10 February 1955
Supreme Court


Case number: Appeal (civil) 97 of 1952






DATE OF JUDGMENT: 10/02/1955


CITATION:  1955 AIR  282            1955 SCR  (1)1259

ACT: Constitution of India, Arts. 5 and 7 and Proviso to Art.  7- Wife  migrated from India to Pakistan after the  1st  March, 1947-Her  husband  continued  to be  in  India-Wife  whether citizen of India Art. 7 overriding Art. 5-Administration  of Evacuee   Property   Ordinance   1949   (XXVII   of   1949)- Administration  of Evacuee Property Act, 1950 (Act  XXXI  of 1950)-Evacuee Property Ordinance (Bihar Ordinance No. III of 1949)-Evacuee   Property-Definition  of   Whether   includes interest  of  an  evacuee in property  held  as  trustee  or beneficiary and whether includes wakf property and  interest therein.

HEADNOTE: The relevant portion of Art. 5 of the Constitution reads:- "At  the commencement of this Constitution every person  who has his domicile in the territory of India and who was  born in the territory of India shall be a citizen of India". Article 7 of the Constitution lays down:- "Notwithstanding anything in Art. 5, a person who has  after the first day of March 1947, migrated from the territory  of India to the territory now included in Pakistan shall not be deemed to be a citizen of India". It was contended on behalf of the respondent Kumar Rani  who had  migrated from India to Pakistan in 1948 that  she  was, and  continued to be, a citizen of India on the ground  that she was born in India and her domicile continued to be  that of her husband, who throughout continued to be in India  and that her case was covered by Art. 5 of the Constitution. Held   (repelling  the  contention)  that  Art.  7  of   the Constitution clearly overrides Art. 5. As the respondent had migrated  from India to Pakistan after the 1st March,  1947, her  case  fell under Art. 7 of the  Constitution  and  that inasmuch  as  it was a case of an unauthorised issue  of  an invalid permit which had been properly cancelled the proviso to  Art. 7 did not apply and that therefore  the  respondent could not be deemed to be a citizen of India. Held  also,  that  the definitions of  the  phrase  "evacuee property"   in  the  Administration  of   Evacuee   Property



Ordinance  1949 and the Administration of  Evacuee  Property Act  1950 (XXXI of 1950) clearly include the interest of  an evacuee  in any property held as a trustee  or  beneficiary. The  definition  of  evacuee property  in  Evacuee  Property Ordinance 1949 (Bihar Ordinance No. III of 1949) is not 1260 different  and  the words used therein  comprise  also  wakf property and any interest therein.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 97 and  98 of 1952. Appeals   under  Articles  132(1)  and  133(1)(c)   of   the Constitution of India from the Judgment and Decree dated the 13th  October 1950 of the High Court of Judicature at  Patna in Miscellaneous Judicial Cases Nos. 140 and 107 of 1950. M.   C. Setalvad, Attorney-General for India (G.  N.  Joshi, Lal  Narain  Sinha  and P. G. Gokhale  with  him),  for  the appellant in C.A. Nos. 97 and 98 of 1952. B.   Sen and I. N. Shroff, for the respondents Nos.  I to 4. 1955.  February 10.  The Judgment of the Court was delivered by JAGANNADHADAS J.-These are two connected appeals arising out of  a.  common judgment of the High Court of  Patna  on  two applications  to it dated the 5th July, 1950 and 28th  July, 1950,  under article 226 of the Constitution.  The State  of Bihar is the appellant in both the appeals.  The first three respondents  in  Appeal No. 97 are the sons  of  the  fourth respondent   therein,  viz.   Kumar  Rani  Sayeeda   Khatoon (hereinafter  referred  to as Kumar Rani).  The  said  Kumar Rani  is  also the first respondent in Appeal No.  98.   The other  respondents  in  both  the  appeals  are   Government Officers  under  the  appellant, the State  of  Bihar.   The applications  before the High Court arose with reference  to action  taken against (1) the property, and (2) the  person, of  Kumar Rani by the Officers of the Government  of  Bihar, under the following circumstances. Kumar Rani was admittedly born in the territory of India and claims  to  be the lawfully wedded wife of  Captain  Maharaj Kumar  Gopal  Saran Narayan Singh of Gaya by  virtue  of  an alleged  marriage  between them in 1920  according  to  Arya Samaj rites and subsequently according to Muslim rites,  She owned and 1261 possessed  considerable properties.  In 1946 she  created  a wakf  of her properties consisting of 427 villages  for  the maintenance  and  support  of herself, her  sons  and  their descendants, by executing a deed of Wakf-ulalAulad dated the 4th  May,  1946, by which she divested herself  of  all  her interest in the said properties and vested them in  Almighty God.   She appointed, herself as the sole mutwalli  for  her life  time  or until relinquishment, and her three  sons  to succeed her as joint mutwallis.  The deed also provided that the  net  income  was to be spent  for  the  maintenance  of herself and her three sons with the direction that not  more than half should be spent by the wakifa for her own use.  In July, 1948, Kumar Rani went to Karachi.  In December,  1948, she  returned to India from Pakistan on a  temporary  permit and went back to Pakistan in April, 1949.  On the 21st June, 1949,   the   Bihar  Administration  of   Evacuee   Property Ordinance, 1949 (Bihar Ordinance No. III of 1949) came  into force.   The Deputy Custodian of Evacuee Property  issued  a notification on the 2nd September, 1949, under section 5  of



