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PETITIONER: RAJA BHANUPRATAP SINGH

       Vs.

RESPONDENT: ASSISTANT CUSTODIAN EVACUEE PROPERTY U.P.

DATE OF JUDGMENT: 29/07/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1966 AIR  245            1966 SCR  (1) 304  CITATOR INFO :  R          1968 SC 457  (5,10)  R          1976 SC2557  (32)

ACT: Administration  of  Evacuee Property Act (31 of  1950),  ss. 10(1) and 10(2)(m) and (n)-Scope of.

HEADNOTE: The  appellant was the holder of a money decree  against  an evacuee  whose property had vested in the Custodian.   Under s.  17 of the Administration of Evacuee Property Act,  1950, the  property  was  not liable to be  proceeded  against  in execution  so long as it remained vested in  the  Custodian, and  the  appellant  could not take  steps  to  execute  the decree.  He  therefore  applied to the  Custodian  under  s. 10(2)(n)  of the Act, for satisfaction of his claim  out  of the assets of the evacuee.  The application was rejected  on the  ground  that the Custodian had no power  to  grant  the relief and the order was confirmed by the Custodian General, in revision. In his appeal to this Court the appellant contended that the Custodian should have entertained his claim. HELD : The orders passed by the Custodian and the  Custodian General must be set aside and the proceeding remanded to the Custodian to determine the questions, whether in the opinion of  the Custodian, the appellant was entitled to any sum  of money  out of the funds in the Custodian’s ion and  whether, for  the  purpose of administration and  management  of  the evacuee property or for enabling him satisfactorily to  dis- charge his duties under the Act the Custodian should pay the amount claimed. [311 H; 312 A] Section  10(1)  of  the  Act, sets out  the  powers  of  the Custodian  generally,  and the diverse clauses of  s.  10(2) illustrate the specific purposes for which the powers may be exercised, These clauses are not mutually exclusive.   Under cl.  (in), before its amendment by Act 91 of  1956,  express power to entertain a claim for satisfaction of debts due  by the  evacuee was conferred upon the Custodian.   Clause  (n) confers  upon the Custodian power, coupled with a  duty,  to pay to the evacuee or to any member of his family or to  any other  person,  who  in  the opinion  of  the  Custodian  is

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entitled, any sum of money out of the estate of the evacuee. ’Me  words "any other person" are not restricted to  persons who  are members of the evacuee’s family, but include  other persons  as well who are entitled to receive money from  the evacuee.   Thus,  the power to pay the evacuee’s  debts  was derived both under cls. (in) and (n) of s. 10(2)  Therefore, the  deletion from cl. (in) of the Custodian’s power to  pay the   debts,   by  the  Amending  Act  of  1956,   and   the consequential  deletion of r. 22 of the rules  framed  under the  Act, by which a machinery was provided  for  exercising that  power, did not affect the power which is conferred  by s. 10(2)(n) and by s. 10(1).  The power to administer, under s.  10(1), is not merely a power to manage on behalf of  the evacuee so as to authorise the Custodian only to recover and collect  the  assets of the evacuee; it  includes  power  to discharge his obligations as well, to pay such debts  which, in  the  opinion  of the Custodian,  are  binding  upon  the evacuee. [307 C; 309 C-D; 311 C-E] 305 A decree of the civil court is not decisive of the  question whether  a  Person making a claim is entitled to  the  money claimed by him; it is for the Custodian to determine whether he is so entitled.  The Custodian has to form his  "opinion" on  this question, and in forming his opinion, he  must  act judicially and not arbitrably. [311 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 124 of 1963. Appeal  by special leave from the judgment and  order  dated January 22, 1962, of the Deputy Custodian General of  India, New Delhi No. 472/R/UP/1961. S. S. Shukla, for the appellant. Gopal Singh and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Shah, J Rani Manraj Koer obtained money decrees in two suits Nos.  9 of 1932 and 42 of 1932 filed by her in the Court  of the  Subordinate Judge, Lucknow against Nawab  Mohammad  Ali Khan  Qazilbash Zamindar, Aliabad Estate, in Uttar  Pradesh. From  time to time execution applications were filed by  the decree   holder  against  the  Zamindar,  but  nothing   was recovered.  Rani Manraj Koer died on October 1, 1941 and the appellant  was brought on the record as her heir  and  legal representative.  Nawab Mohammad Ali Khan Qazilbash also died and  five persons amongst whom was one Nawab Ali  Raza  Khan were  impleaded  as legal representatives in  the  execution proceedings. In  January  1950 Nawab Ali Raza Khan (Talukdar  of  Aliabad Estate) who was substantially the only judgment debtor  from whose  estate  the amounts due were liable to  be  recovered migrated  to Pakistan and he was declared an  evacuee  under the  provisions  of the Administration of  Evacuee  Property Ordinance  27  of  1949  which was  later  replaced  by  the Administration  of  Evacuee Property Act 31  of  1950.   The Custodian of Evacuee Property took possession of the  estate of  the evacuee and applied to the Civil Judge, Lucknow  for removal  of  attachment levied on the estate  by  the  Civil Judge, Bahraich in execution of the decrees at the  instance of the appellant.  The Civil Judge, Lucknow, by order  dated July  22,  1950 directed that  the  "transfer  certificates" issued  in  the two decrees be recalled and  the  papers  be consigned  to the record.  Against the order passed  by  the Civil Judge, Lucknow appeals were preferred by the appellant to the High Court at Allahabad.  By order dated February 22,

