20 August 1970
Supreme Court


Case number: Appeal (civil) 36 of 1967






DATE OF JUDGMENT: 20/08/1970


CITATION:  1971 AIR  131            1971 SCR  (1) 851  1970 SCC  (2) 537

ACT: Administration  of  Evacuee Act (31 of  1950),s.12  and  Ad- ministration  of Evacuee Property (Central) Rules  1950,  r. 14--Power  of Custodian to lease and cancel  leases--Evacuee Interest  (Separation) Act (64 of 1951), s. 10  and  Evacuee Interest (Separation) Rules, r. 11B--Competent Officer--When he  can  direct Custodian to deliver  vacant  possession  of mortgagel property.

HEADNOTE: The appellant executed a usufructuary mortgage of his  house and  continued  to reside in it as a tenant  under  a  lease obtained  from the mortgagee.  In 1949, the  mortgagee  left for Pakistan.  He was declared an evacuee and his  mortgagee interest  in the mortgaged property vested in the  Custodian under  s. 8 of the Administration of Evacuee  Property  Act, 1950.  Under s. 12, the Custodian evicted the appellant  and allotted  it to others as tenants.  In spite of  demands  by the  appellant  and  the appellant  tendering  the  mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant.  The appellant applied to the Competent  Officer under the Evacuee  Interest  (Separation) Act,  1951.   The Officer determined the mortgage  debt  due from   the  appellant  and  the  appellant  claimed   vacant possession  against tender of payment by him of the  amount. The  Officer rejected the claim and ordered the sale of  the property  under  s.10(b)(ii)  of  the  Separation  Act,  for satisfaction   of  the  mortgage  debt.   Thereafter, the appellant  paid the entire mortgage debt and  the  Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the Administration of Evacuee Property Act  gives to that Act an overriding effect in  relation  to any other law for the time being in force, and hence the law under  the  Transfer  of Property set,  is  not  applicable. Though  s.12 of the Act empowers the Custodian to cancel  an allotment or a tenancy, created by him, under r.14(2) of the Administration  of Evacuee Property (Central)  Rules,  1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or



for  any  violation  of  the  conditions  of  the  lease  or allotment.  The Custodian could not, therefore, give  vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A-B, D-F] (2)  The Evacuee Interest (Separation) Act, 1951, was passed on  account  of  the  difficulty  of  administering  evacuee properties in which there were both evacuee and  non-evacuee interests and to resolve the hardship felt by  non-evacuees, who  by reason of such properties  being  in the  possession of  the  Possession were unable to  obtain  satisfaction  of their  claims in view of the prohibitive provisions of  that Act.   But there is no provisions by which the Custodian  is made  subject  to  the power or  control  of  the  Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers  of  the Custodian.  Though under s.10(b)(i)  of  the Separation  Act,  the  Competent  Officer  can  pay  to  the Custodian  the  mortgage  debt and  redeem  the  mortgaged property, his power is subject to the rules made under  that Act. [856 F-G; 858 B-C, G-H] (3)  Reading  the relevant provisions namely, s. 12  of  the Administration  of  Evacuee Property Act and r.  14  of  the Rules  made thereunder, and s. 10 of the Separation Act  and r. 11B of the rules made thereunder, together, the  position is : (i) that though the Competent’ Officer must accept  the mortgage  amount  when  tendered  by  a  mortgagor  and  the mortgage debt is thereupon satisfied, he cannot exercise the power  to  redeem  the  mortgaged  property  and  order  the Custodian  to  deliver  up  its  vacant  possession  to  the mortgagor  in  the  absence of  any  agreement  between  the mortgagor and the Custodian; (ii) that the Competent Officer can  order sale only for satisfaction of the  mortgage  debt and  for  distribution  of the  sale  proceeds  between  the mortgagor  and  mortgagee.  Since in the present  case,  the mortgage amount had been paid by the appellant and  accepted by the Competent officer, the order directing sale is unten- able and should be set aside; and (iii) that in  exercising- his  jurisdiction under s. 10, the Competent Officer  cannot direct  the  Custodian to cancel or vary the  terms  of  the leases or allotments made or granted by him.  Therefore  the Competent  Officer can direct only symbolical possession  of the  mortgaged,property  to  be  given  to  the   appellant, however,  harsh and unfair it may apparently be.  [860  D-G; 861 B, E-H; 862 A-C] The  All India Film Corporation v. Raja Gyan Nath, [1970]  2 S.C.R. 581 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 36 of 1967. Appeal  by special leave from the judgment and  order  dated August  25, 1966 of the Punjab High Court, Circuit Bench  at Delhi in Letters Patent Appeal No. 36-D of 1966. Bishan  Narain,  R.  Mahatingier and  Ganpat  Rai,  for  the appellant. R. H. Dhebar and S. P. Nayar, for respondent Nos. 1 and 3. The Judgment of the Court was delivered by Shelat, J In 1933 the appellant built a bungalow situate  at 27, Curzon Road, New Delhi on a plot acquired by him under a permanent  lease from the Secretary of State for India.   In 1943  he  mortgaged  the said property  with  possession  in favour  of  one K. B. Bunyad Hussain but  obtained  a  lease thereof at the same time from the mortgagee and continued to



