{"id":14903,"date":"1953-04-10T00:00:00","date_gmt":"1953-04-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ebrahim-aboobaker-and-another-vs-tekchand-dolwaniebrahim-on-10-april-1953"},"modified":"2016-08-14T11:52:22","modified_gmt":"2016-08-14T06:22:22","slug":"ebrahim-aboobaker-and-another-vs-tekchand-dolwaniebrahim-on-10-april-1953","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ebrahim-aboobaker-and-another-vs-tekchand-dolwaniebrahim-on-10-april-1953","title":{"rendered":"Ebrahim Aboobaker And Another vs Tekchand Dolwaniebrahim … on 10 April, 1953"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ebrahim Aboobaker And Another vs Tekchand Dolwaniebrahim … on 10 April, 1953<\/div>\n
Equivalent citations: 1953 AIR 298, \t\t 1953 SCR 691<\/div>\n
Author: G Hasan<\/div>\n
Bench: Sastri, M. Patanjali (Cj), Mukherjea, B.K., Das, Sudhi Ranjan, Hasan, Ghulam, Bhagwati, Natwarlal H.<\/div>\n
           PETITIONER:\nEBRAHIM ABOOBAKER AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nTEKCHAND DOLWANIEBRAHIM ABOOBAKER AND ANOTHERV.CUSTODIAN-GEN\n\nDATE OF JUDGMENT:\n10\/04\/1953\n\nBENCH:\nHASAN, GHULAM\nBENCH:\nHASAN, GHULAM\nSASTRI, M. PATANJALI (CJ)\nMUKHERJEA, B.K.\nDAS, SUDHI RANJAN\nBHAGWATI, NATWARLAL H.\n\nCITATION:\n 1953 AIR  298\t\t  1953 SCR  691\n CITATOR INFO :\n RF\t    1961 SC1391\t (14)\n E\t    1965 SC 951\t (10)\n R\t    1967 SC 106\t (4)\n RF\t    1974 SC2325\t (7)\n\n\nACT:\nAdministration\tof Evacuee Property Act (XXXI of 1950),\t ss.\n2(d)  and  (f),\t 7-Proceedings for  declaring  a  person  an\nevacuee\t and  his  properties  evacuee\tproperties-Death  of\nperson\t pending   proceedings-Abatement   of\tProceedings-\nContinuation of proceedings against successors-Legality.\n\n\n\nHEADNOTE:\n   Where a Mohammedan against whom proceedings are commenced\nunder the Administration of Evacuee Property Act, 1950,\t for\ndeclaring   him\t an  evacuee  and  his\tproperties   evacuee\nproperties  dies during the pendency of the  proceedings  he\ncannot\tbe  declared  an evacuee after his  death,  and\t his\nproperties  which on his death vest in his heirs  under\t the\nMohammedan law -cannot be declared evacuee properties.\n\n\n\nJUDGMENT:\n<\/pre>\n
 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 65 of 1953.
\n Appeal\t by special leave granted by the Supreme  Court\t on
\n13th March, 1953, from the Judgment and Order dated the 30th
\nJuly, 1951,. of the Custodian General of Evacuee Property in
\nNo. 31-A\/Judi.\/50.\n<\/p>\n
 Petition  No. 247 of 1952, a petition under Article 32\t of
\nthe Constitution for enforcement of fundamental rights,\t and
\nPetition  for Special Leave to Appeal No. 106 of  1952\twere
\nalso beard along with Civil Appeal No. 66 of 1953.\n<\/p>\n
692<\/span><\/p>\n
K.T. Desai for the appellants and petitioners.
\nC.K.  Daphtary, Solicitor-General for India  (Porus  A.Mehta
\nwith him) for the respondent in Petition No. 247.
\n    1953.   April  10,\t The  Judgment\tof  the\t Court\twas
\ndelivered by
\nGHULAM\tHASAN J.-In order to understand and  appreciate\t the
\npoint  arising\tfor consideration in this case, it  will  be
\nnecessary to set out a few preliminary facts :-
\nOne  Aboobaker Abdul Rehman, a resident of Bombay,  received
\non December 16, 1949, from the Additional Custodian, Bombay,
\na  notice  under section 7 of Ordinance No.  XXVII  of\t1949
\ncalling\t upon him to show cause why his interest in  certain
\nspecific  property  should  not be declared  to\t be  evacuee
\nproperty.   A  further notice issued on\t January  11,  1950,
\nrequired him to show cause why he should not be declared  an
\nevacuee\t and  all  his properties  declared  to\t be  evacuee
\nproperties.   On February 8, 1950, the Additional  Custodian
\ndecided\t that Aboobaker was not an evacuee, but at the\tsame
\ntime  issued  a\t fresh\tnotice\tto  him\t under\tsection\t 19,
\nrequiring him to show cause why he should not be declared an
\n“intending evacuee” and on the following day, February 9, he
\ndeclared  Aboobaker as an “intending evacuee” upon the\tsame
\nevidence.  Aboobaker does, not appear to have contested this
\norder,\tbut one Tek Chand Dolwani, first informant,  carried
\nthe matter in appeal to the Custodian General, praying\tthat
\nAboobaker  be  declared\t an evacuee and\t that  the  Imperial
\nCinema, one of his properties, be allotted to him.