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1960  the High Court held that after the  Custodian  entered upon  the  management of the properties of  the  evacuee  by virtue of S. 17 of the Administration 306 of  Evacuee Property Act, so long as the  property  remained vested in the Custodian under the provisions of that Act  it was  not  liable  to  be proceeded  against  in  any  manner whatsoever in execution of any decree or order of any  court or other authority. On September 27, 1960 the appellant applied to the Custodian for  an  order under s. 10(2) (n) of the  Administration  of Evacuee Property Act, 1950, directing that his claim for Rs. 1,27,638/2/under the two decrees in suits Nos. 9 of 1932 and 42  of 1932 be satisfied out of the assets belonging to  the estate  of  Nawab Ali Raza Khan.   The  Assistant  Custodian General,  Evacuee  Property, U.P.  Lucknow,  exercising  the powers  of  the Custodian rejected the  application  holding that he had no power to grant relief to the appellant of the nature claimed.  In exercise of his revisional jurisdiction, the Custodian General Evacuee Property, New Delhi, confirmed the  order,  and  the appellant  has,  with  special  leave, appealed against that order. The question which falls to be determined in this appeal is, whether the Custodian is entitled to entertain the claim  of the  holder  of  a  money decree  against  the  evacuee  for satisfaction  of  his dues out of the assets vested  in  the Custodian by s. 7 of the Administration of Evacuee  Property Act.  The Custodian held that he had no such power, and  the Custodian  General agreed with him.  Section 10 of  the  Act deals with the powers and duties of the Custodian generally. By sub-s. (1) it is provided :               "Subject  to the provisions of any rules  that               may be made in this behalf, the Custodian  may               take  such measures as he considers  necessary               or  expedient  for the purposes  of  securing,               administering,  preserving  and  managing  any               evacuee property and generally for the purpose               of  enabling him satisfactorily  to  discharge               any  of the duties imposed on him by or  under               this  Act  and may, for any  such  purpose  as               aforesaid, do all acts and incur all  expenses               necessary or incidental thereto."               Sub-section (2) provides :               "Without  prejudice to the generality  of  the               provisions  contained in sub-section (1),  the               Custodian   may,  for  any  of  the   purposes               aforesaid,-               (n)pay to the evacuee, or to any member  of               his  family or to any other person as  in  the               opinion of the Custodian is entitled  thereto,               any  sums  of money out of the  funds  in  his               possession."                             307 By  Subs.  (2) of s. 10 specific powers and  duties  of  the Custodian  are set out.  It illustrates the  general  powers and  duties  under  sub-s.  (1).   The  argument  that   the expression  "any other person" in cl. (n) must be  construed ejusdem  generis  with  "evacuee" or  ,.any  member  of  his family"  has,  in  our  judgment, no  force.   The  rule  of interpretation ejusdem generis applies where a general  word follows particular and specific words of the same nature  as it-self  : it has no application where there is no genus  or category  indicated  by  the  Legislature.   The  clause  is intended  to confer upon the Custodian power coupled with  a duty to pay to the evacuee or to any member of his family or