reside therein as tenant.  In November 1949, the  mortgagee left  for  Pakistan  a whereupon the  Custodian  of  Evacuee Property  under the Administration of Evacuee Property  Act, 1950  (hereinafter  referred to as the  Administration  Act) declared  him to be an evacuee and his interest in the  said property  as  the  mortgagee as  evacuee,  property.   The appellant alleged that sometime in November 1949 the 853 Custodian  forcibly dispossessed him and either allotted  or let  out,  or allowed the said premises to  be  occupied  by certain persons.  In 1954, the appellant made an application to   the  Competent  Officer  under  the  Evacuee   Interest (Separation)  Act,  1951  (hereinafter referred  to  as  the Separation Act) for separating his interest as the mortgagor and tenant in the said property.  In those proceedings a sum of  Rs.  1,45,735/-  was ultimately held to be  due  as  the mortgage  debt  under  the  said  mortgage.   The  appellant claimed that he was entitled to obtain vacant possession  of the  said  property against payment by him of  the  mortgage debt.   The claim was rejected on the ground that there  was no  agreement  between the appellant and the  Custodian  for getting  the vacant possession and also on the  ground  that the  Competent  Officer, under the Separation  Act,  had  no power to direct the Custodian to hand over to the  appellant vacant  possession.   From that time onwards  the  appellant made  diverse applications to the Competent Officer and  the Appellate  Officer  under the Separation Act  for  obtaining vacant possession against payment of the mortgage debt.   In one  such  application  made  in  1958  he  alleged  that  a compromise had been arrived at between him and the Custodian under  which  he  would  pay the,  mortgage,  debt  and  the Custodian  thereupon would simultaneously hand over  to  him vacant  possession.  By his order dated March 23, 1959,  the Appellate Officer, however, held that no such compromise had been   entered   into  by  the  Custodian   and   that   the correspondence  between  the appellant  and  that  authority merely  indicated that what was agreed to was that upon  the appellant  lodging certain verified claims an  open  portion shown as A, B, C and D in the plan of the property would  be handed  over to him.  On this finding the Appellate  Officer dismissed the appellant’s application as he had neither paid the  mortgage  money  nor  put in  the  verified  claims  as suggested in the said correspondence and confirmed the order of  the Competent Officer under which the property had  been ordered to be sold in the absence of any agreement with the’ Custodian or the payment of the mortgage debt. The  appellant then filed a writ petition in the High  Court of  Punjab (in the Circuit Bench at Delhi) for quashing  the said  order  of sale and for a direction  to  the  Competent Officer  to hand over vacant possession against  payment  by him of the mortgage debt.  A learned Single Judge  dismissed the  petition  holding  that the Competent  Officer  had  no jurisdiction  to  order such vacant possession  against  the Custodian  or against the tenants or allottees  inducted  on the  property by the Custodian.  The Letters  Patent  appeal against  that  judgment and order was also  dismissed.   The appellant  then  filed the present  appeal  after  obtaining special leave from this Court. 854 It  is not disputed that until the time when  the  Competent Officer  passed his order for sale of the property  and  the Appellate  Officer confirmed it the appellant had  not  paid the mortgage amount, nor was there any agreement between him and  the  Custodian where under the latter would  hand  over vacant  possession  of the property against payment  of  the



