Ebrahim Aboobaker & ANR Vs.
Tekchand Dolwaniebrahim Aboobaker & ANR [1953] INSC 30 (10 April 1953)
GHULAM SASTRI, M. PATANJALI (CJ) MUKHERJEA,
B.K.
DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 298 1953 SCR 691
CITATOR INFO :
RF 1961 SC1391 (14) E 1965 SC 951 (10) R 1967
SC 106 (4) RF 1974 SC2325 (7)
ACT:
Administration of Evacuee Property Act (XXXI
of 1950), ss. 2(d) and (f), 7-Proceedings for declaring a person an evacuee and
his properties evacuee properties-Death of person pending proceedings-Abatement
of Proceedings- Continuation of proceedings against successors-Legality.
HEADNOTE:
Where a Mohammedan against whom proceedings
are commenced under the Administration of Evacuee Property Act, 1950, for
declaring him an evacuee and his properties evacuee properties dies during the
pendency of the proceedings he cannot be declared an evacuee after his death,
and his properties which on his death vest in his heirs under the Mohammedan
law -cannot be declared evacuee properties.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 65 of 1953.
Appeal by special leave granted by the
Supreme Court on 13th March, 1953, from the Judgment and Order dated the 30th
July, 1951,. of the Custodian General of Evacuee Property in No. 31-A/Judi./50.
Petition No. 247 of 1952, a petition under
Article 32 of the Constitution for enforcement of fundamental rights, and
Petition for Special Leave to Appeal No. 106 of 1952 were also beard along with
Civil Appeal No. 66 of 1953.
K.T. Desai for the appellants and
petitioners.
C.K. Daphtary, Solicitor-General for India
(Porus A.Mehta with him) for the respondent in Petition No. 247.
1953. April 10, The Judgment of the Court was
delivered by GHULAM HASAN J.-In order to understand and appreciate the point
arising for consideration in this case, it will be necessary to set out a few
preliminary facts :- One Aboobaker Abdul Rehman, a resident of Bombay, received
on December 16, 1949, from the Additional Custodian, Bombay, a notice under
section 7 of Ordinance No. XXVII of 1949 calling upon him to show cause why his
interest in certain specific property should not be declared to be evacuee
property. A further notice issued on January 11, 1950, required him to show
cause why he should not be declared an evacuee and all his properties declared
to be evacuee properties. On February 8, 1950, the Additional Custodian decided
that Aboobaker was not an evacuee, but at the same time issued a fresh notice
to him under section 19, requiring him to show cause why he should not be
declared an "intending evacuee" and on the following day, February 9,
he declared Aboobaker as an "intending evacuee" upon the same
evidence. Aboobaker does, not appear to have contested this order, but one Tek
Chand Dolwani, first informant, carried the matter in appeal to the Custodian
General, praying that Aboobaker be declared an evacuee and that the Imperial
Cinema, one of his properties, be allotted to him.
The Ordinance expired on October 18, 1949,
and was replaced by Act XXXI of 1950 (The Administration of Evacuee Property
Act) which came into operation on April 17, 1950.
It is not denied that although the Ordinance
was repealed by section 58, the proceedings taken in the exercise of any powers
conferred by the Ordinance shall be deemed to have 693 been taken in the
exercise of the powers conferred by the Act as if the Act were in force on the
day the proceedings were taken.