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to  any other person who in the opinion of the Custodian  is entitled  to  any  sum of money out of  the  estate  of  the evacuee.   The  powers of the Custodian and the  duties  are undoubtedly  to  be  exercised  under  sub-s.  (2)  for  the purposes   mentioned  in  sub-s.  (1)  i.e.  for   securing, administering, preserving and managing any evacuee  property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him.  To ascertain the  limits upon and extent of those purposes, the  position of the Custodian qua the estate of the evacuee vested in him must first be determined.  Section 7(1) allies the Custodian to  declare after enquiry any property as  evacuee  property within the meaning of the Act, and the property so  declared is  deemed to vest in the Custodian from the date  specified in s. 8. But the vesting of the property in the Custodian is for  the  purposes of the Act i.e.  for  administration  and management.   By  the vesting for purposes of  the  Act  the Custodian  does  not become the owner of the property  :  he holds  it for the evacuee and is bound to administer  it  in the  manner provided by the Act.  The appropriation  of  the property  must depend upon statutory provisions  enacted  by the Parliament.  By s. 17(1) of the Act as amended by Act 22 of 1951 with retrospective operation it was provided that :               "Save  as  otherwise provided in this  Act  no               evacuee property which has vested or is deemed               to  have  vested in the  Custodian  under  the               provisions  of this Act shall, so long  as  it               remains  so vested, be liable to be  proceeded               against in any manner whatsoever in  execution               of  any decree or order of any court or  other               authority, and any attachment or injunction or               order  for  the appointment of a  receiver  in               respect of any such property subsisting on the               commencement of the Administration of  Evacuee               property (Amendment) Act, 1951, shall cease to               have effect on such commencement and shall  be               deemed to be 308 The  second part of the sub-section deals with avoidance  of attachment, or injunction or order for the appointment of  a receiver  in respect of any evacuee  property-subsisting  on the  date  of the commencement of the Act of 1951,  and  the first  part interdicts recourse to the evacuee  property  so long  as it remains vested in the Custodian, by  process  of any  court  or authority for obtaining satisfaction  of  any claim  against the property.  It is clear from the  language of  the,  section  that whether the  claim  be  against  the evacuee  or it is against the Custodian arising out  of  any acts  of  administration done by him, the  evacuee  property cannot  be attached in execution of any decree or  order  of any  court or other authority.  The Legislature has  thereby completely   excluded   the  jurisdiction  of   courts   and authorities to execute decrees or orders passed against  the Custodian  or  the evacuee to proceed against  the  property vested in the Custodian.  The intention clearly is that  the administration  shall continue for the purposes of  the  Act without any interference by the process in execution of  the decrees  or orders of courts or other authorities.   But  it does not appear to be the intention of the Legislature  that the Custodian should be entitled to collect the property  of the  evacuee and not be under an obligation to  satisfy  his debts  and  obligations.  The argument of  counsel  for  the Custodian  that  the  Custodian  is  merely  to  manage  the property and is not invested with power to pay the debts due by the evacuee or to discharge liabilities of the evacuee is