mortgage  debt.   However,  it is conceded  by  counsel  for respondents  1 and 3 that the appellant has since then  paid the entire mortgage debt and the Competent Officer has under s.  10  of  the Separation Act accepted  that  amount.   Two questions  on  these  facts, therefore,  arise,  for  deter- mination;  (1)  whether  the order for sale  passed  by  the Competent  Officer and confirmed by the  Appellate  Officer was  rightly  passed although the appellant  had  repeatedly offered to pay the mortgage debt on condition, however, that he  would be given vacant possession at the same  time,  and (2)  assuming  that the Competent Officer had  no  power  to direct  the Custodian to hand over vacant  possession,  what was the effect of the repayment of the mortgage debt by  the appellant  since  then  and the acceptance  thereof  by  the Competent Officer. The  rights in the property in question which vested in  the Custodian were those of the mortgagee on his being  declared an evacuee and his rights as such mortgagee in the  property in  question  as evacuee property.  Under  the  Transfer  of Property  Act, 1882 the interest which the  Custodian  could claim  was the interest in the property transferred  to  the mortgagee  for securing repayment of the money  advanced  by him.   Since the mortgage was usufructuary,  the  mortgagee, and   after  his  having  been  declared  an  evacuee,   the Custodian,  could  claim  and  retain  possession  till  the mortgage debt was paid and the mortgage was discharged.   If the  property is let out in the meantime, the mortgagee  and those claiming his interest therein are entitled to  receive the rents and profits accruing front the property in lieu of interest  or  towards  part payment of  the  mortgage  debt. Under  s. 60 of that Act, the mortgagor has a right  at  any time  after the principal amount has become due  to  require the mortgagee on payment or tender of the mortgage debt  (a) to deliver to him the mortgage deed and all other  documents relating  to  the  mortgaged  property  which  are  in   the mortgagee’s  possession or power, (b) to deliver  possession where  the  mortgagee  is in  possession  of  the  mortgaged property and (c) to retransfer the mortgaged property to him or  to  such  third person as he may direct  at  his  cost. Under s. 76, the mortgagee in possession. has to manage  the property as a person of ordinary prudence would manage it if it  were his own.  Under s. 83, the mortgagor, provided  his right of redemption is not barred, may deposit in the  court where he might have instituted a suit for redemption to  the account  of the mortgagee the mortgage debt then  due.   The court thereupon has to issue a notice to the mort- 855 gagee  and on the mortgagee stating the amount due  to him and his willingness to accept the money so deposited in full discharge  of  the  mortgage debt, pay  the  amount  to  the mortgagee on his depositing the mortgage deed and all  other documents  relating  to the mortgaged property.   Where  the mortgagee is in possession of the property, the court before paying  the  amount  has to ask him  to  deliver  possession thereof  to the mortgagor.  When the mortgagor has  tendered or  deposited  in  court the. mortgage  debt  together  with interest thereon and has done all that is to be done by  him to  enable the mortgagee to take such amount out  of  court, and a notice, as aforesaid, has been served on the mortgagee under  s.  83  interest ceases to  run.   If  the  mortgagee thereafter  refuse& to accept the amount so deposited or  to deliver the mortgage deed and other documents or  possession of the property where it is in his possession, the remedy of the  mortgagor  is  to  file a  suit  for  redemption.   The position,  therefore, is that upon the mortgage  being  paid



