# ABDUL HAKIM KHAN AND OTHERS v. THE REGIONAL SETTLEMENT COMMISSIONER

- **Citation:** [1962] 1 S.C.R. 531
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-hakim-khan-and-others-v-the-regional-settlement-commissioner-2144
- **Pages:** 9

## Headnote

Evacuee Property-Declaration of share in joint propertySeparation proceedings-Order vesting entire property in Custodian
-Legality of-Evacuee Interest (Separation) Act, r95r (64 of r95r),
S. II.
A Muslim died leaving some property and several heirs.
Some of the heirs became evacuees and their 4/7th share in the
property was declared nnder s. 7 of the Administration of
Evacuee Property Act, r950, to be evacuee property. Thereafter, proceedings were taken for the separation of the interest
of the evacuees, but as none of the claimants appeared, the Competent Officer passed an order under s. II of the Evacuee Interest (Separation) Act, r95r, vesting the entire property in the
Custodian.
Held, that the order vesting the entire property in the Custodian was illegal. The share of the evacuees had been determined as 4/7ths and the Competent Officer was only required to
separate it. Section II could not vest in the Custodian any
·~
property which was not evacuee property. This section deals
only with cases where the whole property has been declared to
be evacuee property and the claim is as mortgagor or mortgagee
or to an undivided share in the property. In such cases in the
absence of a claim having been filed or having been filed and
found unsustainable, s. II vests the whole property in the Custodian.
Ebrahim Aboobaker v. Tek Chand Dolwani, [r953] S.C.R. 691,
referred to.
ORIGINAL JURISDICTION:
Petition No. 91 of 1956.
Petition under Art. 32 of the Constitution of India
for enforcement of fundamental rights.
S. P. Sinha, Shaukat Hussain, E. Udayarathnam
and S. S. Shukla, for the petitioners.
N. S. Bindra, R.H. Dhebar and T. M. Sen, for the
respondents Nos. 1 to 4.
1961. March 22.
The Judgment of the Court was
delivered by
I96I
March 22.
Abdul Hakim
Khan &· Others
v.
The Regional
Settlenient
Com1nissioner
Sarkar ] ,
532
SUPREME COURT REPORTS
[1962]
SARKAR, J.-One Abdul Hai died about 1943. He
left certain immovable properties. He had three wives
and children by each. One of his wives predeceased
him. On his death the wives and children, surviving
him, succeeded to these properties in certain shares.
One of the surviving wives and a daughter died subsequently.
It appears that the remaining wife of Abdul Hai
and his six children by her, went to Pakistan but the
~
time when they did so does not appear. It is not however disputed that they had become evacuees and
their shares in the properties could be properly declared evacuee property. A notice under s. 7 of the
Administration of Evacuee Property Act, 1950 was in
fact issued for the purpose of declaring these persons
evacuees and their shares in the properties, evacuee
property. Proceedings were taken pursuant to the
notice and on August 14, 1952, an order was made
declaring the migrants evacuees and a 4/7th share in
certain properties, evacuee property as belonging to
them. Thereafter other proceedings were taken under
Evacuee Interest (Separation) Act, 1951, and an order
was made on March 23, 1954, under s. 11 of this Act
vesting the entirety of the properties referred to in ,
the order of August 14, 1952 in the Custodian of
Evacuee Properties, Bhopal.
This petition under Art. 32 of the Constitution challenges the validity of the orders of August 14, 1952,
and March 23, 1954, as violating the petitioners' fundamental right to hold property, to wit, their shares
in the properties covered by the orders. It is presented by the surviving children of Abdul Hai by his two
deceased wives, excepting Abdul Aziz.
Abdul Aziz
however has been made a respondent to the petition
but is not opposing it. It is not in dispute that the
petitioners and Abdul Aziz never became evacuees and
are entitled to undivided shares in the properties declared to have vested in the Custodian in their entirety. The petition is opposed by the other respondents,
namely, the Government of India and various officers
concerned with the Acts, and it will be convenient to
describe them alone as the respondents.