this  Ordinance, declaring all the properties  comprised  in the  abovementioned  wakf  estate  to  have  vested  in  the Custodian  as  being evacuee property.  He  took  possession thereof  between the 20th September and 2nd  October,  1949. On  the 14th May, 1950, Kumar Rani again came back to  India under a permanent permit obtained from the High Commissioner for India in Pakistan.  This permit was, however,  cancelled on the 12th July, 1950, by the Deputy High  Cominissioner,on the  ground  that  this  was  wrongly  issued,  without  the concurrence  of the Government, a.-, required by  the  rules made under the Influx from Pakistan (Control) Act, 1949.  In view  of  this cancellation, the  Sub-Inspector  of  Police, Gaya,  issued notice to Kumar Rani directing her that  since her  permanent permit had been cancelled, she  should  leave lndia  by the 31st July, 1950.  In view of these  happenings two applications were filed before the High Court of  Patna, one  dated the 5th July, 1950, challenging the  validity  of the action taken by the Deputy Custodian declaring the  wakf estate as evacuee property and taking posses- 1262 sion  thereof on the basis of that declaration, and  another application  dated  the  28th July,  1950,  challenging  the validity of the order of the Sub-Inspector of Police,  Gaya, directing  Kumar  Rani to leave India.  The first  of  these applications  was filed by Kumar Rani along with  her  three sons  as  petitioners and the second by  Kumar  Rani  alone. Both  these applications were allowed by the High Court  and hence  these  appeals by the State on leave granted  by  the High Court.  These two connected appeals came up for hearing be-fore this Court on the 26th and 27th October, 1953.  This Court after hearing counsel on both sides was of the opinion that  one of the essential facts (to be mentioned in  detail herein below when dealing with Appeal No. 97) requisite  for a proper decision of Appeal No. 97 had been assumed  without investigation  and that it was necessary to have  a  finding thereupon after taking evidence.  This Court accordingly re- manded  Appeal No. 97 to the High Court to submit a  finding and  directed  that on the receipt of the finding  both  the appeals  (Appeals Nos. 97 and 98) should be heard  together. The finding has now been received and the appeals have  been re heard.  It is necessary at this stage to mention that the advocate  who  appeared  for the  respondents  in  both  the appeals  at  the prior hearing appeared before  us  at  this hearing  and stated that he had been instructed to  withdraw his appearance in these appeals and to allow the hearing  to proceed ex parte. The  preliminary facts having been stated as above, it  will now be convenient to deal with these two appeals separately. Appeal  No. 98 which raises the fundamental question  as  to the  continuing citizenship of Kumar Rani will be  taken  up first. Civil Appeal No. 98 of 1952. This appeal arises out of the application to the High  Court dated  the 28th July, 1950, challenging the validity of  the order dated the 23rd July, 1950, issued by the Sub-Inspector of  Police,  Gaya.  This order is challenged on  the  ground that  Kumar  Rani  was, and throughout continued  to  be,  a citizen of India and                             1263 that  the  order  dated  the  23rd  July,  1950,  which,  in substance,  amounted  to  an order of  her  externment  from India,  was in violation of Kumar Rani’s  fundamental  right under article 19 of the Constitution as a citizen of  India. The  question that arises is whether, in the  circumstances, Kumar Rani was a citizen of India at the date of the  order.