off, the mortgagor is entitled to have the property restored to him free from the mortgagee’s security.  The repayment of the debt would be made against delivery of possession and of the mortgage deed and other documents, and these have to  be simultaneous transactions.  A tender of the mortgage deed or a  deposit thereof in court conditional upon  the  mortgagee than   and   there  delivering   possession   or   executing reconveyable, if required, and handing over the deeds  would be  a good tender so that if it were to be refused  interest would  cease  running.  It follows that a mortgagee  is  not permitted to deal with the property in such a way that  upon discharge of the debt the property cannot be restored.  [see Fisher. & Lightwood’s Law of Mortgage (8th ed.) p. 482]. Is the position of a mortgagor any the different than  under the  Transfer  of  Property Act by  reason  of  the  evacuee property  legislation  ?  In  other  words,  could  not  the appellant  have  tendered  to  the  Competent  Officer   the mortgage  amount due by him on condition that he  should  be given  physical and not merely symbolical possession of  the mortgaged property. Upon  the  mortgagee  being  declared  an  evacuee  and  his interest  as  such  mortgagee in the  premises  in  question evacuee  property,  his interest in the  mortgaged  property vested under s. 8 of the Administration Act in the Custodian from  the date of the notice issued under s. 7 of  the  Act. Under  s.  8 (4) any person in possession of  the  mortgaged property  would  be  deemed thenceforth to  be  holding  the property  on behalf of the Custodian and would be  bound  on demand  by  him  to surrender possession to  him.   The  Act having under s. 4 an overriding effect on any other law  for the  time being in force or any instrument having effect  by virtue  of  any such Act, the Custodian,  under  the  powers conferred on him by, s. 10, could take all such measures  he might consider necessary, 856 for  securing,  administering, preserving and  managing  any evacuee  property  including  transferring  "in  any  manner whatsoever"  the  evacuee property "notwithstanding  to  the contrary   contained  in  any  law  or  agreement   relating thereto".    Under   s.12,  the  Custodian   is   empowered, notwithstanding anything contained-,in any other law for the time being in force, to cancel any allotment, terminate  any lease  or amend the terms of such lease or  agreement  under which  any evacuee property is held or occupied by a  person whether  such allotment, lease or agreement was  granted  or entered  into before or after the commencement of  the  Act. Under  sub-s. 3, he is authorised to eject such  person  and take   possession,  if  such  person  fails   to   surrender possession on demand made by him in the manner provided  by s.  9 i.e., by even using such force as would  be  necessary for  taking possession.  It is conceded by  the  respondents that under these powers the Custodian had taken over posses- sion  of the mortgaged property and the property  has  since then been in possession of persons who were either  allotted portions  of it or, who were inducted therein as tenants  by the  Custodian.  It is also conceded that the Custodian  has refused,  notwithstanding demands made by the appellant,  to evict  these persons from the property and hand over  vacant possession to the appellant even on the appellant  tendering the mortgage amount.  This was presumably done by reason  of the  fact  that  though s. 12 empowers  him’  to  cancel  an allotment  or a tenancy made or created by him, r. 14(2)  of the Administration of Evacuee Property (Central) Rules, 1950 lays  down  that  in the case of a  lease  or  an  allotment granted  by the Custodian he may evict a person on a  ground



justifying eviction of a tenant under a law relating to  the Rent  Control or for any violation of the conditions of  the lease  or allotment.  From the provisions dealing  with  the vesting   of  the  evacuee  property,  the  powers  of   the Custodian,  appeals  and revisions from his  order  and  the overriding  nature of the provisions of the Act it is  clear that the Administration Act is a self-contained code. In 1951, Parliament passed the Evacuee Interest (Separation) Act, LXIV of 1951 (hereinafter referred to as the Separation Act).   The statement of objects and reasons shows  that  it was  passed  on account of the difficulty  of  administering evacuee properties in which there were both evacuee and non- evacuee  interests  and to solve the hardship felt  by  non- evacuees,  who  by  reason  of  such  properties  being   in possession   of  the  Custodian,  were  unable   to   obtain satisfaction  of  their claims in view  of  the  prohibitive provisions  of the Administration Act and in particular  its s. 17.  The Act, as its long title declares, was passed  for the  separation of interests of evacuees from those of  non- evacuee  persons in composite properties.  Sections 4 and  5 of the Act provide for the appointment of Competent Officers and  their jurisdiction.  Sec. 7 provides for submission  of claims by a person claiming interest in 857 a  composite  property.  Cl. (e) of sub-s. 2  requires  that where a claim is made by a mortgagor the total amount due on the mortgage debt and the particulars necessary to determine the same should be set out in such a claim.  Sec. 8 provides for  an  inquiry  to be made by the  Competent  Officer  and provides  that  the order to be made by him  shall  contain, amongst  other  things, the amount due to the evacuee  in  a case where the claim is made by a mortgagor.  Sub-s. 2 of s. 8, however, provides that where the Custodian has determined that  the  property in question or any interest  therein  is evacuee  property,  such  determination is  binding  on  the competent  officer.   The proviso to that  sub-section  lays down  that  nothing contained in sub-s. 2  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 s. 10.  Sec. 10 provides that notwithstanding anything  to  the  contrary in any law or  contract  or  any decree  or order of the civil court or other authority,  the competent officer may, subject to any rules that may be made in  this behalf, take all such measures as he  may  consider necessary for the purpose of separating the interest of  the evacuee  from  those  of  the  claimant  in any  composite property and in particular may               "(b) in the case of any claim of a  mortgagor               or a mortgagee,-               (i)   pay to the Custodian or the claimant the               amount  payable  under the mortgage  debt  and               redeem the mortgaged property; or               (ii)  sell   the   mortgaged   property    for               satisfaction   of   the  mortgage   debt   and               distribute the sale proceeds thereof; or               (iii) partition   the  property  between   the               mortgagor  and the mortgagee having regard  to               the  share  to which the  mortgagee  would  be               entitled in lieu of his claim;" Cl.  (c) empowers him to adopt a combination of all or  some of these measures.  The proviso to the section provides that in  any case where the claimant is a mortgagor  and  tenders the amount due, the competent officer shall accept the  same in  full satisfaction of the mortgage debt.   The  competent



