Abdul Hakim Khan & Ors Vs. The
Regional Settlement Commissioner  INSC 110 (22 March 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1961 AIR 1391 1962 SCR (1) 531
CITATOR INFO :
R 1965 SC1885 (3,6)
Evacuee Property-Declaration of share in
joint PropertySeparation proceedings-Order vesting entire Property in
Custodian-Legality of-Evacuee Interest (Separation) Act, 1951 (64 of 1951), s.
A Muslim died leaving some property and
several heirs. Some of the heirs became evacuees and their 4/7th share in the
property was declared under s. 7 of the Administration of Evacuee Property Act,
1950, to be evacuee property. Thereafter, proceedings were taken for the
separation of the interest of the evacuees, but as none of the claimants
appeared, the Competent Officer passed an order under s. II of the Evacuee
Interest (Separation) Act, 1951, vesting the entire property in the Custodian.
Held, that the order vesting the entire
property in the Custodian was illegal. The share of the evacuees had been
determined as 4/ 7ths and the Competent Officer was only required to separate
it. Section II could not vest in the Custodian any property which was not
evacuee property. This section deals only with cases where the whole property
has been declared to be evacuee property and the claim is as mortgagor or
mortgagee or to an undivided share in the property. In such cases in the
absence of a claim having been filed or having been filed and found unsustainable,
s.II vests the whole property in the Custodian.
Ebrahim Aboobaker v. Tek Chand Dolwani,
 S.C.R. 691, referred to.
ORIGINAL JURISDICTION: Petition No. 91 of
Petition under Art. 32 of the Constitution of
India for enforcement of fundamental rights.
S. P. Sinha, Shaukat Hussain, E. Udayarathnam
and S. S. Shukla, for the petitioners.
N. S. Bindra, R. H. Dhebar and T. M. Sen, for
the respondents Nos. 1 to 4.
1961. March 22. The Judgment of the Court was
delivered by 532 SARKAR, J.-One Abdul Hai died about 1943. He left certain
immovable properties. He had three wives and children by each. One of his wives
predeceased him. On his death the wives and children, surviving him, succeeded'
to these properties in certain shares. One of the surviving wives and a
daughter died subsequently.
It appears that the remaining wife of Abdul
Hai and his six children by her, went to Pakistan but the time when they did so
does not appear. It is not however disputed that they had become evacuees and
their shares in the properties could be properly declared evacuee property. A
notice under s. 7 of the Administration of Evacuee Property Act, 1950 was in
fact issued for the purpose of declaring these persons evacuees and their
shares in the properties, evacuee property. Proceedings were taken pursuant to
the notice and on August 14, 1952, an order was made declaring the migrants
evacuees and a 4/7th share in certain properties, evacuee property as belonging
to them. Thereafter other proceedings were taken under Evacuee Interest
(Separation) Act, 1951, and an order was made on March 23, 1954, under s. 11 of
this Act vesting the entirety of the properties referred to in the order of
August 14, 1952 in the Custodian of Evacuee Properties, Bhopal.
This petition under Art. 32 of the
Constitution challenges the validity of the orders of August 14, 1952, and
March 23, 1954, as violating the petitioners' fundamental right to hold
property, to wit, their shares in the properties covered by the orders. It is
presented by the surviving children of Abdul Hai by his two deceased wives,
excepting Abdul Aziz. Abdul Aziz however has been made a respondent to the
petition but is not opposing it. It is not in dispute that the petitioners and
Abdul Aziz never became evacuees and are entitled to undivided shares in the
properties declared to have vested in the Custodian in their entirety. The petition
is opposed by the other respondents, namely, the Government of India and
various officers concerned with the Acts, and it will be convenient to describe
them alone as the respondents.
533 The first question raised is as to the
validity of the order dated August 14, 1952, made under the Act of 1950. It is
said that the order is a nullity as the notice under s. 7 of this Act on which
it was based, was bad for the reason that it was issued to Abdul Aziz who was,
admittedly, not an evacuee. It seems to us that it is unnecessary to decide
this question for it is not a matter with which the petitioners are in any way
concerned. The proceedings under that Act did not purport to affect their
interest in the properties and they cannot, therefore, challenge the order made
under it. Further, as we have earlier said, it is not in dispute that the
shares of the surviving wife of Abdul Hai and her children in the properties
could properly be declared evacuee property under the Act since they had
migrated to Pakistan. The order of August 14, 1952, only declared what
purported to be their shares, to be evacuee property. By such a declaration no
right of the petitioners is affected.
The second question raised concerns the order
of March 23, 1954, made under the Act of 1951. This order vests the entirety of
certain properties left by Abdul Hai including the petitioners' shares in them,
as evacuee property and, therefore, clearly affects the petitioners. We think
that the petitioners' grievance against this order is of substance and the
order as it stands cannot be sustained.