\n The  Ordinance\t expired  on  October  18,  1949,  and\twas
\nreplaced by Act XXXI of 1950 (The Administration of  Evacuee
\nProperty  Act) which came into operation on April 17,  1950.
\nIt is not denied that although the Ordinance was repealed by
\nsection\t 58,  the proceedings taken in the exercise  of\t any
\npowers conferred by the Ordinance shall be deemed to have
\n693<\/span>
\nbeen  taken in the exercise of the powers conferred  by\t the
\nAct  as if the Act were in force on the day the\t proceedings
\nwere taken.\n<\/p>\n
 The appeal was heard on May 13, 1950, when the preliminary
\nobjections  in regard to the maintainability of\t the  appeal
\nwere  argued  and  the appeal was adjourned to\tMay  15\t for
\norders.\t  On  May 14, Aboobaker died leaving  him  surviving
\nthree  son and 9 daughter as his heirs under the  Mohammedan
\nlaw,  the  sons\t taking 2\/7th share each  and  the  daughter
\n1\/7th.\t On  May 15, the Custodian  General  pronounced\t the
\norder  which was, however,, dated May 13.  By this order  he
\ndismissed  the\tpreliminary  objections\t and  directed\tthat
\nfurther\t enquiries  should  be made and\t that  Aboobaker  be
\nexamined  further  on August 19, 1950.\tThe hearing  of\t the
\nappeal\twas  adjourned from time to time and was  fixed\t for
\nfinal disposal on March 7, 1951.  Notice of this hearing was
\nissued\tto  Ebrahim Aboobaker (son)  and  Hawabai  Aboobaker
\n(daughter)  who\t owned\tbetween themselves  3\/7th  share  to
\nappear\tas  the\t heirs\tand  legal  representatives  of\t the
\ndeceased.  The petitioners, who are residents of India-their
\ntwo brothers are said to have migrated to Pakistan-filed  on
\nFebruary 26, 1951, Miscellaneous Petition No. 15 of 1951, in
\nthe  Punjab  High  Court for a writ of\tprohibition  or\t for
\ndirections  or\torder  directing the  Custodian\t General  to
\nforbear\t from proceeding with the hearing of the  appeal  or
\nmaking\tany order in the said appeal or from  declaring\t the
\nproperties left by the deceased as evacuee properties.\t The
\npetitioners  contended\tinter alia that after the  death  of
\nAboobaker  the\tCustodian  General had\tno  jurisdiction  to
\nproceed with the appeal.  The petition was dismissed on\t May
\n24, 1951, the High Court holding that the Custodian -General
\nhad jurisdiction.  Leave to appeal was granted but the\tHigh
\nCourt  did  not\t stay  the hearing  of\tthe  appeal  by\t the
\nCustodian  General  which was fixed for July  3,  1951,\t and
\ndirected  that the Custodian General should not\t pass  final
\norders\tuntil  July  23, 1951.\tOn ,July  3,  the  Custodian
\nGeneral heard the appeal and
\n90<\/span>
\n694<\/span>
\non  July  30 which was the date fixed for  final  orders  he
\ndeclared Aboobaker to be &a evacuee and his properties to be
\nevacuee properties.\n<\/p>\n
On  August  6,\t1951,  the  petitioners\t filed\ta   petition
\n(Miscellaneous\tPetition No. 191 of 1951) under article\t 226
\nof  the\t Constitution in the Bombay High Court\tagainst\t the
\nCustodian  General and the Custodian, Bombay, for a writ  of
\ncertiorari for quashing and setting aside the said order and
\nfor  an order directing the Custodian General and the  local
\nCustodian  from\t acting\t upon  the  order  or  from   taking
\npossession of the property which was situate in Bombay.\t The
\npetition was dismissed by Shah J. on October 4, 1951, on the
\nground\tthat  the  Bombay High\tCourt  had  no\tjurisdiction
\nagainst the Custodian General and that the petition  against
\nthe  local Custodian was premature.  Appeal No. 88  of\t1951
\nwas  filed on October 5, 1951 against the said order to\t the
\nBombay High Court.  An interim order was passed whereby\t the
\npetitioners undertook to keep accounts and not to dispose of
\nthe   properties  while\t the  Custodian\t General   gave\t  an
\nundertaking  not to take possession pending the\t hearing  of
\nthe appeal.  The appeal came up for hearing on November\t 20,
\n1951, before the Chief Justice and Gajendragadkar J. but  it
\nwas allowed to stand over with a view to await the  decision
\nof this Court in appeal against the order of the Punjab High
\nCourt  as  they did not wish to pass any order\twhich  might
\nconflict  with the decision of this court.  That appeal\t was
\ndismissed  by  this  Court on May  26,\t1952.\tSee  Ebrahim
\nAboobaker  and\tAnother\t v.  Custodian\tGeneral\t of  Evacuee
\nProperty<\/a>(1).  This Court decided only the preliminary  point
\nthat Tek Chand Dolwani was entitled to prefer an appeal\t but
\nleft  the question about the jurisdiction of  the  Custodian
\nGeneral\t to declare the properties of Aboobaker\t as  evacuee
\nproperties  after  his death open as that question  was\t not
\nraised\tbefore it, the order of the 30th July, 1951,  having
\nbeen  passed after the filing of the appeal in\tthe  Supreme
\nCourt and also because that question
\n(1)  [1952] S.C.R. 696.\n<\/p>\n
\t\t\t   695<\/span><\/p>\n
was  pending determination in the appeal before\t the  Bombay
\nHigh Court.\n<\/p>\n
 Appeal No. 88 of 1951 was dismissed on 1st\/2nd July, 1952,
\nby   the  Chief\t Justice  and  Gajendragadkar  J.   on\t the
\npreliminary  ground that they had no jurisdiction  to  quash
\nthe order of the Custodian General passed on 30th July,1951.