officer,  by  virtue  of  the  proviso,  is  thus  under  an obligation,  where the claimant is a mortgagor  and  tenders the  mortgage  amount  due, to accept such  amount  in  full satisfaction of the mortgage debt and thereupon interest  on the  mortgage amount would cease to run.  Under cl. (b),  he is  also  empowered in such a case to redeem  the  mortgaged property. The argument was that where the mortgage amount is  tendered by  the  mortgagor and the competent officer accepts  it  in satis- 858 faction   of   the  debt  due  under   the   mortgage,   the mortgage  debt is satisfied, interest thereon ceases to  run and  the mortgage is discharged.  Consequently, there  would be  no question of the com-, petent officer adopting any  of the measures provided in sub-cls. (ii) and (iii) of cl.  (b) of  the section, that is to say, there could be no  occasion for him either to sell the property for satisfaction of  the mortgage  debt  or  to partition the  property  between  the mortgagor  and  the mortgagee, as, on  satisfaction  of  the mortgage debt the mortgage is discharged and the mortgagee’s interest  in  the mortgaged property ceases or comes  to  an end.   The  only measure which in that event  he  can  adopt would  be-  that,  under cl. (b) (i), i.e,  to  pay  to  the Custodian  the  mortgage  debt  and  redeem  the   mortgaged property.  It was said that that being the position under S. 10,  the  appellant was entitled to tender  the  mort.  gage amount in satisfaction of the debt due under the mortgage on condition   that  the  mortgage  should  be   redeemed   and possession  of  the property given to  him.   The  Competent Officer  in the proceedings-before him under S. 7 was  bound to  accept  the  mortgage amount and  redeem  the  mortgaged property.   The  argument would be valid if S. 10  had  been untrammelled  and the powers given therein to the  Competent Officer were not made subject to the rules which may be made under  the Act.  The Legislature, it seems had a purpose  in making  the powers contained in S. 10 and their exercise  by the  Competent Officer subject to the rules.  It  must  have been  aware  of  (i)  that the  Administration  Act  is,  as aforesaid,  a self-contained code, (ii) that  the  Custodian appointed  thereunder  is not an authority  subject  to  the power  or control of the Competent Officer, and  (iii)  that the  Administration Act, by ss. 10 and 12  thereof,  confers several  powers  on  the Custodian including  the  power  to transfer  the  property vested in him.   He  can  therefore, create  a  lease or grant allotment and thus induct  on  the property tenants or allottees.  Under s. 12 of that Act  the Custodian has been empowered to cancel or terminate a  lease or  allotment.   But  no  such power  is  conferred  on  the Competent  Officer  either under s. 10 or  under  any  other section  of the Separation Act, nor have the powers  of  the Custodian  been made subject to the powers of the  Competent Officer  or his orders.  On the other hand, it would  appear from a reading of the provisions of the Separation Act  that the object of enacting it was to enable non-evacuees to have their  interests separated in composite pro perties  and  to grant power to the competent officer to achieve that object. But  we do not find anywhere in either of the two  Acts  any provision  by  which the Custodian is made subject  to  the, power  or control of the Competent Officer or  enabling  the Competent  Officer to pass any order which would curtail  or otherwise affect the powers of the Custodian.  It would seem that the two Acts have different objects and schemes and the authorities  established under them are independent of  each other.  The powers conferred



