# [1962] 1 S.C.R. 246

- **Citation:** [1962] 1 S.C.R. 246
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeals Nos. 7 to 9 of 1959
- **Bench:** K. Subba Rao, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1962-1-s-c-r-246-2007
- **Pages:** 5

## Headnote

.....
Evacuee Property-Custodian, Powers of-Whether can deter4
mine and recover rent in summary manner-Administration of
Evacuee Property Act, I950 (JI of Ig50). s. Io-Administration of
Evacuee Property (Central) Rules, r950, r. IO.
The appellants exchanged their property in Pakistan with
the property of an evacuee in India. They applied for confirmation of the transaction which was granted by the Deputy
Custodian. Later, the Custodian revised the order and set aside
the confirmation and ordered the ejectment of the appellants
from the properties which were the subject of exchange. He
further ordered that they should render accounts of the rents
and profits realised by them from this property. The appellants contended that the Custodian had no jurisdiction to pass
any order requiring them to render accounts of the rents and
profits.
Held, that the Custodian had no powerunder the Administration of Evacuee Property Act to direct a person in unauthorised possession of evacuee property to render accounts of rents
and profits thereof without resorting to the ordinary remedy
provided by law, that is, by way of suit.
CrvIL APPELLATE JURISDICTION:
Civil Appeals
Nos. 7 to 9 of 1959.
Appeals by special leave from the judgment and
order dated June 25, 1955, in cases Nos. 0551-R/CG/
54, 0602-R/CG/54 and 0503-R/CG/54 of 1954.
Achhru Ram and B. R. L. Ayengar, for the appellants.
Gopal Singh and T. M. Sen, for the respondents.
1961. March 10. The Judgment of the Court was
delivered by
l
-
Mudholkar J.
MuDHOLKAR, J.-These are appeals by special leave
from three orders against an order passed on March
12, 1954 by the Custodian General, Evacuee Property,
disposing of three revision petitions, two of which
were preferred by one Bharoo Mal (since deceased)
,) ...
t
•
I
~-
j
1 S.C.R. SUPREME COURT REPORTS
247
and one by his wife, and now widow, Padma Devi.
r96r
Even though a common order was passed by the CusBharoo Mal
todian-General, three appeals have been preferred
& Others
before this Court.
'
·
v.
The facts leading upto the appeals are briefly as cu,todian General,
follows:
Evacuee Property
An agreement was entered into between Bharoomal
and one Nanan Begum on April 11, 1948 for the exMudholkar J.
change of Bharoomal's properties at Sukkar in Sind,
Pakistan for Nanan Begum's properties at Lucknow.
Prior to that, on April 7, 1948 a similar agreement
was entered into between Padma Devi and one Tahir
Ali. It is common ground that in pursuance of the
agreement Bharoomal and Padma Devi entered into
possession of the properties obtained by them in exchange from Nanan Begum and Tahir Ali respectively
and the latter entered into possession of the properties
belonging to the former situated in Sukkar. The deed
of exchange was to be executed within two years of
the date of agreement; but in fact it was never executed. Consequently in the year 1950 Bharoomlal and
Padma Devi instituted three suits for specific performance. These suits were decreed and sale deeds conveying certain properties to Bharoomal and certain
properties to Padma Devi were executed by the Court
in February, 1952.
In October, 1949 the U. P. Administration of Evacuee Property Ordinance, 1949 (I of 1949) was promulgated and shortly thereafter the Administration of
Evacuee Property (Chief Commissioners Provinces)
Ordinance, 1949 (12 of 1949), promulgated by the Central Government, was extended to the United Provinces replacing U. P. Ordinance I of 1949. Nanan Begum
and Tahir Ali having migrated to Pakistan, Bharoomal and Padma Devi made three applications under
cl. 25(2) of the Central Ordinance for confirmation of
the exchanges in their favour. These applications
were granted by the Deputy Custodian of Evacuee
Property in the year 1950. Sometime in the year 1951
the Custodian of Evacuee Property suo motu revised
the orders of the Deputy Custodian passed in the year
1950 on the ground that the agreements on the basis
248
SUPREME COURT R,EPORTS
[1962]
r96r
of which the applications for