•
'~
I
•)

## Text

•
1 S.C.R. SUPREME COURT REPORTS
531
ABDUL HAKIM KHAN AND OTHERS
v.
THE REGIONAL SETTLEMENT
COMMISSIONER
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Evacuee Property-Declaration of share in joint propertySeparation proceedings-Order vesting entire property in Custodian
-Legality of-Evacuee Interest (Separation) Act, r95r (64 of r95r),
S. II.
A Muslim died leaving some property and several heirs.
Some of the heirs became evacuees and their 4/7th share in the
property was declared nnder s. 7 of the Administration of
Evacuee Property Act, r950, to be evacuee property. Thereafter, proceedings were taken for the separation of the interest
of the evacuees, but as none of the claimants appeared, the Competent Officer passed an order under s. II of the Evacuee Interest (Separation) Act, r95r, vesting the entire property in the
Custodian.
Held, that the order vesting the entire property in the Custodian was illegal. The share of the evacuees had been determined as 4/7ths and the Competent Officer was only required to
separate it. Section II could not vest in the Custodian any
·~
property which was not evacuee property. This section deals
only with cases where the whole property has been declared to
be evacuee property and the claim is as mortgagor or mortgagee
or to an undivided share in the property. In such cases in the
absence of a claim having been filed or having been filed and
found unsustainable, s. II vests the whole property in the Custodian.
Ebrahim Aboobaker v. Tek Chand Dolwani, [r953] S.C.R. 691,
referred to.
ORIGINAL JURISDICTION:
Petition No. 91 of 1956.
Petition under Art. 32 of the Constitution of India
for enforcement of fundamental rights.
S. P. Sinha, Shaukat Hussain, E. Udayarathnam
and S. S. Shukla, for the petitioners.
N. S. Bindra, R.H. Dhebar and T. M. Sen, for the
respondents Nos. 1 to 4.
1961. March 22.
The Judgment of the Court was
delivered by
I96I
March 22.
Abdul Hakim
Khan &· Others
v.
The Regional
Settlenient
Com1nissioner
Sarkar ] ,
532
SUPREME COURT REPORTS
[1962]
SARKAR, J.-One Abdul Hai died about 1943. He
left certain immovable properties. He had three wives
and children by each. One of his wives predeceased
him. On his death the wives and children, surviving
him, succeeded to these properties in certain shares.
One of the surviving wives and a daughter died subsequently.
It appears that the remaining wife of Abdul Hai
and his six children by her, went to Pakistan but the
~
time when they did so does not appear. It is not however disputed that they had become evacuees and
their shares in the properties could be properly declared evacuee property. A notice under s. 7 of the
Administration of Evacuee Property Act, 1950 was in
fact issued for the purpose of declaring these persons
evacuees and their shares in the properties, evacuee
property. Proceedings were taken pursuant to the
notice and on August 14, 1952, an order was made
declaring the migrants evacuees and a 4/7th share in
certain properties, evacuee property as belonging to
them. Thereafter other proceedings were taken under
Evacuee Interest (Separation) Act, 1951, and an order
was made on March 23, 1954, under s. 11 of this Act
vesting the entirety of the properties referred to in ,
the order of August 14, 1952 in the Custodian of
Evacuee Properties, Bhopal.
This petition under Art. 32 of the Constitution challenges the validity of the orders of August 14, 1952,
and March 23, 1954, as violating the petitioners' fundamental right to hold property, to wit, their shares
in the properties covered by the orders. It is presented by the surviving children of Abdul Hai by his two
deceased wives, excepting Abdul Aziz.
Abdul Aziz
however has been made a respondent to the petition
but is not opposing it. It is not in dispute that the
petitioners and Abdul Aziz never became evacuees and
are entitled to undivided shares in the properties declared to have vested in the Custodian in their entirety. The petition is opposed by the other respondents,
namely, the Government of India and various officers
concerned with the Acts, and it will be convenient to
describe them alone as the respondents.