The appeal was heard on May 13, 1950, when
the preliminary objections in regard to the maintainability of the appeal were
argued and the appeal was adjourned to May 15 for orders. On May 14, Aboobaker
died leaving him surviving three son and 9 daughter as his heirs under the
Mohammedan law, the sons taking 2/7th share each and the daughter 1/7th. On May
15, the Custodian General pronounced the order which was, however,, dated May
13. By this order he dismissed the preliminary objections and directed that
further enquiries should be made and that Aboobaker be examined further on
August 19, 1950. The hearing of the appeal was adjourned from time to time and
was fixed for final disposal on March 7, 1951. Notice of this hearing was
issued to Ebrahim Aboobaker (son) and Hawabai Aboobaker (daughter) who owned
between themselves 3/7th share to appear as the heirs and legal representatives
of the deceased. The petitioners, who are residents of India-their two brothers
are said to have migrated to Pakistan-filed on February 26, 1951, Miscellaneous
Petition No. 15 of 1951, in the Punjab High Court for a writ of prohibition or
for directions or order directing the Custodian General to forbear from
proceeding with the hearing of the appeal or making any order in the said
appeal or from declaring the properties left by the deceased as evacuee
properties. The petitioners contended inter alia that after the death of
Aboobaker the Custodian General had no jurisdiction to proceed with the appeal.
The petition was dismissed on May 24, 1951, the High Court holding that the
Custodian -General had jurisdiction. Leave to appeal was granted but the High
Court did not stay the hearing of the appeal by the Custodian General which was
fixed for July 3, 1951, and directed that the Custodian General should not pass
final orders until July 23, 1951. On ,July 3, the Custodian General heard the
appeal and 90 694 on July 30 which was the date fixed for final orders he
declared Aboobaker to be &a evacuee and his properties to be evacuee
properties.
On August 6, 1951, the petitioners filed a
petition (Miscellaneous Petition No. 191 of 1951) under article 226 of the
Constitution in the Bombay High Court against the Custodian General and the
Custodian, Bombay, for a writ of certiorari for quashing and setting aside the
said order and for an order directing the Custodian General and the local
Custodian from acting upon the order or from taking possession of the property
which was situate in Bombay. The petition was dismissed by Shah J. on October
4, 1951, on the ground that the Bombay High Court had no jurisdiction against
the Custodian General and that the petition against the local Custodian was
premature. Appeal No. 88 of 1951 was filed on October 5, 1951 against the said
order to the Bombay High Court. An interim order was passed whereby the
petitioners undertook to keep accounts and not to dispose of the properties
while the Custodian General gave an undertaking not to take possession pending
the hearing of the appeal. The appeal came up for hearing on November 20, 1951,
before the Chief Justice and Gajendragadkar J. but it was allowed to stand over
with a view to await the decision of this Court in appeal against the order of
the Punjab High Court as they did not wish to pass any order which might
conflict with the decision of this court. That appeal was dismissed by this
Court on May 26, 1952. See Ebrahim Aboobaker and Another v. Custodian General
of Evacuee Property(1). This Court decided only the preliminary point that Tek
Chand Dolwani was entitled to prefer an appeal but left the question about the
jurisdiction of the Custodian General to declare the properties of Aboobaker as
evacuee properties after his death open as that question was not raised before
it, the order of the 30th July, 1951, having been passed after the filing of
the appeal in the Supreme Court and also because that question (1) [1952]
S.C.R. 696.
695 was pending determination in the appeal
before the Bombay High Court.
Appeal No. 88 of 1951 was dismissed on
1st/2nd July, 1952, by the Chief Justice and Gajendragadkar J. on the
preliminary ground that they had no jurisdiction to quash the order of the
Custodian General passed on 30th July,1951.
They declined to pass any order against the
local Custodian observing that they could not do indirectly what could not be
done directly. A petition for leave to appeal was also rejected by the High
Court on the 14th July, 1952.
Petition No. 105 of 1952 is for special leave
to appeal against the order of the Custodian General dated July 30, 1951.
Petition No. 106 of 1952 is against the order of the Appellate Bench of the
Bombay High Court dated 1st/2nd July, 1952. Petition No. 247 of 1952 is an
independent petition under article 32 of the Constitution, challenging the
order of the Custodian General dated July 30, 1951, as being in violation of
the fundamental rights of the petitioners and being without jurisdiction.