\nThey declined to pass any order against the local  Custodian
\nobserving  that they could not do indirectly what could\t not
\nbe  done directly.  A petition for leave to appeal was\talso
\nrejected by the High Court on the 14th July, 1952.
\n Petition  No. 105 of 1952 is for special leave\t to  appeal
\nagainst\t the order of the Custodian General dated  July\t 30,
\n1951.  Petition No. 106 of 1952 is against the order of\t the
\nAppellate Bench of the Bombay High Court dated 1st\/2nd July,
\n1952.\tPetition No. 247 of 1952 is an independent  petition
\nunder article 32 of the Constitution, challenging the  order
\nof  the Custodian General dated July 30, 1951, as  being  in
\nviolation  of the fundamental rights of the petitioners\t and
\nbeing without jurisdiction.\n<\/p>\n
 Tek Chand Dolwani has filed a caveat against the  Petition
\nNo.  105  of 1952, while the petition under article  32\t has
\nbeen  heard upon notice to the Custodian General.   In\tthis
\npetition it is submitted that on a true construction of\t the
\nrelevant provisions of the Ordinance and the  Administration
\nof  Evacuee  Property  Act, the\t Custodian  General  had  no
\njurisdiction   to  hear\t the  appeal  after  the  death\t  of
\nAboobaker,  or\tto make any order declaring  the  properties
\nleft by him to be evacuee properties as the appeal abated on
\nhis  death and the properties vested in specific  shares  in
\nhis  heirs under the Mohammedan law.  It was urged  that  as
\nthe  said properties did not fall within the  definition  of
\nevacuee\t property  on the 30th July, 1951, or  at  any\ttime
\nafter  the death of Aboobaker, the Custodian General had  no
\njurisdiction  to  declare  the\tproperties  to\tbe   evacuee
\nproperties.   As a matter of fact, the deceased had no right,
\ntitle  or interest in the said properties after\t his  death;
\nnor  were the said properties acquired by his heirs  by\t any
\nmode of transfer
\n696<\/span>
\nfrom  the  deceased.  The order-of the 30th July,  1951,  is
\nchallenged as being void and inoperative as it violates\t the
\nfundamental  rights of the petitioners under articles  19(1)\n<\/p>\n
(f)  and 31 (1) of the Constitution.  The  petitioners\tpray
\nfor the issue of a writ of certiorari against the  Custodian
\nGeneral calling for the records of the case relating to\t the
\nabove  order and after looking into the same and going\tinto
\nthe question of the legality thereof quash and set aside the
\nsame.\tThey also ask for a writ of prohibition or  mandamus
\nor directions or an order or a writ directing the  Custodian
\nGeneral,  his  servants and agents to for bear\tfrom  acting
\nupon  or enforcing the order dated the 30th July,  1951,  or
\nfrom  taking any steps or proceedings in enforcement of\t the
\nsame.  We heard the petitioners and the Solicitor-General on
\nthe  petition under article 32 and reserved orders  till  we
\nhad  beard Dolwani who was the caveator in  the\t application
\nfor  special  leave to Appeal.\tDolwani,was  served  with  a
\nnotice\tpersonally and through his agent but neither put  in
\nappearance.  We granted the application for leave to  appeal
\nagainst the order of the Custodian General and directed\t the
\nappeal\tto be posted for hearing along with the\t application
\nunder  article\t32.  Dolwani again did not  appear  and\t we’
\nproceed,  therefore,  to  dispose  of  the  appeal  and\t the
\npetition by a common judgment.\n<\/p>\n
 The  crucial  question\t which\tarises-\t for  consideration
\nbefore\tus  is whether a person can be declared\t an  evacuee
\nafter  his death and whether the properties which  upon\t his
\ndeath  vest  in his heirs under the Mohammedan\tlaw  can  be
\ndeclared evacuee properties.  Before we proceed to determine
\nthat  question\twe must notice the objection raised  by\t the
\nSolicitor-General about the maintainability of the  petition
\nunder  article\t32 of the Constitution.\t  He  contends\tthat
\nthere is no question of any infraction of fundamental  right
\nin  the\t present  case\tas the\tpetitioners  have  not\tbeen
\ndeprived of any property without the authority of law.\t The
\nCustodian General, it is said, undoubtedly purported to\t act
\nunder  an  express  statutory  enactment.   He\tmight\thave
\nmisapplied or
\n697<\/span>
\nmisappreciated\tthe  law  or  committed\t an  error  in\t the
\nassumption  or exercise of jurisdiction, but that would\t not
\nbring the case within the purview of article 31 (1 read with