## Text

March IO.
246
SUPREME COURT REPORTS
BHAROO MAL AND OTHERS
v.
[1962]
CUSTODIAN GENERAL, EVACUEE PROPERTY.
(K. SUBBA RAO, RAGHUBAR DAYAL and
J. R. MUDHOLKAR, JJ.)
.....
Evacuee Property-Custodian, Powers of-Whether can deter4
mine and recover rent in summary manner-Administration of
Evacuee Property Act, I950 (JI of Ig50). s. Io-Administration of
Evacuee Property (Central) Rules, r950, r. IO.
The appellants exchanged their property in Pakistan with
the property of an evacuee in India. They applied for confirmation of the transaction which was granted by the Deputy
Custodian. Later, the Custodian revised the order and set aside
the confirmation and ordered the ejectment of the appellants
from the properties which were the subject of exchange. He
further ordered that they should render accounts of the rents
and profits realised by them from this property. The appellants contended that the Custodian had no jurisdiction to pass
any order requiring them to render accounts of the rents and
profits.
Held, that the Custodian had no powerunder the Administration of Evacuee Property Act to direct a person in unauthorised possession of evacuee property to render accounts of rents
and profits thereof without resorting to the ordinary remedy
provided by law, that is, by way of suit.
CrvIL APPELLATE JURISDICTION:
Civil Appeals
Nos. 7 to 9 of 1959.
Appeals by special leave from the judgment and
order dated June 25, 1955, in cases Nos. 0551-R/CG/
54, 0602-R/CG/54 and 0503-R/CG/54 of 1954.
Achhru Ram and B. R. L. Ayengar, for the appellants.
Gopal Singh and T. M. Sen, for the respondents.
1961. March 10. The Judgment of the Court was
delivered by
l
-
Mudholkar J.
MuDHOLKAR, J.-These are appeals by special leave
from three orders against an order passed on March
12, 1954 by the Custodian General, Evacuee Property,
disposing of three revision petitions, two of which
were preferred by one Bharoo Mal (since deceased)
,) ...
t
•
I
~-
j
1 S.C.R. SUPREME COURT REPORTS
247
and one by his wife, and now widow, Padma Devi.
r96r
Even though a common order was passed by the CusBharoo Mal
todian-General, three appeals have been preferred
& Others
before this Court.
'
·
v.
The facts leading upto the appeals are briefly as cu,todian General,
follows:
Evacuee Property
An agreement was entered into between Bharoomal
and one Nanan Begum on April 11, 1948 for the exMudholkar J.
change of Bharoomal's properties at Sukkar in Sind,
Pakistan for Nanan Begum's properties at Lucknow.
Prior to that, on April 7, 1948 a similar agreement
was entered into between Padma Devi and one Tahir
Ali. It is common ground that in pursuance of the
agreement Bharoomal and Padma Devi entered into
possession of the properties obtained by them in exchange from Nanan Begum and Tahir Ali respectively
and the latter entered into possession of the properties
belonging to the former situated in Sukkar. The deed
of exchange was to be executed within two years of
the date of agreement; but in fact it was never executed. Consequently in the year 1950 Bharoomlal and
Padma Devi instituted three suits for specific performance. These suits were decreed and sale deeds conveying certain properties to Bharoomal and certain
properties to Padma Devi were executed by the Court
in February, 1952.
In October, 1949 the U. P. Administration of Evacuee Property Ordinance, 1949 (I of 1949) was promulgated and shortly thereafter the Administration of
Evacuee Property (Chief Commissioners Provinces)
Ordinance, 1949 (12 of 1949), promulgated by the Central Government, was extended to the United Provinces replacing U. P. Ordinance I of 1949. Nanan Begum
and Tahir Ali having migrated to Pakistan, Bharoomal and Padma Devi made three applications under
cl. 25(2) of the Central Ordinance for confirmation of
the exchanges in their favour. These applications
were granted by the Deputy Custodian of Evacuee
Property in the year 1950. Sometime in the year 1951
the Custodian of Evacuee Property suo motu revised
the orders of the Deputy Custodian passed in the year
1950 on the ground that the agreements on the basis
248
SUPREME COURT R,EPORTS
[1962]
r96r
of which the applications for confirmation were made
by Bharoomal and Padma Devi do not amount to
Bharoo
~'l-f al
.,, Others
transfers and that consequently they could not be
v.
confirmed. He also held that the deeds of transfer
Custodian Genernl, obtained by Bharoom:i,l and Padma Devi from the
Evacuee Property Court were not confirmed by the Custodian and that,
therefore, the possession of Bharoomal and Padma
Mudholkar J. Devi over the properties in question which were ad.
mittedly evacuee properties was unauthorised. He,
therefore, ordered that possession of the properties be
taken back from Bharoomal and Padma Devi and that
they should be required to account for the rents and
profits realised by them from these properties. These
persons preferred applications for revision before the
Custodian-General of Evacuee Property. Their applications were, as already stated, rejected by him.
In the appeal to this Court the only ground pressed
