http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: ABDUL HAKIM KHAN AND OTHERS

       Vs.

RESPONDENT: THE REGIONAL SETTLEMENTCOMMISSIONER

DATE OF JUDGMENT: 22/03/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. 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)

ACT: Evacuee  Property-Declaration  of share in  joint  Property- Separation  proceedings-Order  vesting  entire  Property  in Custodian-Legality  of-Evacuee  Interest  (Separation)  Act, 1951 (64 of 1951), s. 11.

HEADNOTE: 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.   There- after,  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 Cus- todian  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, [1953] S.C.R.  691, referred to.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 91 of 1956. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of fundamental rights. S.   P.  Sinha, Shaukat Hussain, E. Udayarathnam and  S.  S.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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) and-               534               (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 evacuee; or.........               Section 2(b) defines a "claim" as follows:               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  co- sharers 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 terms:               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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             is  evacuee  property,  the  decision  of  the               Custodian  shall be binding on  the  competent               officer:               Provided  that nothing contained in this  sub-               section 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  co- sharer......               (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   respec-               tively;......... 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 Berosia).                           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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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 upheld. 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  sepa-               rated  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 proceed-  on  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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)  [1953] 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.                                   Petition allowed. 540