\narticle\t 19(1)\t(f)  of\t the  Constitution.   The  point  is
\ndebatable  and we do not desire to express any opinion\tupon
\nthis  point  as we propose to examine the  validity  of\t the
\norder  of the Custodian General dated July 30, 1951, in\t the
\nappeal\t(Civil\tAppeal No. 65 of 1953) which  arose  out  of
\nPetition  No. 105 of 1952 for special leave and not  on\t the
\npetition under article 32.\n<\/p>\n
Section\t 2  (d)\t and (f)  define  “evacuee”  and  “‘evacuee
\nproperty” respectively as follows:-\n<\/p>\n
(d) “Evacuee ” means any person-\n<\/p>\n
(i) who,  on account of the setting up of the Dominions\t of
\nIndia  and Pakistan or on account of civil  disturbances  or
\nthe  fear of such disturbances, leaves or has ‘ on or  after
\nthe  1st day of March, 1947, left, any place in a State\t for
\nany  place  outside  the territories  now  forming  part  of
\nIndia,or\n<\/p>\n
(ii)\t who  is resident in any place now forming part\t of
\nPakistan  and  who  for that reason  is\t unable\t to  occupy,
\nsupervise  or manage in person his property in any  part  of
\nthe territories to which this Act extends, or whose property
\nin  any\t part  of  the said territories\t has  ceased  to  be
\noccupied,  supervised or managed by any person or is  being.
\noccupied,  supervised or managed by an unauthorised  person,
\nor\n<\/p>\n
 (iii)\t who  has,  after  the 14th day\t of  August,  1947,
\nobtained, otherwise than by way of purchase or exchange, any
\nright to, interest in or benefit from any property which  is
\ntreated as evacuee or abandoned property     under  any\t law
\nfor the time being in force in Pakistan ;\n<\/p>\n
(f) ”  Evacuee\tproperty ” means any property in  which\t an
\nevacuee has any right or interest (whether personally or  as
\na,  trustee or as a beneficiary or in any  other  capacity),
\nand includes any property-\n<\/p>\n
 (1)\t which\thas  been obtained by any  person  from\t an
\nevacuee after the 14th day of August, 1947, by
\n698<\/span>
\n any  mode  of\ttransfer, unless  such\ttransfer  has  been
\nconfirmed by the Custodian.\n<\/p>\n
The use of the present tense “leaves” or “has left” in\tthe
\ndefinition  of\tevacuee\t and ” has ” in\t the  definition  of
\nevacuee property is relied upon in support of the contention
\nthat  the  object  of  the  legislature\t in  enacting  these
\nprovisions was to confine their operation to a living person
\nonly.\tThis  line  of argument may not per  se\t be  of\t any
\ncompelling  force but it receives support from the  rest  of
\nthe  provisions of the Act to which reference will  be\tmade
\nhereafter.  It may, however, be pointed out here that clause\n<\/p>\n
(f)  (1) will not apply to the case of the  petitioners\t for
\nthey  do not claim the property from the evacuee  after\t the
\n14th  day  of August, 1947, by any mode of transfer  but  by
\nright of succession under the Mohammedan law.  Succession to
\nproperty  implies devolution by operation of law and  cannot
\nappropriately be described as mode of transfer, as contended
\nfor by the Solicitor-General, which obviously contemplates a
\ntransfer inter vivos.\n<\/p>\n
 Section  7  refers  to the  notification  of  the  evacuee
\nproperty.   It\tlays  down that “where the  Custodian  a  of
\nopinion\t that  any property is evacuee property\t within\t the
\nmeaning\t of this Act, he may, after causing notice there  of
\nto  be\tgiven  in such manner as may be\t prescribed  to\t the
\npersons interested, and after holding such inquiry into’ the
\nmatter as the circumstances f the case permit, pass an order
\ndeclaring any such property to be evacuee property.”
\nRule 6, which is framed in exercise of the powers conferred
\nby  section 56 of the Act, lays down the manner\t of  inquiry
\nunder section 7 and is as follows:”\n<\/p>\n
“ (1) Where the Custodian is satisfied from information  in
\nhis possession or otherwise that any property or an interest
\ntherein\t is prima facie evacuee property, he shall  cause  a
\nnotice\tto be served, in Form No. 1, on the person  claiming
\ntitle  to such property or interest and on any other  person
\nor  persons  whom  he  considers to  be\t interested  in\t the
\nproperty.\n<\/p>\n
699<\/span><\/p>\n
(2)  The  notice shall,as far  as  practicable,mention\tthe
\ngrounds\t on  which  the property is sought  to\tbe  declared
\nevacuee property and shall specify the provision of the\t Act
\nunder  which the person claiming any title to,\tor  interest
\nin, such property is alleged to be an evacuee.