•
'~
I
•)
1 S.C.R. SUPREME COURT REPORTS
533
The first question raised is as to the validity of the
order dated August 14, 1952, made under the Act of
1950. It is said that the order is a nullity as the notice
under s. 7 of this Act on which it was based, was bad
for the reason that it was issued to Abdul Aziz who
was, admittedly, not an evacuee. It seems to us that
it is unnecessary to decide this question for it is not
a matter with which the petitioners are in any way
concerned. The proceedings under that Act did not
purport to affect their interest in the properties and
they cannot, therefore, challenge the order made under
it. Further, as we have earlier said, it is not in dispute that the shares of the surviving wife of Abdul
Hai and her children in the properties could properly
be declared evacuee property under the Act since they
had migrated to Pakistan. The order of August 14,
1952, only declared what purported to be their shares,
to be evacuee property. By such a declaration no
right of the petitioners is affected.
The second question raised concerns the order of
March 23, 1954, made under the Act of 1951.
This
order vests the entirety of certain properties left by
Abdul Hai including the petitioners' shares in them,
as evacuee property and, therefore, clearly affects the
petitioners. We think that the petitioners' grievance
against this order is of substance and the order as it
stands cannot be sustained.
This order was made under s. 11 of the Act of 1951.
This Act was passed "to make special provisions for
the separation of the interests of evacuees from those
of other persons in property in which such other persons are also interested": see the preamble to the Act.
It creates an officer called the "Competent Officer" for
effecting such separation. The disputed order was
made by such an officer.
Section 2(d) defines "composite property", which, so far as is material, is in
these terms:
S. 2(d). "composite property" means any property which, or any property in which, an interest
has been declared to be evacuee property or has
vested in the Custodian under the Administration
of Evacuee Property Act, 1950 (XXXI of 1950)
andAbdul H aki1n
Khan &, Others
v.
The Regional
Settlement
Commissioner
Sarkar ].
Abdul Hakim
Khan &- Others
v.
The Regional
Settlement
Com1nissioner
Sarkar ].
534
SUPREME COURT REPORTS
[1962]
· (i) in which the interest of the evacuee consists
of an undivided share in the property held by him
as a co-sharer or partner of any other person, not
being an evacuee; or
(ii) in which the interest of the evacuee is subject
to mortgage in any form, in favour of a person, not
being an evacuee; or
(iii) in which the interest of a person, not being
an evacuee, is subject to mortgage in any form in
favour of an evacuee; or .........
Section 2(b) defines a "claim" as follows:
S. 2(b): "Claim" means the assertion by any perperson, not being an evacuee, of any right, title or
interest in any property-
(i) as a co-sharer or partner of an evacuee in the
property; or
(ii) as a mortgagee of the interest of an evacuee
in the property; or
(iii) as a mortgagor having mortgaged the property or any interest therein in favour of an
evacuee; .............. .
Section 6 authorises a Competent Officer to issue, "for
the purpose of determining or separating the evacuee
interest in a composite property'', notices requiring
persons claiming interest in any composite property,
to submit their claims to him. Section 7 deals with
the procedure, the form and the time of making the
claims. Section 8 lays down that on receipt of a
claim, the Competent Officer shall make an enquiry in
the manner provided and pass an order determining
the interest of the evacuee and the claimant in the
property. It also provides that the order shall contain, among others, the following particulars:
(1) in any case where the evacuee and the claimant are co-sharers or partners, their respective
shares in the property and the money value of such
shares;
(2) in any case where the claim is made by a
mortgagor, the amount due to the evacuee; and
(3) in any case where the claim is made by a
mortgagee, the amount due under the claim in
accordance with the provisions of section 9.
I
..
·•
1 S.C.R. SUPREME COURT REPORTS
535
Sub.section (2) of s. 8 is in these terms:
S. 8(2): Where the Custodian under the Admini.
stration of Evacuee Property Act 1950 (XXXI of
1950), has determined that the property in question or any interest therein is evacuee property, the
decision of the Custodian shall be binding on the
competent officer:
Provided that nothing contained in this sub-section shall debar the competent officer from determining the mortgage debt in. respect of such property or any interest therein or from separating the
interest of the evacuee from that of the claimant
under section 10.