is that the Custodian had no jurisdiction to pass an
order requiring the appellants to render accounts
of the rents and profits from tho properties in tlieir
possession. Mr. Achhruram, who appears for them,
accepts the position that the orders of the Deputy
Custodian of Evacuee Property passed in the year
1950 confirming the transfers were rightly set aside
by the Custodian in revision. Therefore, only a short
question falls to be determined by us and that is whether the Custodian was right in further ordering the
appellants to render accounts of rents and profits from
the properties in their possession.
We asked Mr. Gopal Singh, who appears for the
Custodian-General, to show us any provision in the
Act or in the rules which authorises the Custodian of
Evacuee Property to direct a person who is alleged to
be in un,authorised possession of evacuee property to
render accounts for rents and profits of those properties without resorting to the ordinary remedy provided by law, that is, by way of suit.
Mr. Gopal Singh contends that as soon as Nanan
Begum and Tahir Ali migrated to Pakistan their property in India automatically vested in the Custodian
of Evacuee Property under cl. 5( I) of the U. P. Ordinance I of 1949 and continued to vest under Central
..
... \
t
•
I •
•
• •
r
1 S.C.R. SUPREME COURT REPORTS
249
Ordinance No. XII of 1949 which replaced the U. P.
r96r
Ordinance. By virtue of sub-s. (2) of s. 8 of the
Bharoo Mal
Administration of Evacuee Property Act, 1950 (XXXI
,,. Othm
of 1950) which came into force on April 18, 1950, the
v.
property which is vested in the Custodian under any Custodian General,
law repealed by the Act shall be deemed to ho evacuee Evacuee Properly ·
property within the meaning of the Act and shall be
-·-
deemed to have vested in the Custodian appointed
Mudholkar J.
under that Act. The Central Ordinance XH of 1949
was one of the laws repealed by the Act. He then
referred to s. 10 and contended that thereunder the
Custodian has the power to recover from an urnwthorised occupant of evacuee property the rents and profits realised by him during the period of his unauthorised occupation. Sub-section (1) of s. 10 reads thus:
"Subject to the provisions of any rules that may
be made in this behalf, the Custodian may take
such measures as he considers necesilary or expedient for the purposes of securing, administering, preserving and managing any evacuee proparty and
generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on
him by or under this Act and may, for any such
purpose as aforesaid, do all acts and incur all
expenses necessary OP incidental thereto."
According to him the words "for the purposes of securing, administering, preserving and managing any
evacuee property" effectively confer on the Custodian
power to recover rents and profits of the property
from the person in possession. There is nothing in
the words relied on from which a power of the kind
contended for by learned counsel can be deduced.
Sub-section (2) of s. 10 specifically enumerates some of
the powers of the Custodian. Learned counsel was
not able to point to anything in the sub-section which
confers power on the Custodian to recover rents and
profits from a person in unlawful possession of the
properties. Learned counsel then referred to r. 10
and said that this rule would entitle the Custodian to
determine and recover rents and profits from unauthorised occupants of evacuee property.
Sub-rule l
32
250
SUPREME COURT REPORTS
[1962)
1961
of r. 10 undoubtedly authorises the Custodian to recoBharoo Mal
ver possession of property from the evacuee or from a
& Others
person whether holding on behalf of, or under the
v.
evacuee or otherwise and not having a lawful title to
Custodian General, possession thereof as against the Custodian. There is
' Evacuee Property nothing in this sub-rule which further entitles the
-
Custodian to determine and ;recover rents and profits
Mudholkar J. from an unauthorised occupant of evacuee property.
Sub-rule 2 of r. 10 empowers the Custodian to issue a
notice to a tenant or a licencee in possession of evacuee
property whom the Custodian cannot eject or does
not want to eject. For one thing this sub-rule cannot
apply to a person who is alleged to be in unauthorised
occupation of evacuee property. Then again it does
not confer any power on the Custodian to determine
rents and profits or to recover rent in a summary
manner. In the circumstances we must hold that
this provision also does not help the respondent.
Such being the legal position, we must quash and set
aside that portion of the order of the Custodian, confirmed by the Custodian General, which requires the
appellants to pay rents and profits in respect of properties of N anan Begum and Tahir Ali in their possession. Both parties will, however, be at liberty to
take such steps as may be open to them at law for
establishing or enforcing their respective claims.
Costs of the appeal will be borne by the respondents. As the appeals were argued together there
will be only one hearing fees.
Appeals allowed.
• •
t
1