\n(3)  The  notice shall be served personally, but if that  is
\nnot  practicable the service may be effected in\t any  manner
\nprovided in rule 28. (This rule refers to a mode  of
\nsubstituted service).\n<\/p>\n
(4)  Where a notice has been duty served, and the party called
\nupon to show cause why the, property should not be  declared
\nan  evacuee property, fails to appear on the date fixed\t for
\nhearing,  the Custodian may proceed to hear the\t matter\t ex-
\nparte  and pass such order on the material before him as  he
\ndeems fit.\n<\/p>\n
(5)  Where  such  party appears and contests the  notice  he
\nshall  forthwith  file a written statement verified  in\t the
\nsame manner as a pleading under the Code of Civil Procedure,
\n1908, stating the reasons why he should not be deemed to  be
\nan  evacuee  and why the property or  his  interest  therein
\nshould\tnot be declared as evacuee property.  Any person  or
\npersons\t claiming to be interested in the enquiry or in\t the
\nproperty  being\t declared as evacuee property,\tmay  file  a
\nreply to such written statement.  The Custodian shall  then,
\neither on the same day or on any subsequent day to which the
\nhearing\t may be adjourned, proceed to hear the evidence,  if
\nany, which the party appearing to show cause may produce and
\nalso  evidence which the party claiming to be interested  as
\nmentioned above may adduce.\n<\/p>\n
(6)  After the whole evidence has been duly recorded in\t    a
\nsummary\t manner, the Custodian shall proceed   to  pronounce
\nhis   order.\tThe  order  shall  state  the\tpoints\t for
\ndetermination, and the findings thereon with brief reasons.”
\nForm No. 1 in Appendix A to the rules is as follows;-.\n<\/p>\n
700<\/span><\/p>\n
“WHEREAS there is credible information in possession of\t the
\nCustodian  that\t you are an evacuee under  clause  (iii)  of
\nsection\t 2(d) of the Administration of Evacuee Property\t Act
\non account of the grounds mentioned below:-
\n AND WHEREAS it is desirable to hear you in person ;
\n Now,  therefore, you are hereby called upon to show  cause
\n(with  all material evidence on which you wish to rely)\t why
\norders should not be passed declaring you an evacuee and all
\nyour  property as evacuee property under the  provisions  of
\nthe said Act.\n<\/p>\n
\t\t\t\t\t       Deputy
\n\t\t\t\t\t  Custodian.”\n<\/p>\n
\t\t\t\t\t Assistant
\nThe next important section is section 8 the relevant portion
\nof which is as follows:-\n<\/p>\n
  “(1)\t Any property declared to be evacuee property under
\nsection\t 7 shall be deemed to have vested in  the  Custodian
\nfor the State,-\n<\/p>\n
 (a)\t in  the  case\tof the property of  an\tevacuee\t as
\ndefined\t in sub-clause (i) of clause (d) of section 2,\tfrom
\nthe date on which he leaves or left any place in a State for
\nany  place  outside  the territories  now  forming  part  of
\nIndia;”
\n  If we substitute in section 8 the definition- of  evacuee
\nproperty  given in section 2, the meaning of section 8\twill
\nbecome clearer.\t Any property declared to be :\n<\/p>\n
 (i)\t property  in  which an evacuee has  any  right\t or
\ninterest,\n<\/p>\n
 (ii)  property which has been obtained by any\tperson from
\nan evacuee after the 14th of August,\t1947,  by any,\tmode
\nof transfer unless that\t transfer has been confirmed by\t the
\nCustodian under section 7, shall be deemed to have vested in
\nthe Custodian for the State :\n<\/p>\n
 (a)\t in  the  case\tof the property of  an\tevacuee\t as
\ndefined in sub-clause (i) of clause (d) of section 2,
\n701<\/span>
\nfrom  the  date on which he leaves or left any\tplace  in  a
\nState for any place outside the territories now forming part
\nof India.”\n<\/p>\n
The  language of the rule read with the Form  given  above,
\nthe  notice  issued to the person claiming interest  in\t the
\nproperty   which,  according  to  the  information  in\t the
\npossession   of\t the  Custodian,  is  prima  facie   evacuee
\nproperty, the manner of its service and the mode of inquiry,
\nlead  to  the  unmistakable conclusion that  the  object  of
\nsection\t 7 was to take proceedings against a  living  person
\nand  to\t that  extent the use of the present  tense  in\t the
\ndefinition   of\t “evacuee”  and\t “evacuee  property”   lends
\ncorroboration to the contention raised that the\t proceedings
\nare  intended to be applicable to living persons only.\t The
\nproperty which is declared to vest under (i) must be one  in
\nwhich an evacuee has any right or interest but the  deceased
\nhas  no\t right or interest after his death as  his  property
\nvests in his heirs.  Nor does (ii) apply as petitioners have
\nnot  obtained  the property from an evacuee by any  mode  of
\ntransfer.\n<\/p>\n
 It is obvious that property must be declared to be evacuee
\nproperty under section 7 before it can vest under section 8.