This order was made under s. 11 of the Act of
1951. This Act was passed "to make special provisions for the separation
of the interests of evacuees from those of other persons in property in which
such other persons are also interested": see the preamble to the Act. It
creates an officer called the "Competent Officer" for effecting such
separation. The disputed order was made by such an officer.
Section 2(d) defines "composite
property", which, so far as is material, is in these terms:
S. 2(d). "composite property" means
any property which, or any property in which, an interest has been declared to
be evacuee property or has vested in the Custodian under the Administration of
Evacuee Property Act, 1950 (XXXI of 1950) and534 (i) in which the interest of
the evacuee consists of an undivided share in the property held by him as a
co-sharer or partner of any other person, not being an. evacuee; or (ii) in
which the interest of the evacuee is subject to mortgage in any form, in favour
of a person, not being an evacuee; or (iii) in which the, interest of a person,
not being an evacuee, is subject to mortgage in any form in favour of an
Section 2(b) defines a "claim" as
S. 2(b): "Claim" means the
assertion by any per-person, not being in evacuee, of any right, title or
interest in any property(i) as a co-sharer or partner of an evacuee in the
property; or (ii) as a mortagagee of the interest of an evacuee in the
property; or (iii) as a mortgagor having mortgaged the property or any interest
therein in favour of an evacuee;...............
Section 6 authorises a Competent. Officer to
issue, "for the purpose of determining or separating the evacuee interest
in a composite property", notices requiring persons claiming interest in
any composite property, to submit their claims to him. Section 7 deals with the
procedure, the form and the time of making the claims. Section 8 lays down that
on receipt of a the Competent Officer shall make an enquiries in the manner
provided and pass an order determining the interest of the evacuee and the
claimant in the property. It, also provides that the order shall contain, among
others, the following particulars:
(1) in any case where the evacuee and the
claimant ire cosharers or partners, their respective shares in the property and
the money value of such shares;
(2) in any case where the claim is made by a
mortgagor, the amount due to the evacuee; and (3) in any case, where the claim
is made by a mortgage, the amount due under the claim in accordance with the
provisions of section 9.
535 Sub-section (2) of s. 8 is in these
S. 8(2): Where the Custodian under the
Administration of Evacuee Property Act 1950 (XXXI of 1950), has determined that
the property in question or any interest therein is evacuee property, the
decision of the Custodian shall be binding on the competent officer:
Provided that nothing contained in this subsection
shall debar the competent officer from determining the mortgage debt in respect
of such property or any interest therein or from separating the interest of the
evacuee from that of the claimant under section 10.
Claims by mortgagees over evacuee properties
are dealt with by s. 9. Section 10 gives the Competent Officer power to
separate the interests of the evacuee from those of the claimant. It provides
that the Competent Officer "in particular may:-(a) in the case of any
claim of a cosharer......
(i) direct the custodian to pay to the
claimant the amount of money assessed in respect of his share in the composite
property or deposit the same in a civil Court having jurisdiction over such
property and deliver possession of the property to the Custodian and the
claimant may withdraw the amount in deposit in the civil Court; or (ii)
transfer the property to the claimant on payment by him of the amount of money
assessed in respect of the share of the evacuee in the property; or (iii) sell
the property and distribute the sale proceeds, thereof between the Custodian
and the claimant in proportion to the share of the evacuee and of the claimant
in the property; or (iv) partition the propert y according to shares of the
evacuee and the claimant and deliver possession of the shares allotted to the
evacuee and the claimant to the Custodian and the claimant respectively;.........
Then comes s. 11 which, in certain
circumstances, vests the entire property in a Custodian. It was under this
section that the order now being considered 536 was passed and it will be
convenient to set it out later.
It is said on behalf of the respondents that
notices under s. 6 of the Act of 1951, both general and special,. the latter
addressed to the petitioners, asking for submission of claims in respect of the
properties had been issued but no claim was submitted by any one. The learned
counsel for the respondents produced a copy of one of such notices which was
in' the form set" out below:
"Subject:-105.10 acres agricultural land
and one house in village Junapari Tahsil Berosia (4/7 share of Abdul Aleem etc.
evacuees) To Shri Abdul Aziz and his two brothers village Junapani (Tahasil
FORM 'C' WHEREAS information has been
received that you have an interest in the composite property described in the
Schedule hereto annexed.
AND WHEREAS the evacuee interest in the said
property is to be separated from other interests.
I, NOW, hereby call upon you to submit your
claim to me in the prescribed 'form within sixty days from the date of this
notice." Abdul Aleem mentioned in this notice is one of the children of
Abdul Rai who had evacuated to Pakistan.