859 on  the Competent Officer had, therefore, to be so  provided that  they  could be exercised in harmony  and  consistently with  the  pro-’ visions of the Administration Act  and  the duties  and functions of the Custodian thereunder.   It  was for  that reason that the Legislature laid down in s. 10  of the  Separation Act that the powers conferred Thereunder  on the  Competent Officer were to be subject to the rules  made under  that  Act.   Had it not been  so,  there  would  have resulted a conflict in the exercise of the respective powers given to the Custodian and the Competent Officer by the two. Acts, and consequently, are in the smooth working out of the provisions of the two Acts. Rule  II B of the Rules made under the Separation  Act  pro- vides  that  a  Competent  Officer  "having  regard  to  the provisions  of the proviso to s. 10 of the Act"  shall,  for the  purpose of separating the evacuee interest  from  other interests in a composite property, adopt any of the measures in the order of preference set out therein.  Cl. (b) of that rule provides that in the case of a claim by a mortgagor  or a mortgagee (1) where both the Custodian and claimant agree, the Competent Officer can exercise the powers. conferred  on him  under sub-cl. (i) or sub-cl. (iii) of cl. (b) of s.  10 of the Act and (ii) where there is no such agreement, he can sell the mortgaged property for satisfaction of the mortgage debt  and distribute the sale proceeds thereof.  The  effect of  this  rule read in conjunction with s. 10  of  the  Act, however  harsh it may apparently seem to be, is that  though the  Competent  Officer has to accept  the  mortgage  amount tendered by a mortgagor and thus discharge the mortgage debt and interest thereupon ceases to run on the principal amount and  though he can adopt any one of the measures set out  in s. 10, including redemption of the mortgage, he cannot order such  redemption and direct the Custodian to deliver  vacant possession  of the property in the absence of  an  agreement between  the  Custodian  and  the  mortgagor  claimant.   It follows that in the absence of such agreement the  mortgagor claimant  cannot demand from the Competent Officer that  the latter should accept the mortgage amount tendered by him and direct simultaneous delivery of possession of the  mortgaged property.  The power to redeem the mortgaged property  being subject to rule II B (b), the only thing that the  Competent Officer   can  at  the  most  do  is  to  order   symbolical possession,  but  he  cannot direct the  Custodian  to  give vacant possession.  The reason is clear, for, such an  order would  in  effect  be an order directing  the  Custodian  to cancel  the leases or allotments granted by him  and  eject the  tenants or allottees from the property.  Such an  order would   at   once  be  in  conflict  with  r.  14   of   the Administration  of Evacuee Property (Central)  Rules,  1950. That rule provides that while, exercising his power under s. 12  of  that Act, namely, the power to cancel  or  vary  the terms of a lease or allotment, the Custodian,- 860 in  the  case of a lease or allotment granted  by  him,  can evict  a  person  only  on any  of  the  grounds  justifying eviction of a tenant under any rent control law for the time being in force in the State concerned or for any  violation of  the conditions of the lease or the allotment.  Cl. 4  of that  rule  further  lays down  that  before  cancelling  or varying  the terms of the lease or before evicting any  less the Custodian must serve a show cause notice on such  lessee and afford him a reasonable opportunity of being heard.   If the Custodian is satisfied on hearing the concerned  lessee that  he is not liable to eviction under a rent control  Act