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not  borne  out by the terms and the scheme of s.  10.   The powers conferred and the duties imposed by S. 10(1) are  for the  purposes  of securing,  administering,  preserving  and managing  the  evacuee property, and there is no  reason  to attribute  to  the Legislature an attempt  at  tautology  by assuming  that "administering" is used in the same sense  as the  expression  "managing".   Again  sub-s.  (2)  makes  it abundantly  clear that the powers conferred and  the  duties imposed  are  not  merely  incidental  to  management  as  a statutory  agent  of the evacuee.  For  instance,  upon  the Custodian is conferred the power to carry on the business of the evacuee with all the discretion which the carrying on of the business of the evacuee may necessitate : he is entitled to complete buildings which are required to be completed, to keep evacuee property in good repair, and to take action  as may  be  necessary for the recovery of any debt due  to  the evacuee : see cls. (d), (e) and (i) of sub-s. (2) of S.  10. Power  is  also conferred upon the Custodian by cl.  (j)  to institute,  defend or continue any legal proceeding  in  any civil  or  revenue court on behalf of the evacuee  :  he  is given  the power to refer disputes between the  evacuee  and any other person to arbitration or to compromise any claims, debts or liabilities on 309 behalf of the evacuee.  Clause (j) implies the power and its concomitant   duty  to  satisfy  the  claim  which  may   be determined  in any legal proceeding instituted, defended  or continued in any civil or revenue court, or awarded  against the  evacuee,  or admitted or undertaken by  virtue  of  the compromise.   The  argument of the Custodian,  if  accepted, would lead to the somewhat startling result that a decree or an  award  made  in favour of the evacuee  in  a  proceeding commenced  or continued by or against the Custodian  may  be enforced  by the Custodian, but the property of the  evacuee remains free from all claims, obligations and liabilities of the  evacuee,  even  if  decreed by  a  competent  court  or undertaken  and  accepted by him.  There is nothing  in  the statute  which  compels  us  to  lend  countenance  to  this inequity.   The  words  used  in  cl.  (n)  empowering   the Custodian to pay to "any other person" any sums of money out of the funds in his possession are not restricted to persons who  are members of the family of the evacuee; they  include other persons as well who are entitled to receive money from the evacuee. The  decree of a civil or revenue court or an order  of  any other authority is, it must be observed, not decisive of the validity  or admissibility of the claim against the  evacuee property.  It is for the Custodian to be satisfied about the genuineness  of  the claim.  The  Custodian  must  determine whether  a  person  making a claim against  the  evacuee  is entitled  to the right claimed, and if he is satisfied,  the claim may be discharged out of the funds in his  posession . But  by  the use of the expression "in the  opinion  of  the Custodian" it was not intended to invest the Custodian  with arbitrary  authority.  It is for the Custodian to  determine when  a  claim is made by the evacuee, or a  member  of  his family  or any other person for payment of a sum  of  money, having  regard  to  all the  circumstances,  whether  it  is genuine and to satisfy it if in the opinion of the Custodian such a person is entitled to the payment.  Where a claim  is made by a person who claims to be a creditor of the  evacuee and  he satisfies the Custodian that he is entitled  to  any sum of money, then normally the Custodian would be justified in  discharging  the obligations of the evacuee out  of  the funds in his possession.