Tek Chand Dolwani has filed a caveat against
the Petition No. 105 of 1952, while the petition under article 32 has been
heard upon notice to the Custodian General. In this petition it is submitted
that on a true construction of the relevant provisions of the Ordinance and the
Administration of Evacuee Property Act, the Custodian General had no
jurisdiction to hear the appeal after the death of Aboobaker, or to make any
order declaring the properties left by him to be evacuee properties as the
appeal abated on his death and the properties vested in specific shares in his
heirs under the Mohammedan law. It was urged that as the said properties did
not fall within the definition of evacuee property on the 30th July, 1951, or
at any time after the death of Aboobaker, the Custodian General had no
jurisdiction to declare the properties to be evacuee properties. As a matter of
fact, the deceased had no right, title or interest in the said properties after
his death; nor were the said properties acquired by his heirs by any mode of
transfer 696 from the deceased. The order-of the 30th July, 1951, is challenged
as being void and inoperative as it violates the fundamental rights of the
petitioners under articles 19(1) (f) and 31 (1) of the Constitution. The
petitioners pray for the issue of a writ of certiorari against the Custodian
General calling for the records of the case relating to the above order and
after looking into the same and going into the question of the legality thereof
quash and set aside the same. They also ask for a writ of prohibition or
mandamus or directions or an order or a writ directing the Custodian General,
his servants and agents to for bear from acting upon or enforcing the order
dated the 30th July, 1951, or from taking any steps or proceedings in
enforcement of the same. We heard the petitioners and the Solicitor-General on
the petition under article 32 and reserved orders till we had beard Dolwani who
was the caveator in the application for special leave to Appeal. Dolwani,was
served with a notice personally and through his agent but neither put in
appearance. We granted the application for leave to appeal against the order of
the Custodian General and directed the appeal to be posted for hearing along
with the application under article 32. Dolwani again did not appear and we'
proceed, therefore, to dispose of the appeal and the petition by a common judgment.
The crucial question which arises- for
consideration before us is whether a person can be declared an evacuee after
his death and whether the properties which upon his death vest in his heirs
under the Mohammedan law can be declared evacuee properties. Before we proceed
to determine that question we must notice the objection raised by the
Solicitor-General about the maintainability of the petition under article 32 of
the Constitution. He contends that there is no question of any infraction of
fundamental right in the present case as the petitioners have not been deprived
of any property without the authority of law. The Custodian General, it is
said, undoubtedly purported to act under an express statutory enactment. He
might have misapplied or 697 misappreciated the law or committed an error in
the assumption or exercise of jurisdiction, but that would not bring the case
within the purview of article 31 (1 read with article 19(1) (f) of the
Constitution. The point is debatable and we do not desire to express any
opinion upon this point as we propose to examine the validity of the order of
the Custodian General dated July 30, 1951, in the appeal (Civil Appeal No. 65
of 1953) which arose out of Petition No. 105 of 1952 for special leave and not
on the petition under article 32.
Section 2 (d) and (f) define
"evacuee" and "'evacuee property" respectively as follows:-
(d) "Evacuee " means any person- (i) who, on account of the setting
up of the Dominions of India and Pakistan or on account of civil disturbances
or the fear of such disturbances, leaves or has ' on or after the 1st day of
March, 1947, left, any place in a State for any place outside the territories
now forming part of India,or (ii) who is resident in any place now forming part
of Pakistan and who for that reason is unable to occupy, supervise or manage in
person his property in any part of the territories to which this Act extends,
or whose property in any part of the said territories has ceased to be
occupied, supervised or managed by any person or is being.
occupied, supervised or managed by an
unauthorised person, or (iii) who has, after the 14th day of August, 1947,
obtained, otherwise than by way of purchase or exchange, any right to, interest
in or benefit from any property which is treated as evacuee or abandoned
property under any law for the time being in force in Pakistan ;
(f) " Evacuee property " means any
property in which an evacuee has any right or interest (whether personally or
as a, trustee or as a beneficiary or in any other capacity), and includes any
property- (1) which has been obtained by any person from an evacuee after the
14th day of August, 1947, by 698 any mode of transfer, unless such transfer has
been confirmed by the Custodian.
