Har Govind Vs. Aziz Ahmad & ANR 
INSC 171 (8 August 1969)
08/08/1969 GROVER, A.N.
SHAH, J.C. (CJ) RAMASWAMI, V.
CITATION: 1970 AIR 413 1970 SCR (1) 796 1969
SCC (2) 524
Administration of Evacuee Property Act, 1950
(31 of 1950), s. 40--Vendor migrating to Pakistan after transfer of
property--Property not declared evacuee property--Validity of transfer without
confirmation by Custodian--Administration of Evacuee Property Ordinance, 1949
(27 of 1949), ss. 38 and 39.
The first respondent entered into an
agreement to sell his properties to the appellant. Disputes relating to
completion of the sale were referred to arbitration. An award was made
directing the first respondent to execute the documents in respect of the transfer
by him within one month from the date of the receipt of the confirmation or
approval according to law, failing which the appellant was at liberty to get it
executed and registered through court. The award was made a rule of the court
on November 30, 1949 and a decree on the basis of the award was granted. The
first respondent left India 'for Pakistan so.me date after November 22, 1969.
The appellant moved the Deputy Custodian of Evacuee Property for confirmation
of the transfer under s. 38 of the Administration of Evacuee Property
Ordinance, 1949 or under s. 40 of the Administration of Evacuee Property Act,
1950. The Deputy Custodian accorded confirmation, but the Additional Custodian
set aside the order of the Deputy Custodian. The appellant filed an application
for execution of the decree on the 'basis of the award to which objections were
filed by the Custodian.
The District Judge held that on the date of
the decree transfer of properties could not be effected unless confirmed by the
Custodian, The appellant's appeal to the High Court was dismissed. In appeal to
this Court, it was contended that there could be no. bar to. the execution of
the decree based on the award, since the respondent's properties were never
declared to be evacuee properties either under Central Ordinance 27 of 1949 or
Central Act 31 of 1951 and that they did not vest in the Custodian unless they
were so declared after appropriate proceedings.
Dismissing the appeal,
HELD: Under the provisions of s. 38(1) of
Central Ordinance 27 of 1949 and s. 40(1) of Central Act 31 of 1951, transfer
of property was ineffective unless confirmed by the Custodian even if a person
became an evacuee after the date of transfer. It was not necessary that the
property should have been declared or notified to be evacuee property before
those provisions were attracted. [800 D] In the present case the respondent had
become an evacuee within the meaning of s. 2(d) of the Ordinance and the Act.
The Additional Custodian declined to confirm
the transfer made by the respondent and therefore the condition precedent for a
valid transfer remained unsatisfied. Further, even according to the award the
confirmation or approval of the Custodian had to be obtained before the
transfer of documents were to be executed and completed in accordance with law.
It was incumbent on the 797 appellant to obtain the confirmation order before he
could ask for any further steps to be taken by the courts in the matter of
execution and registration of the transfer deed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 381 of 1965.
Appeal by special leave from the judgment and
decree dated May 2, 1961 of the Allahabad High Court in Execution First Appeal
No.10 of 1954.
Naunit Lal, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for the
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Allahabad
High Court confirming the order of the District Judge dismissing an Execution
Application filed by the appellant.
On June 16, 1948 the appellant entered into
an agreement with Aziz Ahmed Khan--respondent No. I--for the sale of certain
properties comprising houses and plots in the town of Bareilley. The sale
consideration of Rs.
1,45,000/was stated have been already paid by
the appellant to the vendor. Subsequently disputes arose between the vendor and
the appellant regarding the completion of the sale. These disputes were refered
to the arbitration of Shri R.R. Agarwal who gave an award on August 30, 1949
which was made a rule of the court on November 30, 1949. A decree on the basis
of the award was granted in favour of the appellant.
Sometimes after November 22, 1949 the vendor
Aziz Ahmed Khan left India for Pakistan. On December 7, 1950 the appellant
moved the Deputy Custodian (Judicial) Meerut Circle for confirmation of the
transfer under s. 38 of the Administration of Evacuee Property Ordinance, 1949,
(Ordinance No. 27 of 1949), or under s. 40 of the Administration of Evacuee
Property Act 1950 (Act 31 of 1950). On 9th May 1951 the Deputy Custodian
accorded confirmation. The Additional Custodian, however, took suo motu action
in exercise of his revisional jurisdiction and set aside the order passed by
the Deputy Custodian. On April 4,. 1952 the appellant filed an application for
execution of the decree passed on the basis of the award. On May 10, 1952
objections were filed on behalf of the Custodian to the execution. The District
Judge held that the award made on August 30, 1949 could not have the effect of
transferring the properties as the approval of the Collector had not been
obtained under the notification dated July 29, 1949 which had been 798 issued
under s. 26 of U.P. Administration of Evacuee Property Ordinance No. 1 of 1949
and that on the date of the decree the transfer of properties could not be
effected unless confirmed by the Custodian. It was further held by him that no
interest by way of charge in favour of the appellant had been created on the
properties in dispute. He was further of the view that s. 17(1) of the Central
Act of 1950 created a bar to execution of the decree. The Execution application
was consequently dismissed.