Claims by mortgagees over evacuee properties are dealt
with by s. 9.
Section 10 gives the Competent Officer
power to separate the interests of the evacuee from
those of the claimant. It provides that the Competent Officer "in particular may:-(a) in the case of any
claim of a co-sharer ......
(i) direct the custodian to pay to the claimant the
amount of money assessed in respect of his share in
the composite property or deposit the same in a
civil Court having jurisdiction over such property
and deliver possession of the property to the Custodian and the claimant may withdraw the amount
:in deposit in the civil Court; or
(ii) transfer the property to the claimant on payment by him of the amount of money assessed in
respect of the share of the evacuee in the property;
or
(iii) sell the property and distribute the sale proceeds, thereof between the Custodian and the claimant in proportion to the share of the evacuee and
of the claimant in the property; or
(iv) partition the property according to shares of
the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the
claimant to the Custodian and the claimant respectively; ...... ".
Then comes s. 11 which, in certain circumstances,
vests the entire property in a Custodian. It was
under this section that the order now being considered
Abdul Hakim
I<han & Others
v.
The Regional
Settlement
Comniissioner
Sarkar J.
I96I
Abdul Hakim
Khan & Others
v.
The Regional
Settlement
Conimissioner
Sarkar j.
536
SUPREME COURT REPORTS
[1962]
was passed and it will be convenient to set it out
later.
It is said on behalf of the respondents that notices
under s. 6 of the Act of 1951, both general and special,
the latter addressed to the petitioners, asking for submission of claims in respect of the properties had been
issued but no claim was submitted by any one. The
learned counsel for the respondents produced a copy
of one of such notices which was in the form set out
below:
"Subject:-105.10 acres agricultural land and one
house in village J unapari Tahsil Berosia (4/7 share
of Abdul Aleem etc. evacuees)
To
Shri' Abdul Aziz and his two brothers village
Junapani (Tahasil Berosia).
FORM 'C'
WHEREAS information has been received that
you have an interest in the composite property described in the Schedule hereto annexed.
AND WHEREAS the evacuee interest in the said
property is to be separated from other interests.
I, NOW, hereby call upon you to submit your
claim to me in the prescribed form within sixty
days from the date of this notice."
Abdul Aleem mentioned in this notice is one of the
children of Abdul Hai who had evacuated to Pakistan.
The order that was passed by the Competent Officer
under s. 11 of the Act of 1951, on March 23, 1954,
recited that notices inviting claims were issued but no
claims had been submitted, and then concluded, "So
it is proved that no claim is filed deliberately though
the individual notice has been served by post under
a postal certificate. The whole Composite property
listed by Custodian shall vest free of encumbrances
and liabilities in the Custodian Bhopal U /s 11 of the
Evacuee Interest (Separation) Act 1951."
•,
It is the validity of this order that is questioned by
the petitioners. They admit that they filed no claims .
but they deny that any notice was served on, them
I S.C.R. SUPREME COURT REPORTS
537
and also otherwise challenge its validity.
We do not
r96r
think it necessary to go into the question of the
l'd't
f th
t'
-"
't
t
th t
'f Abdul Hakim
va 1 1 y o
? no 1~e ior 1 seems o us
a even I
Khan & Others
there was vahd not10e, the order challenged cannot be
v.
upheld.
The Regional
The question is, was the order justified by s. 11 of
Settlement
the Act of 1951? That section so far as relevi\;nt reads
Commissioner
thus:
Sarkar ].
S. 11(1).-Where in respect of any property,
notice under section 6 is issued but no claim is filed
or found .to exist or where any claim in respect of
such property is found to exist and the competent
officer separates the evacuee interest therein under
section 10, the whole property, or, as the case may
be, the evacuee interest in the property thus separated shall vest in the Custodian free from all
encumbrances and liabilities and any payment,
transfer or partition made or effected under section 10, in satisfaction of any claim in respect of
the property shall be a full and valid discharge of
all claims in respect of the property.