The use of the present tense "leaves"
or "has left" in the definition of evacuee and " has " in
the definition of evacuee property is relied upon in support of the contention
that the object of the legislature in enacting these provisions was to confine
their operation to a living person only. This line of argument may not per se
be of any compelling force but it receives support from the rest of the
provisions of the Act to which reference will be made hereafter. It may,
however, be pointed out here that clause (f) (1) will not apply to the case of
the petitioners for they do not claim the property from the evacuee after the
14th day of August, 1947, by any mode of transfer but by right of succession
under the Mohammedan law. Succession to property implies devolution by
operation of law and cannot appropriately be described as mode of transfer, as
contended for by the Solicitor-General, which obviously contemplates a transfer
inter vivos.
Section 7 refers to the notification of the
evacuee property. It lays down that "where the Custodian a of opinion that
any property is evacuee property within the meaning of this Act, he may, after
causing notice thereof to be given in such manner as may be prescribed to the
persons interested, and after holding such inquiry into' the matter as the
circumstances f the case permit, pass an order declaring any such property to
be evacuee property." Rule 6, which is framed in exercise of the powers
conferred by section 56 of the Act, lays down the manner of inquiry under
section 7 and is as follows:" `` (1) Where the Custodian is satisfied from
information in his possession or otherwise that any property or an interest
therein is prima facie evacuee property, he shall cause a notice to be served,
in Form No. 1, on the person claiming title to such property or interest and on
any other person or persons whom he considers to be interested in the property.
699 (2) The notice shall as far as
practicable mention the grounds on which the property is sought to be declared
evacuee property and shall specify the provision of the Act under which the
person claiming any title to, or interest in, such property is alleged to be an
evacuee.
(3) The notice shall be served personally,
but if that is not practicable the service may be effected in any manner
provided in rule 28. (This rule refers to a mode of substituted service).
(4) Where a notice has been duty served, and
the party called upon to show cause why the, property should not be declared an
evacuee property, fails to appear on the date fixed for hearing, the Custodian
may proceed to hear the matter ex- parte and pass such order on the material
before him as he deems fit.
(5) Where such party appears and contests the
notice he shall forthwith file a written statement verified in the same manner
as a pleading under the Code of Civil Procedure, 1908, stating the reasons why
he should not be deemed to be an evacuee and why the property or his interest
therein should not be declared as evacuee property. Any person or persons
claiming to be interested in the enquiry or in the property being declared as
evacuee property, may file a reply to such written statement. The Custodian
shall then, either on the same day or on any subsequent day to which the
hearing may be adjourned, proceed to hear the evidence, if any, which the party
appearing to show cause may produce and also evidence which the party claiming
to be interested as mentioned above may adduce.
(6) After the whole evidence has been duly
recorded in a summary manner, the Custodian shall proceed to pronounce his
order. The order shall state the points for determination, and the findings
thereon with brief reasons." Form No. 1 in Appendix A to the rules is as
follows;-.
700 "WHEREAS there is credible
information in possession of the Custodian that you are an evacuee under clause
(iii) of section 2(d) of the Administration of Evacuee Property Act on account
of the grounds mentioned below:- AND WHEREAS it is desirable to hear you in
person ;
Now, therefore, you are hereby called upon to
show cause (with all material evidence on which you wish to rely) why orders
should not be passed declaring you an evacuee and all your property as evacuee
property under the provisions of the said Act.
