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PETITIONER: EBRAHIM ABOOBAKER AND ANOTHER

       Vs.

RESPONDENT: TEKCHAND DOLWANIEBRAHIM ABOOBAKER AND ANOTHERV.CUSTODIAN-GEN

DATE OF JUDGMENT: 10/04/1953

BENCH: HASAN, GHULAM BENCH: HASAN, 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.

JUDGMENT:  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. 692 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

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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

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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

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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

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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 there  of 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.

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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

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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

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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

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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

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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

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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. 92 708