The appellant filed an appeal to the High
Court which was dismissed. When the appeal came up for hearing before this
Court on February 22, 1968 it was. considered expedient to have further
findings on certain points. The following questions were therefore framed and
remitted to the High Court for that 'purpose.
(1) the date on which Aziz Ahmed Khan
migrated to Pakistan.
(2) whether the properties of Aziz Ahmed Khan
vested in the Custodian of Evacuee Property under U.P. Ordinance 1 of 1949 or
Central Ordinance 12 of 1949 as made applicable to the State of U.P. by U.P. Ordinance
20 of 1949 or under the Central Ordinance 27 of 1949 or under Central Act of
The High Court remitted these matters to the
District Judge. His finding on the first question was that Aziz Ahmed Khan had
migrated to Pakistan on some date after November 22, 1949. On the second
question he found that Aziz Ahmed Khan's properties did not vest in the
Custodian of Evacuee Property under any of the Ordinances or under the Central
Act 31 of 1950. Certain additional evidence was produced before the High Court.
The High Court expressed agreement with the conclusions of the District Judge
on both the points. It may be mentioned that on certain subsidiary points the.
learned District Judge had .also found that it had not been proved that a valid
declaration under s. 7(1) of the Central Ordinance 27 of 1949 or of the
corresponding provision in the Central Act 31 of 1950 was made for declaring
Aziz Ahmed Khan an evacuee. In the opinion of the learned Judge such a
declaration was necessary if his properties were to be declared evacuee
In view of the findings which have been
returned by the High Court on the points referred, it has been contended on
behalf of the appellant that there could be no bar to the execution of the
decree which was based on the award. It is 799 pointed out that on the
conclusions at which the High Court has now arrived the properties of Aziz
Ahmed Khan were never declared to be evacuee properties either under the
Central Ordinance 27 of 1949 or the Central Act 31 of 1950, and they could not
vest in the Custodian unless they had been so declared after appropriate
proceedings. It is urged that the decree in favour of the appellant was of the
nature of a decree passed in a suit for specific performance. The court could
and should have executed d conveyance in favour of the appellant since Aziz
Ahmed Khan was no longer available or was refusing to do so and the
confirmation of the Custodian could be obtained before the registration was
effected. According to the counsel for the appellant the Additional Custodian
had declined to confirm the transfer at the previous stage because there was no
deed of sale or transfer.
Counsel for the respondent has drawn
attention to a decision of this Court in Azimunissa & Others v. The Deputy
Custodian Evacuee Properties, District Deoria & Ors.(1) in which the effect
of the declaration of U.P. Ordinance l of 1949 to be invalid by the courts came
up for the consideration, as also of the subsequent evacuee legislation namely,
Central Ordinance 27 of 1949, Central Act 31 of 1950 and the Administration of
Evacuee Property (Amendment) Act, 1960. It appears to have been held in that
case that the property which had vested under the U.P. Ordinance 1 of 1949
continued to vest in the Custodian notwithstanding the ,fact that the High
Court of Allahabad in Azimunnissa & Ors. v. Assistant Custodian(2) held the
vesting to be invalid. This was the result of the introduction of s. 8(2-A) in
the Central Act of 1931 by the Central Amendment Act I of 960.
In the present case, however, Aziz Ahmed Khan
migrated to Pakistan after November 22, 1949. At that point of time it was
Central Ordinance 27 of 1949 which was in force. It appears highly doubtful
that the respondent could take advantage of the. provisions of automatic
vesting contained in U.P. Ordinance 1 of 1949.
There is, however, a serious hurdle in the
way of the appellant even when the provisions of Central Ordinance 27 of 1949
or the Central Act 31 of 1950 are taken into consideration. Section 38(1) of
that Ordinance provided that no transfer of any right or interest in any
property after the 14th day of August 1947 by or on behalf of an evacuee or by
or on behalf of a person who had become an evacuee after the date of' the
transfer shall be effective so as to confer any rights or remedies on the
parties to such transfer unless it was confirmed by the Custodian. The
provision of s. 40 of the Central Act (1) (1961) 2 S.C.R. 91.