Deputy Custodian." Assistant The next
important section is section 8 the relevant portion of which is as follows:-
"(1) Any property declared to be evacuee property under section 7 shall be
deemed to have vested in the Custodian for the State,- (a) in the case of the
property of an evacuee as defined in sub-clause (i) of clause (d) of section 2,
from the date on which he leaves or left any place in a State for any place
outside the territories now forming part of India;'' If we substitute in
section 8 the definition- of evacuee property given in section 2, the meaning
of section 8 will become clearer. Any property declared to be :
(i) property in which an evacuee has any
right or interest, (ii) property which has been obtained by any person from an
evacuee after the 14th of August, 1947, by any, mode of transfer unless that
transfer has been confirmed by the Custodian under section 7, shall be deemed
to have vested in the Custodian for the State :
(a) in the case of the property of an evacuee
as defined in sub-clause (i) of clause (d) of section 2, 701 from the date on
which he leaves or left any place in a State for any place outside the
territories now forming part of India." The language of the rule read with
the Form given above, the notice issued to the person claiming interest in the
property which, according to the information in the possession of the
Custodian, is prima facie evacuee property, the manner of its service and the
mode of inquiry, lead to the unmistakable conclusion that the object of section
7 was to take proceedings against a living person and to that extent the use of
the present tense in the definition of "evacuee" and "evacuee
property" lends corroboration to the contention raised that the
proceedings are intended to be applicable to living persons only. The property
which is declared to vest under (i) must be one in which an evacuee has any
right or interest but the deceased has no right or interest after his death as
his property vests in his heirs. Nor does (ii) apply as petitioners have not
obtained the property from an evacuee by any mode of transfer.
It is obvious that property must be declared
to be evacuee property under section 7 before it can vest under section 8.
There is no doubt that when the property does
so vest the vesting takes effect retrospectively, but where the man dies before
any such declaration is made, the doctrine of relation-back cannot be invoked
so as to affect the vesting of such property in the legal heirs by operation of
law. To take a simple illustration, -if a person leaves India after the 1st of
March, 1947, the date given in section 2(d), and dies in Pakistan before any
notice is issued to him under section 7 and before any inquiry is held in
pursuance thereof, it is obvious that the heirs, who have succeeded to his property,
cannot be deprived of it by conducting an inquiry into the status of the
deceased and investigating his right or interest in property which has already
devolved on legal heirs. Section 8 in such a case will not come into play and
there can be no vesting of the property retros- pectively before such property
is declared as evacuee 91 702 property within the meaning of section 2(f) of
the Act.
Reading sections 7 and 8 together it appears
that the Custodian gets dominion over the property only after the declaration
is made. The declaration follows upon the inquiry made under section 7, but
until the proceeding is taken under section 7, there can be no vesting of the
property and consequently no right in the Custodian 'to take possession of it.
Now if the alleged evacuee dies before the declaration, has the Custodian any
right to take possession of the property? If he cannot take possession of the
property of a living person before the declaration, by the same token he cannot
take possession after the death of the alleged evacuee when the property had
passed into the hands of the heirs, The enquiry under section 7 is a condition
precedent to the making of a declaration under section 8 and the right of the
Custodian to exercise dominion over the property does not arise until the
declaration is made. There is no reason therefore why the heirs should be
deprived of their property before the Custodian obtains dominion.
The matter may be looked at from another
point of view.
Section 141 of the Civil Procedure Code which
makes the procedure of the Court in regard to suits applicable in all
proceedings in any Court of civil jurisdiction does not apply, as the Custodian
is not a Court, though the proceedings held by him are of a quasi-judicial
nature., Section 45 of the Act applies the provisions of the Code only in
respect of enforcing the attendance of any person and examining him on oath and
compelling the discovery and production of documents.
The provisions of the Code relating to
substitution are, therefore, inapplicable and there is no other provision in
the Act for the heirs to be substituted in place of the deceased so as to
continue proceedings against them. If the proceedings cannot be continued
against the heirs upon the death of the alleged evacuee, it is logical to hold
that they cannot be 703 initiated against them. We hold, therefore, that the
proceedings must lapse upon the death of such person.