The respondents contend that the notice mentioned in the section having been issued and no claim
pursuant thereto having been filed, the whole property had to vest in the Custodian and therefore the
order of the Competent Officer was valid. This contention seems to us to proceed on a misreading of the
section. Notices under s. 6 are issued "for the purpose
of determining or separating the evacuee interest in a
composite property". The object of the notice can
therefore be one or other of two things, namely, for
determining the evacuee interest or for separating the
evacuee interest, in a composite property. These are
two entirely different things and are so treated in the
Act as will appear from the definition of composite
property and ss. 8, 9 and 10. The question of determining the evacuee interest arises when the interest
is either a mortgagor's or mortgagee's interest in property or an undivided share in property the extent of
whioh is not known. The determination is then made
as ,provided in els. (b), (c) and (d) of s. 8(1), ascertaining the quantum of the interest as mortgagor,
68
Ig6I
Abdul Haki1n
J(han & Othi:rs
v.
The Regional
Settlement
Commissioner
Sarkar J.
538
SUPREME COURT REPORTS
[1962)
mortgagee or co-sharer, as the case may be. A question
as to separation of interest can arise, of course, only
when that interest is known. This is done under s. 10
of the Act.
A case of separation may arise, for
example, when the evacuee is found to have a definite
undivided share in property.
Now, an evacuee may be found to have a definite
undivided share as a result of enquiry under s. 8 of
the Act of 1951 or under the order made by the Custodian under s. 7 of the Act of 1950. In the present
case the Custodian had held under s. 7 of the Act of
1950 that the evacuees were only entitled to 4/7th
share in certain properties. This will appear from the
notice under s. 6 of the Act of 1951 which we have
earlier set out. Section 8(2) says that the declaration
by the Custodian under the Act of 1950 that any
interest in property is evacuee property shall be binding on the Competent Officer, but this shall not prevent
him from separating under s. 10, the interest of the
evacuee from that of the claimant. In the present
case the notice was expressly for the purpose of separation.
We have to read s. 11 of the Act of 1951 in the
light of the preceding sections. We have also, in doing
so, to remember that the object of the Act of 1951 is
not to vest in the Custodian property which was not
evacuee property but to vest in him only the evacuee
interest in property after determining or separating,
as the case may be, that interest from the interests of
other persons in the manner laid down. It has further
to be remembered that it has been held by this Court
that no property vests in the Custodian unless proceedings under s. 7 of the Act of 1950 had been taken:
Ebrahim Aboobaker v. Tek Chand Dolwani (1).
Section
11 therefore cannot vest in the Custodian any property which was not evacuee property; it cannot
have the effect of making the entire property vest
in the Custodian as evacuee property where the
order under s. 7 of the Act of 1950 held that a
certain share in it only was evacuee property. It
would follow that when s. 11 makes the whole property vest in the Custodian in the absence of a claim
(1) [1953] S.C.R. 6gt.
I S.C.R.
SUPREME COURT REPORTS
539
having been filed or such claim having been filed but
found to be unsustainable, it deals with a case where
the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under s. 7
of the Act of 1950 has declared the whole property
to be evacuee property. If it were not to be so read,
then it would enable property admittedly uot belonging to an evacuee, to vest in the Custodian. Such
could not have been the intention of the Act and
would be against the decision of this Court earlier
referred to.
The section therefore does not warrant
the order of March 23, 1954, which purported to vest
the entire properties in the Custodian though the
Order under s. 7 of the Act of 1950 found only a four
seventh share therein to be evacuee property.
We think it right to point out that it has not been
contended on behalf of the respondent that the petition was not maintainable. We have therefore not
gone into that aspect of the case and are not to be
understood as having decided any question as to the
maintainability of the petition.
In the result we set aside the order of March 23,
1954. There will be no order as to costs. This order
will not however prevent proper steps being taken for
the separation of the evacuees' interest in the properties from the rest in accordance with the Act of 1951
or other provisions of law.
Petition allowed.
Abdul Haki>n
J( han &. Others
v.
The Regional
Settlement
Cotn;nissioner
Sarkar ].