or to any member of his family or to
any other person as in the opinion of the Custodian is entitled thereto, any
sums of money out of the funds in his possession." 307 By Subs. (2) of s.
10 specific powers and duties of the Custodian are set out. It illustrates the
general powers and duties under sub-s. (1). The argument that the expression
"any other person" in cl. (n) must be construed ejusdem generis with
"evacuee" or ,.any member of his family" has, in our judgment,
no force. The rule of interpretation ejusdem generis applies where a general
word follows particular and specific words of the same nature as it-self : it
has no application where there is no genus or category indicated by the
Legislature. The clause is intended to confer upon the Custodian power coupled
with a duty to pay to the evacuee or to any member of his family or to any
other person who in the opinion of the Custodian is entitled to any sum of
money out of the estate of the evacuee. The powers of the Custodian and the
duties are undoubtedly to be exercised under sub-s. (2) for the purposes
mentioned in sub-s. (1) i.e. for securing, administering, preserving and
managing any evacuee property and generally for the purpose of enabling him
satisfactorily to discharge any of the duties imposed on him. To ascertain the
limits upon and extent of those purposes, the position of the Custodian qua the
estate of the evacuee vested in him must first be determined. Section 7(1)
allies the Custodian to declare after enquiry any property as evacuee property
within the meaning of the Act, and the property so declared is deemed to vest
in the Custodian from the date specified in s. 8. But the vesting of the
property in the Custodian is for the purposes of the Act i.e. for
administration and management. By the vesting for purposes of the Act the
Custodian does not become the owner of the property : he holds it for the
evacuee and is bound to administer it in the manner provided by the Act. The
appropriation of the property must depend upon statutory provisions enacted by
the Parliament. By s. 17(1) of the Act as amended by Act 22 of 1951 with
retrospective operation it was provided that :
"Save as otherwise provided in this Act
no evacuee property which has vested or is deemed to have vested in the
Custodian under the provisions of this Act shall, so long as it remains so
vested, be liable to be proceeded against in any manner whatsoever in execution
of any decree or order of any court or other authority, and any attachment or
injunction or order for the appointment of a receiver in respect of any such
property subsisting on the commencement of the Administration of Evacuee
property (Amendment) Act, 1951, shall cease to have effect on such commencement
and shall be deemed to be 308 The second part of the sub-section deals with
avoidance of attachment, or injunction or order for the appointment of a
receiver in respect of any evacuee property-subsisting on the date of the
commencement of the Act of 1951, and the first part interdicts recourse to the
evacuee property so long as it remains vested in the Custodian, by process of
any court or authority for obtaining satisfaction of any claim against the property.
It is clear from the language of the, section that whether the claim be against
the evacuee or it is against the Custodian arising out of any acts of
administration done by him, the evacuee property cannot be attached in
execution of any decree or order of any court or other authority. The
Legislature has thereby completely excluded the jurisdiction of courts and
authorities to execute decrees or orders passed against the Custodian or the
evacuee to proceed against the property vested in the Custodian. The intention
clearly is that the administration shall continue for the purposes of the Act
without any interference by the process in execution of the decrees or orders
of courts or other authorities. But it does not appear to be the intention of
the Legislature that the Custodian should be entitled to collect the property
of the evacuee and not be under an obligation to satisfy his debts and
obligations. The argument of counsel for the Custodian that the Custodian is
merely to manage the property and is not invested with power to pay the debts
due by the evacuee or to discharge liabilities of the evacuee is not borne out
by the terms and the scheme of s. 10. The powers conferred and the duties
imposed by S. 10(1) are for the purposes of securing, administering, preserving
and managing the evacuee property, and there is no reason to attribute to the
Legislature an attempt at tautology by assuming that "administering"
is used in the same sense as the expression "managing". Again sub-s. (2)
makes it abundantly clear that the powers conferred and the duties imposed are
not merely incidental to management as a statutory agent of the evacuee. For
instance, upon the Custodian is conferred the power to carry on the business of
the evacuee with all the discretion which the carrying on of the business of
the evacuee may necessitate : he is entitled to complete buildings which are
required to be completed, to keep evacuee property in good repair, and to take
action as may be necessary for the recovery of any debt due to the evacuee :
see cls. (d), (e) and (i) of sub-s. (2) of S. 10.
Power is also conferred upon the Custodian by
cl. (j) to institute, defend or continue any legal proceeding in any civil or
revenue court on behalf of the evacuee : he is given the power to refer
disputes between the evacuee and any other person to arbitration or to
compromise any claims, debts or liabilities on 309 behalf of the evacuee.
Clause (j) implies the power and its concomitant duty to satisfy the claim
which may be determined in any legal proceeding instituted, defended or
continued in any civil or revenue court, or awarded against the evacuee, or
admitted or undertaken by virtue of the compromise. The argument of the
Custodian, if accepted, would lead to the somewhat startling result that a
decree or an award made in favour of the evacuee in a proceeding commenced or
continued by or against the Custodian may be enforced by the Custodian, but the
property of the evacuee remains free from all claims, obligations and
liabilities of the evacuee, even if decreed by a competent court or undertaken
and accepted by him. There is nothing in the statute which compels us to lend
countenance to this inequity. The words used in cl. (n) empowering the
Custodian to pay to "any other person" any sums of money out of the
funds in his possession are not restricted to persons who are members of the
family of the evacuee; they include other persons as well who are entitled to
receive money from the evacuee.