The  contention  of Kumar Rani is that though it is  a  fact that she did go to Pakistan in the year 1948, she went there only for a temporary purpose, viz. for securing the  medical treatment  of  a reputed Hakim and that she was  always  and continued to be a citizen of India and that, therefore,  the High  Commissioner  for India in Pakistan had  no  power  to cancel the permit issued to her.  As regards her  allegation that  when she first went to Karachi in July, 1948, she  did so  temporarily  for the purpose of medical  treatment,  the learned Judges of the High Court were not inclined to accept her  story.  But, all the same, they held that she  was  and continued  to be a citizen of India, on the ground that  she was born in India and that her domicile continued to be that of  her husband, Captain Maharaj Kumar Gopal  Saran  Narayan Singh,  who, it is not disputed, throughout continued to  be in  India.  The learned Judges of the High Court  apparently had  article 5 of the Constitution in mind and acted on  the view  of the English law that the wife’s domicile  continues throughout to be that of her husband during the  continuance of  marriage.   It  appears to us, with  respect,  that  the learned  Judges  of  the High  Court  completely  overlooked article  7  of the Constitution.  The  relevant  portion  of article 5 of the Constitution says as follows: "At the commencement of this Constitution, every person  who has his domicile in the territory of India and who was  born in the territory of India shall be a citizen of India". In  the view of the High Court since Kumar Rani was born  in India and bad the Indian domicile of her husband, she was  a citizen of India.  But article 7 says:       "Notwithstanding anything in article 5, a person 162 1264 who  has after the first day of March, 1947,  migrated  from the  territory  of India to the territory  now  included  in Pakistan shall not be deemed to be a citizen of India". There  is  a proviso to this article which will  be  noticed presently.  But before noticing the proviso and its  effect, it is necessary to mention the following facts which may  be taken  to have been made out on the record. (1)  Kumar  Rani went  to Karachi in July, 1948. (2) Her story that she  went there temporarily for medical treatment has been doubted  by the  High Court and appears to us to be unfounded. (3)  When she  came  to  India  in December, 1948, she  did  so  on  a temporary  permit  stating in her application for  the  said permit  that she was domiciled in Pakistan  and  accordingly representing  herself  to be a Pakistani national.  (4)  She went back to Pakistan in April, 1949, on the expiry of  that temporary permit. (5) She made an attempt to obtain a permit for  permanent  return to India only after  steps  had  been taken  to vest the property in the Custodian and  after  the same  was  taken possession of.  There can be  no  doubt  on these facts that she must be held to have migrated from  the territory  of  India  after the 1st March,  1947.   Even  if therefore  article 5 can be said to be applicable to her  on the  assumption that Captain Narayan Singh was  her  husband and  that  her domicile was that of her husband,  the  facts bring her case under article 7. Article 7 clearly  overrides article  5.  It  is peremptory in its  scope  and  makes  no exception  for such a case, i.e., of the wife  migrating  to Pakistan  leaving  her husband in India.  Even such  a  wife must  be  deemed  not to be a citizen of  India  unless  the particular  facts  bring  her case  within  the  proviso  to article 7. This proviso is as follows: "Provided  that  nothing in this article shall  apply  to  a person  who, after having so migrated to the  territory  now



included in Pakistan, has returned to the territory of India under  a permit for resettlement or permanent return  issued by or under the authority of any law".          It is contended with reference to this proviso that                             1265 since she in fact returned under a permanent permit, she  is entitled  to  the benefit there of and that  the  subsequent cancellation  of  the  said  permit  is  both  illegal   and irrelevant.   Rule  10  of the Permit  System  Rules,  1949, framed  by  the Central Government under section  4  of  the Influx  from Pakistan (Control) Act, 1949, provides  that  a permit for permanent resettlement in India may be granted by the High Commissioner or Deputy High Commissioner only after securing  the agreement of the State or the  Province  where the  applicant  intends to settle.  Rule  29  provides  that every  permit  issued  under the rules shall  be  liable  to cancellation at any time, without any reason being  assigned by  the issuing authority.  In the present case, the  permit has  been cancelled in a reasoned order on the ground  that, on  the  facts  of  the  case,  the  consent  of  the  State Government  concerned should have been obtained  before  the permit could be issued.  This is a case, therefore, not of a valid  permanent  permit having been issued and  the  permit holder  returning to India on the strength thereof  and  the same having been arbitrarily cancelled.  It is a case of  an unauthorised  issue  of  an invalid permit  which  has  been properly cancelled.  Hence the proviso to article 7 can have no possible application.  The applicant, is, therefore,  not a citizen of India and the order passed by the Sub-Inspector of Police, Gaya, dated the 23rd July, 1950, directing  Kumar Rani to leave India was accordingly valid.  This appeal must therefore succeed.                Civil Appeal No. 97 of 1952. This appeal arises out of the application to the High  Court dated  the 5th July, 1950, challenging the validity  of  the notification  dated  the 2nd September 1949, issued  by  the Deputy  Custodian under the Bihar Administration of  Evacuee Property  Ordinance,  1949,  declaring the  wakf  estate  as evacuee property and taking possession thereof.  Three  main grounds on which this has been contested are as follows: (1) Kumar Rani was not an evacuee. (2) She had written a  letter dated  the  2nd June, 1949, addressed to  her  ,second  son, Kumar Fateh Singh, whereby she relin- 1266 quished  the  office  of mutwalli in the  wakf  estate,  and therefore  by virtue of the said letter and in pursuance  of the  terms  of the original deed of  wakf, her  three  sons, respondents  I to 3, had become the joint mutwallis as  well as the owners of the beneficial interest in the wakf estate. It  being  undisputed  that these three  remained  in  India throughout, it is contended that the property at the date of the  notification was the property of these three  sons  and not   of   Kumar  Rani  and  that,  therefore,   the   Bihar Administration  of Evacuee Property Ordinance, 1949, has  no application  to the facts. (3) The Bihar  Administration  of Evacuee Property Ordinance, 1949, is not applicable to  wakf property  and to the beneficial interest of  the  applicants therein.   So  far  as  the  first  point  is  concerned  an "evacuee" is defined as follows in the Bihar  Administration of Evacuee Property Ordinance, 1949: "A person 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 November, 1946, left,  any  place  in  the Province of Bihar for any place outside the territories  now