\nThere  is no doubt that when the property does so  vest\t the
\nvesting takes effect retrospectively, but where the man dies
\nbefore\tany  such  declaration\tis  made,  the\tdoctrine  of
\nrelation-back cannot be invoked so as to affect the  vesting
\nof such property in the legal heirs by operation of law.  To
\ntake a simple illustration, -if a person leaves India  after
\nthe 1st of March, 1947, the date given in section 2(d),\t and
\ndies  in Pakistan before any notice is issued to  him  under
\nsection\t 7  and\t before any inquiry  is\t held  in  pursuance
\nthereof, it is obvious that the heirs, who have succeeded to
\nhis  property,\tcannot be deprived of it  by  conducting  an
\ninquiry\t into the status of the deceased  and  investigating
\nhis right or interest in property which has already devolved
\non legal heirs.\t Section 8 in such a case will not come into
\nplay  and  there can be no vesting of the  property  retros-
\npectively before such property is declared as evacuee
\n91<\/span>
\n702<\/span>
\nproperty within the meaning of section 2(f) of the Act.
\n  Reading  sections  7 and 8 together it appears  that\tthe
\nCustodian  gets\t dominion over the property only  after\t the
\ndeclaration  is\t made.\t The declaration  follows  upon\t the
\ninquiry\t made under section 7, but until the  proceeding  is
\ntaken  under  section  7, there can be\tno  vesting  of\t the
\nproperty and consequently no right in the Custodian ‘to take
\npossession  of it.  Now if the alleged evacuee\tdies  before
\nthe  declaration,  has\tthe  Custodian\tany  right  to\ttake
\npossession of the property?  If he cannot take possession of
\nthe  property of a living person before the declaration,  by
\nthe same token he cannot take possession after the death  of
\nthe  alleged evacuee when the property had passed  into\t the
\nhands  of  the\theirs,\tThe enquiry under  section  7  is  a
\ncondition  precedent  to the making of a  declaration  under
\nsection\t 8  and\t the  right of\tthe  Custodian\tto  exercise
\ndominion  over\tthe  property  does  not  arise\t until\t the
\ndeclaration  is made.  There is no reason therefore why\t the
\nheirs  should  be  deprived of\ttheir  property\t before\t the
\nCustodian obtains dominion.\n<\/p>\n
  The  matter may be looked at from another point of  view.
\nSection\t 141  of the Civil Procedure Code  which  makes\t the
\nprocedure of the Court in regard to suits applicable in\t all
\nproceedings  in\t any Court of civil  jurisdiction  does\t not
\napply,\tas  the\t Custodian  is\tnot  a\tCourt,\tthough\t the
\nproceedings  held  by him are of a  quasi-judicial  nature.,
\nSection\t 45  of the Act applies the provisions of  the\tCode
\nonly  in respect of enforcing the attendance of\t any  person
\nand  examining him on oath and compelling the discovery\t and
\nproduction of documents.\n<\/p>\n
The  provisions of the Code relating to\t substitution  are,
\ntherefore,  inapplicable and there is no other provision  in
\nthe  Act  for the heirs to be substituted in  place  of\t the
\ndeceased so as to continue proceedings against them.  If the
\nproceedings  cannot be continued against the heirs upon\t the
\ndeath  of  the alleged evacuee, it is logical to  hold\tthat
\nthey cannot be
\n703<\/span>
\ninitiated  against  them.   We\thold,  therefore,  that\t the
\nproceedings must lapse upon the death of such person.
\n There\tis no provision in the Act that after a man  is\t de
\nad, his property can be declared evacuee property.  If\tsuch
\na provision had been made, then the vesting contemplated  in
\nsection\t 8  of\tthe Act would have by  its  statutory  force
\ndisplaced  the vesting of the property under the  Mohammedan
\nlaw  in\t the  heirs after death.  It is\t a  well  recognised
\nproposition of law that the estate of a deceased  Mohammedan
\ndevolves  on his heirs in specific shares at the  moment  of
\nhis death, and the devolution is neither suspended by reason
\nof  debts due from the deceased, nor is the distribution  of
\nthe  shares  inherited\tpostponed till the  payment  of\t the
\ndebts.\t It is also well understood that property  vests  in
\nthe  heirs  under  the Mohammedan  law,\t unlike\t the  Indian
\nSuccession    Act,   without   the   intervention   of\t  an
\nadministrator.\n<\/p>\n
Section\t 40 of the Act imposes a restriction upon the  right
\nof  an evacuee to transfer property after the  14th  August,
\n1947.\t This  section prohibits transfers inter  vivos\t but
\ncannot\taffect\tdevolution by operation of law such  as,  on
\ndeath  According  to this section where the  property  of  a
\nperson is notified or declared to be an evacuee property, he
\ncannot\ttransfer  that property after the  14th\t of  August,
\n1947, so as to confer any right on the transferee unless  it
\nis  confirmed by the Custodian.\t This shows that a  transfer
\nbetween\t the 1st of March and the 14th of August,  1947,  is
\nimmune\tfrom  the  disability of being\ttreated\t as  evacuee
\nproperty  notwithstanding  the\tfact  that  the\t  transferor
\nmigrated  after\t the 1st of March.  If he  made\t a  bonafide
\ntransfer   of  his  entire  property  before  the  14th\t  of
\nAugust,,1947,  then  the  property  does  not  acquire\t the
\ncharacter  of evacuee property and such a transfer does\t not
\nrequire.   confirmation\t by  the  Custodian,  although\t all
\ntransfers after that date are held suspect.  If the transfer
\nbetween\t the  two  crucial dates is held valid,\t then  on  a
\nparity\tof reasoning the death of the transferor before\t the
\ndeclaration after the 14th of August should lead to the same
\nresult.\n<\/p>\n
704<\/span><\/p>\n
It  was contended before us that the Act aims at fixing\t the
\nnature\tof the property from a particular date and that\t the
\nproceedings  taken are against the property and not  against
\nthe  person.  This argument is fallacious.  There can be  no
\nproperty, evacuee or otherwise, unless there is a person who
\nowns  that property.  It is the property of the owner  which
\nis  declared  to be evacuee property by reason of  the\tfact
\nthat  he is subject to disability on certain  grounds.\t The
\ndefinition  of evacuee property in the Act begins by  Baying
\n“property  in which an-evacuee has any right or interest  in
\nany capacity”.\tThe Act also shows that the property  cannot
\nbe notified as evacuee property unless and until the. person
\nclaiming interest in it has been given notice.