The decree of a civil or revenue court or an
order of any other authority is, it must be observed, not decisive of the
validity or admissibility of the claim against the evacuee property. It is for
the Custodian to be satisfied about the genuineness of the claim. The Custodian
must determine whether a person making a claim against the evacuee is entitled
to the right claimed, and if he is satisfied, the claim may be discharged out
of the funds in his posession .
But by the use of the expression "in the
opinion of the Custodian" it was not intended to invest the Custodian with
arbitrary authority. It is for the Custodian to determine when a claim is made
by the evacuee, or a member of his family or any other person for payment of a
sum of money, having regard to all the circumstances, whether it is genuine and
to satisfy it if in the opinion of the Custodian such a person is entitled to
the payment. Where a claim is made by a person who claims to be a creditor of
the evacuee and he satisfies the Custodian that he is entitled to any sum of
money, then normally the Custodian would be justified in discharging the
obligations of the evacuee out of the funds in his possession.
But counsel for the Custodian relies upon the
terms of 3.
10 (2) (m) as they originally stood before
they were amended by Act 91 of 1956 and the deletion of Rule 22 framed under
the Act, in support of the contention that the Parliament has deliberately
taken away the power to entertain a claim for satisfaction of debts due by the
evacuee. Section 10 (2) (m), as it originally stood, provided:
310 .lm15 "incur any expenditure,
including the payment of taxes, duties, cesses and rates to Government or to
any local authority; or of any amounts due to any employee of the evacuee or of
any debt due by the evacuee to any person." Under Rule 22 made in exercise
of the powers under S. 56 of the Act, provision was made for registration of
claims by persons claiming to receive payment from any evacuee or from any
property of such evacuee, whether in re-payment of any loan advanced or
otherwise, by presenting a petition to the Custodian. Tim Custodian was
entitled to register a claim under cl. (2) where in was supported by a decree
of a competent court or a registered deed executed and registered before
14-8-1947 or by a registered deed executed and registered on or after
14-8-1947, and the transaction in respect of which the deed was so executed and
registered had been confirmed by the Custodian, or where an acknowledgment in
writing was executed by the evacuee himself before the 1st March 1947 or where
such claim was of the nature referred to in the Explanation to sub-rule (1) and
the transfer of property in respect of which the claim was made was a bona fide
transaction. If the claim did not fall under sub-rule (2) the Custodian had to
direct the claimant to establish his claim in a civil court Sub-rules (3) &
(4) provided :
"(3) The mere registration of a claim
shall not entitle the claimant to payment and the Custodian may for reasons to
be recorded refuse payment.
(4)No debt incurred by the evacuee before the
property vested in the Custodian shall be paid without the sanction of the
Central Government or Custodian General." The Explanation to sub-rule (4)
set out cases in which the sanction of the Central Government was not
The Administration of Evacuee Property Act,
1950 was amended by Act 91 of 1956 and the words "or of any amounts duly
to any employee of the evacuee or of any debt due by the evacue to any person"
in s. 10(2) (m) were deleted. The Central Government thereafter issued on
February 20, 1957 an order deleting Rule 22. Relying upon this legislative
development, it was con tended, that an express power to entertain a claim for
satisfaction of debts due by the evacuee was conferred upon the Custodian by s.
10(2) (m) and machinery was provided for effectuating the 311 exercise of that
power in Rule 22, and the Legislature having deleted the clause which
authorised the Custodian to exercise the power to pay debts and the machinery
in that behalf, no such power remained vested in the Custodian.
We are, however, unable to agree that because
of the amendment made in s. 10(2) (m) and the deletion of Rule 22 the power
which is vested in the Custodian under s. 10(2) (n) must be held restricted.
Sub-section (1) of s. 10 sets out the powers of the Custodian generally, and
the diverse clauses in sub-s. (2) illustrate the specific purposes for which
the powers may be exercised, and there is no reason to think that the clauses
in sub-s. (2) are mutually exclusive.
If power to pay the debts was derived both
under cls. (m) & (n) as it appears it was, deletion of the provision which
authorised the Custodian to pay debts due by the evacuee to any person from cl.
(m) and of Rule 22 setting up the machinery for registration of debts did not,
in our judgment, affect the power which is conferred by cl. (n) by sub-s. (2)
and also by s. 10(1). In our judgment, the power to administer is not merely a
power to manage on behalf of the evacuee so as to authorise the Custodian
merely to recover and collect the assets of the evacuee, but to discharge his
obligations as well. The power to administer for purposes mentioned, having
regard to the diverse clauses in sub-s.
(2), includes the power to pay such debts
which in the opinion of the Custodian are binding upon the evacuee.
Specific enunciation of that power in cl. (n)
authorising the Custodian to pay to any other person who in the opinion of the
Custodian is entitled to any sum of money supports that conclusion.
As already observed, the decree of the civil
court is not decisive of the question whether a person making a claim is
entitled to the sum of money claimed by him. It is for the Custodian to
determine whet-her the claimant is entitled to receive the sum of money claimed
by him out of the funds in his possession. He has to form his
"opinion" on this question : of course, in forming his opinion he
must act judicially and not arbitrarily. As the Tribunals below have determined
the claim raised before them only on the question of jurisdiction to entertain
it and not on the merits, we are unable to pass any effective order in favour
of the appellant. The orders passed by the Custodian and the Custodian General
must therefore be set aside and the proceeding remanded to the Custodian to
determine the question whether in the opinion of the Custodian the appellant is
entitled to any sum of money out of the funds in his possession and whether for
the purpose of administration and management of the evacuee property 312 or for
enabling him to satisfactorily discharge his duties under the Act the amount
claimed should be paid.
The appeal is therefore allowed. The
appellant would be entitled to his costs in this appeal from the Custodian.