There is no provision in the Act that after a
man is de ad, his property can be declared evacuee property. If such a
provision had been made, then the vesting contemplated in section 8 of the Act
would have by its statutory force displaced the vesting of the property under
the Mohammedan law in the heirs after death. It is a well recognised
proposition of law that the estate of a deceased Mohammedan devolves on his
heirs in specific shares at the moment of his death, and the devolution is
neither suspended by reason of debts due from the deceased, nor is the
distribution of the shares inherited postponed till the payment of the debts.
It is also well understood that property vests in the heirs under the
Mohammedan law, unlike the Indian Succession Act, without the intervention of
an administrator.
Section 40 of the Act imposes a restriction
upon the right of an evacuee to transfer property after the 14th August, 1947.
This section prohibits transfers inter vivos but cannot affect devolution by
operation of law such as, on death According to this section where the property
of a person is notified or declared to be an evacuee property, he cannot
transfer that property after the 14th of August, 1947, so as to confer any
right on the transferee unless it is confirmed by the Custodian. This shows
that a transfer between the 1st of March and the 14th of August, 1947, is
immune from the disability of being treated as evacuee property notwithstanding
the fact that the transferor migrated after the 1st of March. If he made a
bonafide transfer of his entire property before the 14th of August,,1947, then
the property does not acquire the character of evacuee property and such a
transfer does not require. confirmation by the Custodian, although all
transfers after that date are held suspect. If the transfer between the two
crucial dates is held valid, then on a parity of reasoning the death of the
transferor before the declaration after the 14th of August should lead to the
same result.
704 It was contended before us that the Act
aims at fixing the nature of the property from a particular date and that the
proceedings taken are against the property and not against the person. This
argument is fallacious. There can be no property, evacuee or otherwise, unless
there is a person who owns that property. It is the property of the owner which
is declared to be evacuee property by reason of the fact that he is subject to
disability on certain grounds. The definition of evacuee property in the Act
begins by Baying "property in which an-evacuee has any right or interest
in any capacity". The Act also shows that the property cannot be notified
as evacuee property unless and until the. person claiming interest in it has
been given notice.
Reference may also be made to section 43 as
indicating that the declaration under section 8 was intended to be made during
the lifetime of the alleged evacuee. This section lays down "where in
pursuance of the provisions of this Act any property has vested in the
Custodian neither the death of the evacuee at any time thereafter nor the fact
that the evacuee who had a right or interest in that property had ceased to be
an evacuee at any material time shall affect the vesting or render invalid
anything done in consequence thereof." The section shows that where the
property has vested in the Custodian, then the death of the evacuee or his
ceasing to be an evacuee afterwards shall not affect the vesting or render
invalid anything done in consequence thereof. The section seems to suggest that
the vesting must take place in the lifetime of the alleged evacuee, otherwise
there was no point in providing that the vesting will not be affected by the
death of the evacuee or the evacuee ceasing to be so.
The Solicitor-General contended that section
43 embodies the principle "once an evacuee always an evacuee",, This
conclusion is hardly justified on the terms of section 43 as explained above
and it finds no support from the other provisions of the Act. The object and
the scheme of the Act leave little doubt 705 that the Act was intended, as its
title shows, to provide for the administration of evacuee property and it is
common ground that this property has ultimately. to be used for compensating
the refugees who had lost their, property in Pakistan. The Act contains
elaborate provisions as to how the administration is to be carried out.
Section 9 enables the Custodian to take
possession of the evacuee property vested in him under section 8 and section 10
which defines the powers of the Custodian generally enables him to take such
measures as he considers necessary or expedient for the purposes of
administering, preserving and managing any evacuee property. These are
mentioned in detail in sub-section (2) of section 10, clause (j), which
authorises the Custodian to institute, defend or continue any legal proceedings
in any civil or revenue Court on behalf of the evacuee.