\n Reference  may\t also be made to section 43  as\t indicating
\nthat the declaration under section 8 was intended to be made
\nduring\tthe lifetime of the alleged evacuee.   This  section
\nlays down “where in pursuance of the provisions of this\t Act
\nany  property has vested in the Custodian neither the  death
\nof the evacuee at any time thereafter nor the fact that\t the
\nevacuee\t who  had a right or interest in that  property\t had
\nceased\tto be an evacuee at any material time  shall  affect
\nthe  vesting or render invalid anything done in\t consequence
\nthereof.”  The\tsection shows that where  the  property\t has
\nvested\tin the Custodian, then the death of the\t evacuee  or
\nhis ceasing to be an evacuee afterwards shall not affect the
\nvesting\t or  render  invalid anything  done  in\t consequence
\nthereof.  The section seems to suggest that the vesting must
\ntake place in the lifetime of the alleged evacuee, otherwise
\nthere was no point in providing that the vesting will not be
\naffected by the death of the evacuee or the evacuee  ceasing
\nto be so.\n<\/p>\n
 The  Solicitor-General contended that section 43  embodies
\nthe  principle\t“once an evacuee always an  evacuee”,,\tThis
\nconclusion is hardly justified on the terms of section 43 as
\nexplained  above  and  it finds no support  from  the  other
\nprovisions of the Act.\tThe object and the scheme of the Act
\nleave little doubt
\n705<\/span>
\nthat  the Act was intended, as its title shows,\t to  provide
\nfor the administration of evacuee property and it is  common
\nground\tthat  this property has ultimately. to be  used\t for
\ncompensating  the refugees who had lost their,\tproperty  in
\nPakistan.   The Act contains elaborate provisions as to\t how
\nthe administration is to be carried out.\n<\/p>\n
 Section 9 enables the Custodian to take possession of\tthe
\nevacuee\t property vested in him under section 8 and  section
\n10  which  defines  the powers of  the\tCustodian  generally
\nenables him to take such measures as he considers  necessary
\nor  expedient for the purposes of administering,  preserving
\nand  managing any evacuee property.  These are mentioned  in
\ndetail\tin sub-section (2) of section 10, clause (j),  which
\nauthorises  the Custodian to institute, defend\tor  continue
\nany  legal  proceedings\t in any civil or  revenue  Court  on
\nbehalf of the evacuee.\n<\/p>\n
,
\nSection\t 15  imposes  an obligation on him  to\tmaintain  a
\nseparate account of the property of each evacuee.
