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PETITIONER: HAR GOVIND

       Vs.

RESPONDENT: AZIZ AHMAD & ANR.

DATE OF JUDGMENT: 08/08/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. (CJ) RAMASWAMI, V.

CITATION:  1970 AIR  413            1970 SCR  (1) 796  1969 SCC  (2) 524

ACT:     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.

HEADNOTE:     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,

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   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. [800 H]

JUDGMENT:     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 respondents.     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

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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               1950. 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 properties.     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

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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 appel- lant  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

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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

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             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.