forming part of India". It  is  clear  that,  as already  found  above,  Kumar  Rani migrated  to Pakistan from India after the 1st March,  1947. In view of the fact that her plea as to the reason for  such migration  has not been accepted, she can well be  taken  to have left India for Pakistan in the circumstances set out in this  definition, and after the prescribed date.   She  has, therefore,  been  rightly taken to be’ an "evacuee"  by  the Custodian.   As  regards  the  second  point,  the   alleged relinquishment  of the office of mutwalli by Kumar Rani  and the  vesting  of the interest in the wakf  property  in  her three sons, respondents 1 to 3, as joint mutwallis  thereof, by  virtue of the terms of the’ deed of wakf, is based on  a letter  addressed to the second respondent, her  second  son Kumar  Fateh Singh, purporting to have been written  by  her and  dated  the  2nd June, 1949.  The  genuineness  of  this letter has been challenged and it is the issue as to it 1267 genuineness  that  was  remanded to the  High  Court  for  a finding  by  the previous order of this Court.  The  7  High Court  having taken evidence on the matters at  the  hearing after  remand  and having considered the same,  has  clearly found that the letter was not genuine.  We have gone through the finding and the material relevant thereto, and can  find no  reason  not  to  accept it.   There  is,  therefore,  no substance  in this second contention.  As regards the  third point,  the  contention is based on the  definition  of  the phrase  "evacuee  property" in the Bihar  Administration  of Evacuee Property Ordinance, 1949, which is as follows: "Evacuee property means any property in which an evacuee has any right or interest or which is held by him under any deed of  trust or other instrument".  It is contended  that  this definition does not apply either to the wakf property or  to the  beneficial interest of the mutwalli therein  and  that, therefore,  the  property in question did not  vest  in  the Custodian.    Now,   as   already   stated,   the   original notification vesting the wakf property in the Custodian  was made under section 5 of the Bihar Administration of  Evacuee Property  Ordinance, 1949.  This Ordinance was  repealed  by section  55(2) of Central Ordinance No. XXVII of 1949.   The Central Ordinance defined "evacuee property" as "any property in which an evacuee has any right or interest, whether personal or as a trustee or as beneficiary or in any other capacity". The Central Ordinance was in turn repealed by Cenral Act No. XXXI of 1950 and "evacuee property" has been defined therein as meaning     "any property of an evacuee whether held by him as  owner or as a trustee or as a beneficiary or as a tenant or in any other capacity". The word "property" is defined as meaning " property of any kind and includes any right or interest in such property". The Central Ordinance which repealed the Bihar Ordinance  as well   as  the  Central  Act  which  repealed  the   Central Ordinance, each contain section 8(2) providing that 1268 "   where  immediately  before  the  commencement  of   this Ordinance  (Act)  any  evacuee property in  a  Province  has vested in any person exercising the power of Custodian under any  law repealed hereby, the evacuee property shall on  the commencement  of the Ordinance (Act) be deemed to have  been vested  in  the Custodian appointed or deemed to  have  been appointed  for  the Province under the Ordinance  (Act)  and shall continue to so vest".



The  definitions  of the phrase "evacuee  property"  in  the Central  Ordinance  and  by the Central Act  are  clear  and unambiguous  so as to include the interest of an evacuee  in any property held as a trustee or beneficiary.  There is  no reason  to think that "evacuee property" as defined  in  the Bihar  Ordinance  was meant to be anything  different.   The words  used in this definition are of  sufficient  amplitude and  we  are  of  the  opinion  that  the  Bihar  definition comprised  also wak property and interest therein.   We  are also of the opinion that the successive repeals of the Bihar Ordinance  by the Central Ordinance and the Central Act  and the continuance of the vesting in the Custodian, places  the matter  beyond any doubt.  This contention must,  therefore, fail.  This appeal also must accordingly succeed. In  the result both the appeals are allowed.  The  appellant in the circumstances will get only the costs incurred before the High Court on remand in Civil Appeal No. 97 of 1952. Appeals allowed.