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But counsel for the Custodian relies upon the    terms of 3. 10 (2) (m) as they originally stood before they were amended by   Act 91 of 1956 and the deletion of Rule 22 framed under the  Act, in support of the contention that  the  Parliament has  deliberately taken away the power to entertain a  claim for  satisfaction of debts due by the evacuee.   Section  10 (2) (m), as it originally stood, provided: 310 .lm15 "incur  any  expenditure, including the  payment  of  taxes, duties,  cesses  and  rates to Government or  to  any  local authority;  or  of any amounts due to any  employee  of  the evacuee or of any debt due by the evacuee to any person." Under Rule 22 made in exercise of the powers under S. 56  of the  Act, provision was made for registration of  claims  by persons claiming to receive payment from any evacuee or from any  property of such evacuee, whether in re-payment of  any loan advanced or otherwise, by presenting a petition to  the Custodian.   Tim Custodian was entitled to register a  claim under  cl.  (2)  where in was supported by  a  decree  of  a competent court or a registered deed executed and registered before  14-8-1947  or  by a  registered  deed  executed  and registered  on  or after 14-8-1947, and the  transaction  in respect of which the deed was so executed and registered had been confirmed by the Custodian, or where an  acknowledgment in  writing was executed by the evacuee himself  before  the 1st  March  1947  or  where such claim  was  of  the  nature referred  to  in  the Explanation to sub-rule  (1)  and  the transfer of property in respect of which the claim was  made was  a  bona fide transaction.  If the claim  did  not  fall under sub-rule (2) the Custodian had to direct the  claimant to establish his claim in a civil court Sub-rules (3) &  (4) provided :               "(3)  The mere registration of a  claim  shall               not  entitle the claimant to payment  and  the               Custodian  may  for  reasons  to  be  recorded               refuse payment.               (4)No  debt incurred by the evacuee  before               the property vested in the Custodian shall  be               paid  without  the  sanction  of  the  Central               Government or Custodian General." The  Explanation to sub-rule (4) set out cases in which  the sanction of the Central Government was not necessary. The Administration of Evacuee Property Act, 1950 was  amend- ed  by Act 91 of 1956 and the words "or of any amounts  duly to  any  employee of the evacuee or of any debt due  by  the evacue  to  any person" in s. 10(2) (m) were  deleted.   The Central Government thereafter issued on February 20, 1957 an order  deleting  Rule  22.  Relying  upon  this  legislative development,  it  was con tended, that an express  power  to entertain  a  claim  for satisfaction of debts  due  by  the evacuee was conferred upon the Custodian by s. 10(2) (m) and machinery was provided for effectuating the                             311 exercise  of  that  power in Rule 22,  and  the  Legislature having deleted the clause which authorised the Custodian  to exercise  the power to pay debts and the machinery  in  that behalf, no such power remained vested in the Custodian. We are, however, unable to agree that because of the  amend- ment  made in s. 10(2) (m) and the deletion of Rule  22  the power  which is vested in the Custodian under s.  10(2)  (n) must be held restricted.  Sub-section (1) of s. 10 sets  out the  powers  of  the Custodian generally,  and  the  diverse clauses  in sub-s. (2) illustrate the specific purposes  for which the powers may be exercised, and there is no reason to

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think that the clauses in sub-s. (2) are mutually exclusive. If power to pay the debts was derived both under cls. (m)  & (n)  as it appears it was, deletion of the  provision  which authorised the Custodian to pay debts due by the evacuee  to any person from cl. (m) and of Rule 22 setting up the machi- nery  for  registration of debts did not, in  our  judgment, affect the power which is conferred by cl. (n) by sub-s. (2) and  also  by  s.  10(1).  In our  judgment,  the  power  to administer is not merely a power to manage on behalf of  the evacuee  so as to authorise the Custodian merely to  recover and collect the assets of the evacuee, but to discharge  his obligations  as well.  The power to administer for  purposes mentioned,  having regard to the diverse clauses  in  sub-s. (2),  includes  the  power to pay such debts  which  in  the opinion  of  the  Custodian are binding  upon  the  evacuee. Specific  enunciation of that power in cl.  (n)  authorising the Custodian to pay to any other person who in the  opinion of  the Custodian is entitled to any sum of  money  supports that conclusion. As  already observed, the decree of the civil court  is  not decisive of the question whether a person making a claim  is entitled to the sum of money claimed by him.  It is for  the Custodian to determine whet-her the claimant is entitled  to receive the sum of money claimed by him out of the funds  in his  possession.   He  has to form  his  "opinion"  on  this question  :  of course, in forming his opinion he  must  act judicially and not arbitrarily.  As the Tribunals below have determined the claim raised before them only on the question of  jurisdiction to entertain it and not on the  merits,  we are  unable  to pass any effective order in  favour  of  the appellant.  The orders passed by the Custodian and the  Cus- todian   General  must  therefore  be  set  aside  and   the proceeding  remanded  to  the  Custodian  to  determine  the question  whether  in  the  opinion  of  the  Custodian  the appellant  is entitled to any sum of money out of the  funds in   his   possession  and  whether  for  the   purpose   of administration and management of the evacuee property 312 or  for enabling him to satisfactorily discharge his  duties under the Act the amount claimed should be paid. The  appeal  is therefore allowed.  The appellant  would  be entitled to his costs in this appeal from the Custodian.                       Appeal allowed. 313