\nSection\t 16 empowers the Custodian to restore  the  evacuee
\nproperty  upon\tapplication  to the evacuee  or\t any  person
\nclaiming  to be his heir provided he produces a\t certificate
\nfrom the Central Government that the evacuee property may be
\nrestored to him. Upon restoration the Custodian shall  stand
\nabsolved of all responsibilities in respect of the  property
\nso  restored, but such restoration shall not  prejudice\t the
\nrights,\t if any, in respect of the property which any  other
\nperson may be entitled to enforce against the person to whom
\nthe property has been so restored.\n<\/p>\n
 By  section  62  of  the Act it is  open  to  the  Central
\nGovernment  by\tnotification  in the  Official\tGazette,  to
\nexempt\tany  person or class of persons or any\tproperty  or
\nclass  of property from the operation of all or any  of\t the
\nprovisions  of this Act.  In pursuance of this\tsection\t the
\nCentral Government issued Notification No. S.R.O. 260, dated
\nthe  3rd July, 1960, which was published in the\t Gazette  of
\nIndia, Part II, section 3,
\n706<\/span>
\ndated the 15th July, 1950, page 254, in which broadly  three
\ncategories of persons were exempted:-\n<\/p>\n
 (a)\t Any  person who on or after the 1st day of  March,
\n1947,  migrated from India to Pakistan but had\treturned  to
\nIndia  before  the 18th day of July, 1948, and\thad  settled
\ntherein ;\n<\/p>\n
(b) Any\t person\t who has left or leaves for Pakistan  on  a
\ntemporary  visit  taking  with himself a  “No  objection  to
\nreturn” certificate, and has returned, or returns, to  India
\nunder  a valid permit issued under the Influx from  Pakistan
\n(Control) Act, 1949, for permanent return to India; and\n<\/p>\n
 (c)\t Any  person  who has come from Pakistan  to  India
\nbefore the 18th day of October, 1949, under ‘a valid  permit
\nissued\tunder the Influx from Pakistan (Control) Act,  1949,
\nfor permanent resettlement in India.\n<\/p>\n
These  provisions  far\tfrom  suggesting  that\tthe   person
\ndeclared  an  evacuee suffers a civil death and\t remains  an
\nevacuee for all time show on the other hand that the  person
\nmay cease to be an evacuee under certain circumstances\tthat
\nhe  is reinstated to his original position and his  property
\nrestored  to him subject to certain conditions\tand  without
\nprejudice  to the rights if any in respect of  the  property
\nwhich  any other person may be entitled to  enforce  against
\nhim.   These  provisions also establish that the fact  of  a
\nproperty being evacuee property is not a permanent attribute
\nof such property and that it may cease to be so under  given
\nconditions.  The property does not suffer from any  inherent
\ninfirmity  but\tbecomes\t evacuee  property  because  of\t the
\ndisability  attaching  to the owner.  Once  that  disability
\nceases,\t the property is rid of that disability and  becomes
\nliable to be restored to the owner.\n<\/p>\n
 Mr.  Desai  counsel  for the petitioner  referred  in\tthe
\ncourse\tof  the arguments to section 93\t of  the  Presidency
\nTowns  Insolvency  Act\tand section 17′\t of  the  Provincial
\nInsolvency Act.\t According to the former “if a debtor by  or
\nagainst whom an insolvency petition has been presented dies,
\nthe proceedings in the
\n707<\/span>
\nmatter\t shall,\t unless\t the  Court  otherwise\torders,\t  be
\ncontinued as if he were alive”.\t By the latter section
\n“if a debtor by or against whom an insolvency petition\thas
\nbeen  presented dies, ‘the proceedings in the matter  shall,
\nunless\tthe Court otherwise orders, be continued so  far  as
\nmay be necessary for the realisation and distribution of the
\nproperty of the debtor”.  Though there is slight  difference
\nin  the\t language  of  these  two  sections,  the  principle
\nunderlying the insolvency law seems to be that the death  of
\nthe  insolvent\tduring the pendency of the  application\t for
\ninsolvency does not cause the proceedings to abate but\tthat
\nthey  must  be\tcontinued  so that  his\t property  could  be
\nadministered for the benefit of the creditors.\tThere is  no
\nsuch provision in, the Act before us.  It follows  therefore
\nthat  if the intention of the legislature had been to  treat
\nthe  person proceeded against under section 7 as  alive\t for
\npurposes  of  the proceedings even after his death,  such  a
\nprovision would have been incorporated into the Act.
\n After giving our best consideration to the case we are\t of
\nopinion that the order of the 30th July, 1951, passed by the
\nCustodian General declaring Aboobaker Abdul Rehman  deceased
\nas  an\tevacuee\t and the property left\tby  him\t as  evacuee
\nproperty cannot stand and must be set aside.  We accordingly
\nallow Appeal No. 65 of 1953, arising out of Petition No. 105
\nof  1952  and  hold  that  the\tCustodian  General  had\t  no
\njurisdiction  to pass the order of the 30th July, 1951,\t and
\nset it aside.  We make no order as to costs.\n<\/p>\n
 Petition No. 106 of 1952 is not pressed and no order  need
\nbe  passed  in\trespect thereto.  In view of  our  order  in
\nAppeal No. 65 of 1953, no orders are called for in  Petition
\nNo. 247 of 1952.\n<\/p>\n
\t\t\t\t       Appeal allowed.\n<\/p>\n
Agent for the appellants and petitioners : Rajinder Narain.
\nAgent for the respondent in Petioion No. 247: G.  H.
\nRajadhyaksha.\n<\/p>\n
92<\/span>
\n708<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ebrahim Aboobaker And Another vs Tekchand Dolwaniebrahim … on 10 April, 1953 Equivalent citations: 1953 AIR 298, 1953 SCR 691 Author: G Hasan Bench: Sastri, M. Patanjali (Cj), Mukherjea, B.K., Das, Sudhi Ranjan, Hasan, Ghulam, Bhagwati, Natwarlal H. PETITIONER: EBRAHIM ABOOBAKER AND ANOTHER Vs. RESPONDENT: TEKCHAND DOLWANIEBRAHIM ABOOBAKER AND ANOTHERV.CUSTODIAN-GEN DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-14903","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nEbrahim Aboobaker And Another vs Tekchand Dolwaniebrahim ... on 10 April, 1953 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ebrahim-aboobaker-and-another-vs-tekchand-dolwaniebrahim-on-10-april-1953\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ebrahim Aboobaker And Another vs Tekchand Dolwaniebrahim ... on 10 April, 1953 - 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