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
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
General heard the appeal and
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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
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
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.
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
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
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
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
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
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.
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