, Section 15 imposes an obligation on him to
maintain a separate account of the property of each evacuee.
Section 16 empowers the Custodian to restore
the evacuee property upon application to the evacuee or any person claiming to
be his heir provided he produces a certificate from the Central Government that
the evacuee property may be restored to him. Upon restoration the Custodian
shall stand absolved of all responsibilities in respect of the property so
restored, but such restoration shall not prejudice the rights, if any, in
respect of the property which any other person may be entitled to enforce
against the person to whom the property has been so restored.
By section 62 of the Act it is open to the
Central Government by notification in the Official Gazette, to exempt any
person or class of persons or any property or class of property from the
operation of all or any of the provisions of this Act. In pursuance of this
section the Central Government issued Notification No. S.R.O. 260, dated the
3rd July, 1960, which was published in the Gazette of India, Part II, section
3, 706 dated the 15th July, 1950, page 254, in which broadly three categories
of persons were exempted:- (a) Any person who on or after the 1st day of March,
1947, migrated from India to Pakistan but had returned to India before the 18th
day of July, 1948, and had settled therein ;
(b) Any person who has left or leaves for
Pakistan on a temporary visit taking with himself a "No objection to
return" certificate, and has returned, or returns, to India under a valid
permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent
return to India; and (c) Any person who has come from Pakistan to India before
the 18th day of October, 1949, under 'a valid permit issued under the Influx
from Pakistan (Control) Act, 1949, for permanent resettlement in India.
These provisions far from suggesting that the
person declared an evacuee suffers a civil death and remains an evacuee for all
time show on the other hand that the person may cease to be an evacuee under
certain circumstances that he is reinstated to his original position and his
property restored to him subject to certain conditions and without prejudice to
the rights if any in respect of the property which any other person may be
entitled to enforce against him. These provisions also establish that the fact
of a property being evacuee property is not a permanent attribute of such
property and that it may cease to be so under given conditions. The property
does not suffer from any inherent infirmity but becomes evacuee property
because of the disability attaching to the owner. Once that disability ceases,
the property is rid of that disability and becomes liable to be restored to the
owner.
Mr. Desai counsel for the petitioner referred
in the course of the arguments to section 93 of the Presidency Towns Insolvency
Act and section 17' of the Provincial Insolvency Act. According to the former
"if a debtor by or against whom an insolvency petition has been presented
dies, the proceedings in the 707 matter shall, unless the Court otherwise
orders, be continued as if he were alive". By the latter section "if
a debtor by or against whom an insolvency petition has been presented dies,
'the proceedings in the matter shall, unless the Court otherwise orders, be
continued so far as may be necessary for the realisation and distribution of
the property of the debtor". Though there is slight difference in the
language of these two sections, the principle underlying the insolvency law seems
to be that the death of the insolvent during the pendency of the application
for insolvency does not cause the proceedings to abate but that they must be
continued so that his property could be administered for the benefit of the
creditors. There is no such provision in, the Act before us. It follows
therefore that if the intention of the legislature had been to treat the person
proceeded against under section 7 as alive for purposes of the proceedings even
after his death, such a provision would have been incorporated into the Act.
After giving our best consideration to the
case we are of opinion that the order of the 30th July, 1951, passed by the
Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and
the property left by him as evacuee property cannot stand and must be set
aside. We accordingly allow Appeal No. 65 of 1953, arising out of Petition No.
105 of 1952 and hold that the Custodian General had no jurisdiction to pass the
order of the 30th July, 1951, and set it aside. We make no order as to costs.
Petition No. 106 of 1952 is not pressed and
no order need be passed in respect thereto. In view of our order in Appeal No.
65 of 1953, no orders are called for in Petition No. 247 of 1952.
Appeal allowed.
Agent for the appellants and petitioners :
Rajinder Narain.
Agent for the respondent in Petioion No. 247:
G. H. Rajadhyaksha.
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