(2) A.I.R. 1957 All. 561.
LI5SupCI/69--7 800 31 of 1950 were similar
though there was a certain change in the language. Sub-section (1) of that
section was in the following terms :-"No transfer made after the 14th day
of August, 1947, but before the 7th day of May 1954, by or on behalf of any
person in any manner whatsoever of any property belonging to him shall be
effective so as to confer any rights or remedies in respect of the transfer on
the parties thereto or any person claiming under them or either of them, if, at
any time after the transfer, the transferor becomes an evacuee within the
meaning of section 2 or the property of the transferor is declared or notified
to be evacuee property within the meaning of this Act, unless the transfer is
confirmed by the Custodian in accordance with the provisions of this Act".
Under both these enactments transfer of
property was ineffective unless confirmed by the Custodian even if it was made
by a person who became an evacuee. after the date of the transfer. It was not
necessary that the property should have been declared or notified to be evacuee
property before the aforesaid provisions were attracted.
Under s. 40(1) of the Act, the transfer was
to be ineffective in both eventualities; (1) if the transferor became an
evacuee within the meaning of s. 2 after the transfer or (2) if the
transferor's property had been declared or notified to. be evacuee property. It
is abundantly clear that if Aziz Ahmed Khan became an evacuee even after the
transfer. s. 38(1) of the Ordinance and s. 40(1) of the Act became applicable.
One of the meanings of the word "evacuee" as .given in the definition
in s. 2(d) of the Ordinance and of the Act was :-Section 2(d)(i)
"evacuee" means any person,-who, on account of the setting up of the
Dominions of India and Pakistan or on account of civil disturbances or the fear
o.f such disturbances leaves or has, on or after the 1st day of March, 1947,
left any place in a Province for any place outside the territories now forming
part of India," Aziz Ahmed Khan became an evacuee within the meaning of
the above definition. It was necessary, therefore, for the appellant to have
obtained the confirmation of the Custodian in respect of the transfer which had
been made by Aziz Ahmed Khan in his favour of the properties in question. The
Additional Custodian declined to confirm the transfer and thus the condition
precedent for the transfer to become effective remained 801 unsatisfied. It is
significant that even in the award which formed the basis of the decree it had
been provided "the second party (Aziz Ahmed Khan) is hereby directed to
execute the necessary documents in respect of the transfer by him of the
properties referred to above within one month from the date of the receipt of
the confirmation or approval according to law failing which the first party
will, at his option, get the same executed and registered through court on the
basis of this award which would be made a rule of the court. Therefore
according to the award the confirmation or approval of the Custodian had to be
obtained before the transfer documents were to be executed and completed in
accordance with law. It was incumbent on the appellant to obtain the
confirmation order before he could ask for any further steps to be taken by the
courts in the matter of execution and registration of the transfer deed. Under
s. 39 of the Central Ordinance 27 of 1949 no document could be registered of
the nature mentioned in s. 38 unless the Custodian had confirmed the transfer.
Similar provisions were contained in s. 40 of the Central Act 31 of 1950. The
prayer in the Execution Application that the court might grant assistance
"by execution of sale deed under the enabling para 5 of the Decree"
could not be entertained or acceded to by the Executing Court.
There is one matter, however, on which we
would like to express no view and leave it open to the appellant to take such
steps as he may be advised. Para 6 of the award which became part of the decree
was as follows :-"The claim of the first party for this transfer and
exchange consideration is Rs. 1,50,000/(one lac fifty thousand) on account of
all principal money and interest and other expenses calculated to date against
the second party Sri Aziz Ahmed Khan, which the second party will pay with
interest at 12 per cent per annum in case the transaction and transfer of the
properties referred to above in favour of the first part Sri Sardana is not
confirmed or approved in any way and for any other reasons whatsoever.
Sri Sardana will force the payments against
the properties referred to above. and these properties are hereby charged with
this claim and Sri Sardana will have his remedies to enforce the payment of the
above claim against all other properties of the second party and also against
his person." The High Court in the judgment under appeal dealt with this
question as if the charge was on the evacuee property. On the reasoning which
has been pressed before us about the necessity 802 Of a declaration under the
provisions of Central Ordinance 27 of 1949 or Central Act 31 of 1950 this part
of the judgment does not appear to be correct. We would, however, refrain from
expressing any final opinion as in fairness to both sides this question should
be left for being decided, if taken, in appropriate proceedings including
proceedings before the Executing Court.
With the above observations the appeal is
dismissed but in view of the entire circumstances we make no order as to costs.
Y.P. Appeal dismissed.