in  force in the State where the property is situate or  has not  contravened  any of the provisions of  the  lease,  he cannot  cancel the lease nor can he evict the lessee  except only as provided by cl. (5) of that rule on the ground that such eviction is necessary or expedient for the preservation or  proper administration or management of such property  or for  carrying  out  any  other  object  of  the  Act.    He, therefore,  cannot  evict  a tenant or an  allottee  on  the ground  that it is necessary to do so for the separation  of an interest of a non-evacuee mortgagor as that would not  be one of the purposes of the Administration Act. The result which emerges from the discussion of the relevant provisions of the two Acts and the rules thereunder made  is (i)  that  though  the Competent  Officer  must  accept  the mortgage  amount  when  tendered  by  a  mortgagor  and  the mortgage  debt  thereupon  would  be  satisfied,  he  cannot exercise  the  power to redeem the  mortgaged  property  and order  the Custodian to deliver up its vacant possession  to the mortgagor in the absence of any’ :agreement between  the mortgagor and the Custodian, and (ii) that in exercising his jurisdiction under s. 10 the Competent Officer cannot direct the  Custodian to cancel or vary the terms of the leases  or allotments made or granted by him, firstly because he has no such  power  under  s.  10 or any  other  provision  of  the Separation  Act, and secondly, because such an  order  would amount  to  compelling  the Custodian to  act  in  a  manner contrary  to  the provisions of the aforesaid  r.  14.   The exercise of the power to redeem being subject to the  rules, it  would  not be competent for the  Competent  Officer,  by reason  of r. II B (b), to order delivery of possession  by the Custodian in the absence of an agreement between him and the mortgagor-claimant. In  view  of  this position, the appellant  could  not  have insisted that he would tender or pay the mortgage debt  only against delivery of vacant possession of the property in the absence of any agreement between him and the Custodian.  The only  thing  which, the Competent Officer could  do  in  the circumstances  was to accept the mortgage  amount  whereupon interest would cease to run.  It is not in dispute that  the appellant, insisting as he was 861 all  throughout  upon  being given  vacant  and  not  merely symbolical  possession,  did  not actually  tender  or  make payment of the mortgage debt.  The mortgage debt, therefore, remained  outstanding.  The mortgage also stood intact,  and therefore,  the  only measure which  the  Competent  Officer could adopt and which in fact he, adopted was to order  sale of the property and satisfy the mortgage debt from the  sale proceeds  thereof.  The order which he passed and which  was confirmed by the Appellate Officer was in the  circumstances then   prevailing   validly  and  competently   made.    The appellant’s  grievance against it, therefore, could  not  be sustained.  [of   in  this connection  the  position  of  an auction  purchaser  as  decided  in Ek  Nawas  Khan  v.  The Competent Officer(1)]. But it is conceded that since the passing of the said  order the appellant has,-paid up the full mortgage amount and  the Competent  Officer has, as he was bound to do under  s.  10, proviso,  accepted that amount.  Presumably that amount  has been paid by him to the Custodian.  Therefore, the  mortgage debt  is  no  longer outstanding.   Though  this  event  has happened  after the impugned order was passed,, we  must  in fairness  take notice of the fact that the mortgage debt  is no longer outstanding and the mortgaged property is now free from  the  mortgagee’s  security, and  therefore,  from  the



interest vested in the Custodian.  It is true that the  Com- petent  Officer,  as already stated, can adopt  any  of  the three measures set out in s. 10(b) of the Separation Act  or adopt a combination of all or some, of them, but as emerging from  the discussion, above, he cannot redeem  the  property and order delivery of vacant possession in the absence of an agreement  between the Custodian and the appellant. That  is quite   clear.   But  the  order  of  sale  passed  by   him and confirmed by the Appellate Officer also cannot secondly, because  he  can  order sale only for  satisfaction  of  the mortgage  debt  and for distribution of  the  sale  proceeds thereof’  between  the mortgagor and the  mortgagee.   There being  now no question of the satisfaction of  the  mortgage debt  since it now stands satisfied and the  property  being now freed from the mortgagee’s security, the order for sale’ cannot  stand and cannot be allowed to stand.  At  the  same time  the  Competent Officer cannot order the  Custodian  to deliver  vacant possession although the appellant  has  paid the  mortgage amount and the Competent Officer has  accepted it in satisfaction of the mortgage debt.  In view of ss.  10 and  12 of the Administration Act, the powers and duties  of the Custodian thereunder and under the rules made under that Act, the provisions of s. 10 of the Separation Act and r. II B of the rules made thereunder, the only thing that could be offered and given to the appellant was symbolical possession of  the  property.   Such  a  result,  no  doubt,  would  be inconvenient, and may even (1)  A.T.R. 1960 All. 626. 862 appear  to  be harsh and unfair as the  appellant  would  be driven  to  file  proceedings for eviction  of  tenants  and allottees  now in possession of the property. (see  The  All India Film Corporation Ltd. v.     Raja Gyan Nath) (1). In  view  of  the  payment of the  mortgage  amount  by  the appellant and the acceptance of it by the Competent Officer, the  order directing sale has now become untenable and  has, therefore, to be set aside.  The mortgage stands  discharged and  the  Competent Officer is bound to  direct  symbolical possession  of the mortgaged property to the appellant.   To this extent the appeal succeeds.  The order for costs of the appeal  would ordinarily follow the result, but in  view  of the  fact that the Competent Officer was entitled  to  pass the order of sale in the circumstances then prevailing it is fair and equitable, though his order is set aside, that  the parties should bear their own costs. V.P.S                             Appeal allowed in part. (1) (1970] 2 S C.R. 581. 863