The order that was passed by the Competent
Officer under s. 11 of the Act of 1951, on March 23, 1954, recited that notices
inviting claims were issued but no claims had been submitted, and then
concluded, "So it is proved that no claim is filed deliberately though the
individual notice has been served by post under a postal certificate. The whole
Composite property listed by Custodian shall vest free of encumbrances and
liabilities in the Custodian Bhopal U/s 11 of the Evacuee Interest (Separation)
Act 1951." It is the validity of this order that is questioned by the
petitioners. They admit that they filed no claims but they deny that any notice
was served on them 537 and also otherwise challenge its validity. We do not
think it necessary to go into the question of the validity of the notice for it
seems to us that even if there was valid notice, the order challenged cannot be
The question is, was the order justified by
s. II of the Act of 1951? That section so far as relevant reads thus:
S. 11(1).-Where in respect of any property,
notice under section 6 is issued but no claim is filed or found to exist or
where any claim in respect of such property is found to exist and the competent
officer separates the evacuee interest therein under section 10, the whole
property, or, as the case may be, the evacuee interest in the property thus
separated shall vest in the Custodian free from all encumbrances and
liabilities and any payment, transfer or partition made or effected under
section 10, in satisfaction of any claim in respect of the property shall be a
full and valid discharge of all claims in respect of the property.
The respondents contend that the notice
mentioned in the section having been issued and no claim pursuant thereto
having been filed, the whole property had to vest in the Custodian and
therefore the order of the Competent Officer was valid. This contention seems
to us to proceedon a misreading of the section. Notices under s. 6 are issued
"for the purpose of determining or separating the evacuee interest in a
composite property". The object of the notice can therefore be one or
other of two things, namely, for determining the evacuee interest or for
separating the evacuee interest, in a composite property. These are two
entirely different things and are so treated in the Act as will appear from the
definition of composite property and ss. 8, 9 and 10. The question of
determining the evacuee interest arises when the interest is either a
mortgagor's or mortgagee's interest in property or an undivided share in
property the extent of which is not known. The determination is then made as
provided in cls. (b), (c) and (d) of s. 8(1), ascertaining the quantum of the
interest as mortgagor, 68 538 mortgagee or co-sharer, as the case may be. A
question as to separation of interest can arise, of course, only when that
interest is known. This is done under s. 10 of the Act. A case of separation
may arise, for example, when the evacuee is found to have a definite undivided
share in property.
Now, an evacuee may be found to have a
definite undivided share as a result of enquiry under s. 8 of the Act of 1951
or under the order made by the Custodian under a. 7 of the Act of 1950. In the
present case the Custodian had held under s. 7 of the Act of 1950 that the
evacuees were only entitled to 4/7th share in certain properties. This will
appear from the notice under s. 6 of the Act of 1951 which we have earlier set
out. Section 8(2) says that the declaration by the Custodian under the Act of
1950 that any interest in property is evacuee property shall be binding on the
Competent Officer, but this shall not prevent him from separating under s. 10,
the interest of the evacuee from that of the claimant. In the present case the
notice was expressly for the purpose of separation.
We have to read s. 11 of the Act of 1951 in
the light of the preceding sections. We have also, in doing so, to remember
that the object of the Act of 1951 is not to vest in the Custodian property
which was not evacuee property but to vest in him only the evacuee interest in
property after determining or separating, as the case may be, that interest from
the interests of other persons in the manner laid down.
It has further to be remembered that it has
been held by this Court that no property vests in the Custodian unless
proceedings under s. 7 of the Act of 1950 had been taken:
Ebrahim Aboobaker v. Tek Chand Dolwani (1).
Section 11 therefore cannot vest in the Custodian any property which was not
evacuee property; it cannot have the effect of making the entire property vest
in the Custodian as evacuee property where the order under s. 7 of the Act of 1956
held that a certain share in it only was evacuee property. It would follow that
when s. 11 makes the whole property vest in the Custodian in the absence of a
claim (1)  S.C.R. 691.
539 having been filed or such claim having
been filed but found to be unsustainable, it deals with a case where the claim
is as mortgagor or mortgagee or to an undivided share in a property where the
order under s. 7 of the Act of 1950 has declared the whole property to be
evacuee property. If it were not to be so read, then it would enable property
admittedly not belonging to an evacuee, to vest in the Custodian. Such could
not have been the intention of the Act and would be against the decision of
this Court earlier referred to. The section therefore does not warrant the
order of March 23, 1954, which purported to vest the entire properties in the
Custodian though the Order under B. 7 of the Act of 1950 found only a four
seventh share therein to be evacuee property.
We think it right to point out that it has
not been contended on behalf of the respondent that the petition was-.not
maintainable. We have therefore not gone into that aspect of the case and are
not to be understood as having decided any question as to the maintainability
of the petition.
In the result we get aside the order of March 23, 1954.
There will be no order as to costs. This
order will not however prevent proper steps being taken for the separation of
the evacuees' interest in the properties from the rest in accordance with the
Act of 1951 or other provisions of law.