# BHANWAR LAL AND ANR v. REGIONAL SETTLEMENT COMMISSIONER, JAIPUR, CUM-CUSTODIAN OF EVACCEE PROPERTY & OTHERS

- **Citation:** [1966] 1 S.C.R. 163
- **Court:** Supreme Court of India
- **Decided:** 1965-05-06
- **Bench:** K. Subba Rao, Raghubar Dayal, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhanwar-lal-and-anr-v-regional-settlement-commissioner-jaipur-cum-custodian-of-3481
- **Pages:** 5

## Headnote

Admini,tmtion of Evacuee Property Act, 1950 (31 of 1950)-Notice
under s. 7(1) to deceased Mortgagees-Whether sufficient-No Separa"'
tion proceedings-Rigfrts of Custodian.
The names of the predecessors of the appellants
were recorded as
mortgagees in the villages
records in respect of a property, owned by
persons who later migrated to Pakistan. The Custodian of Evacuee Property issued a notice under s. 7 ( 1) of the
Administration of Evacuee
Property Act, 1950 to these persons and the predecessors of the appel~
!ants stating that the prcdcc~ssors of the appellants \\:ere in illegal possession of the property and to shO\V cause why the property should not be
declared as evacuee property.
The notice was affixed at a conspicuous
place in the village.
It could not be served on the predecessors of the
appellants who had died long before the issue of the no1ice.
Since no
objections were filed, the Custodian declared the property as evacuee property. No action was also taken to separate the intere"St of the evacuees
from those of the mortgagees under the Evacuee
Interest (Separation)
Act.
The appellants filed a \\.Tit petition in the High Court for quashing the latter order declaring the property as evaeuee property and to
restrain the respondent to interfere \vith
their
possession.
The High
Court dismissed the petition holding that issue of the notice to the predecessors of the appellant. \Vas sutlic'.cnt compliance under s. 7 ( 1 ) of
the Act.
In appeal to this Court.
HELD : The Custodian can fonn his opinion
about
any
property
having become evacuee property on the basis of information available to
him, and issue notice to persons intere::;ted -also on the basis of such information.
He is not expected to hold a genetal inquiry of the persons
interested in the alleged 0vacuce property.
He had complied with the
requirements of s. 7(1) of the Act to give notice to the predecessors of
the appellants who resided at some other place and about whom he could
have no knowledge whether they were alive or not.
The
notice was,
however, ineffective and not good as the pr·~deccssors of the appellants
had died long befor·o. [165 D-H]
Abdul Hakim
Khan
v.
The R<!gional Settlernent Conunissioner,
G
[1962] l S.C.R. 531, followed .
H
The impugned order did not affect the rights of ihe appellants, if any
as mortgagees.
The non-issue of the notice to the appellants therefore
was of no consequence as the order subsequently passed without the issue
of the notice to them did not affect their interest.
By virtue of the latter
c>rder, the rights of the evacuees in the property suit vested in the Custodian and those right; consisted of the rights
of equity of redemption.
This mean9 that the Custodian held the property subject to the mortgagee
rights, if any. Of the appellants. rt66 A-B, E-F]
So long as p'roper action under the Evacuee Jntere..;;t (Separation) Act
was not taken to separate the interest of the evacuees and the appellants
164
SUPREME
COURT
REPORTS
(1960; I 3.C.R.
who claimed to Pe t'.H:
m·';!3;1.g~e~.
1hc eu~todi;ln could not take any
A
action against the appellants ~r their
tenants
v.·ho \\'ere said to be in
poss~ion of th.: property in ~Ht. [167 1\-BJ
CIVIL APPELLATE JURISnJCTJON:
Civil Appeal No. 244 of
1965.
Appeal by '.;pccial lcav~ from the judgment and order dated
April 7, 1964 of the Rajasthan High Court in D.B. Writ Petition
No. 192 of l 960.
B. R. L. Iyengar, S. K. Mehta and K. l.. Mellfa, for the appellants.
B
D.R. Prem and B. R. G. K. A char, for respondent No. 1.
c

## Text

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163
BHANWAR LAL AND ANR.
v.
REGIONAL SETTLEMENT
COMMISSIONER, JAIPUR,
CUM-CUSTODIAN OF EVACCEE PROPERTY & OTHERS
May 6, 1965
[K. SUBBA RAO, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.J
Admini,tmtion of Evacuee Property Act, 1950 (31 of 1950)-Notice
under s. 7(1) to deceased Mortgagees-Whether sufficient-No Separa"'
tion proceedings-Rigfrts of Custodian.
The names of the predecessors of the appellants
were recorded as
mortgagees in the villages
records in respect of a property, owned by
persons who later migrated to Pakistan. The Custodian of Evacuee Property issued a notice under s. 7 ( 1) of the
Administration of Evacuee
Property Act, 1950 to these persons and the predecessors of the appel~
!ants stating that the prcdcc~ssors of the appellants \\:ere in illegal possession of the property and to shO\V cause why the property should not be
declared as evacuee property.
The notice was affixed at a conspicuous
place in the village.
It could not be served on the predecessors of the
appellants who had died long before the issue of the no1ice.
Since no
objections were filed, the Custodian declared the property as evacuee property. No action was also taken to separate the intere"St of the evacuees
from those of the mortgagees under the Evacuee
Interest (Separation)
Act.
The appellants filed a \\.Tit petition in the High Court for quashing the latter order declaring the property as evaeuee property and to
restrain the respondent to interfere \vith
their
possession.
The High
Court dismissed the petition holding that issue of the notice to the predecessors of the appellant. \Vas sutlic'.cnt compliance under s. 7 ( 1 ) of
the Act.
In appeal to this Court.
HELD : The Custodian can fonn his opinion
about
any
property
having become evacuee property on the basis of information available to
him, and issue notice to persons intere::;ted -also on the basis of such information.
He is not expected to hold a genetal inquiry of the persons
interested in the alleged 0vacuce property.
He had complied with the
requirements of s. 7(1) of the Act to give notice to the predecessors of
the appellants who resided at some other place and about whom he could
have no knowledge whether they were alive or not.
The
notice was,
however, ineffective and not good as the pr·~deccssors of the appellants
had died long befor·o. [165 D-H]
Abdul Hakim
Khan
v.
The R<!gional Settlernent Conunissioner,
G
[1962] l S.C.R. 531, followed .
H
The impugned order did not affect the rights of ihe appellants, if any
as mortgagees.
The non-issue of the notice to the appellants therefore
was of no consequence as the order subsequently passed without the issue
of the notice to them did not affect their interest.
By virtue of the latter
c>rder, the rights of the evacuees in the property suit vested in the Custodian and those right; consisted of the rights
of equity of redemption.
This mean9 that the Custodian held the property subject to the mortgagee
rights, if any. Of the appellants. rt66 A-B, E-F]
So long as p'roper action under the Evacuee Jntere..;;t (Separation) Act
was not taken to separate the interest of the evacuees and the appellants
164
SUPREME
COURT
REPORTS
(1960; I 3.C.R.
who claimed to Pe t'.H:
m·';!3;1.g~e~.
1hc eu~todi;ln could not take any
A
action against the appellants ~r their
tenants
v.·ho \\'ere said to be in
poss~ion of th.: property in ~Ht. [167 1\-BJ
CIVIL APPELLATE JURISnJCTJON:
Civil Appeal No. 244 of
1965.
Appeal by '.;pccial lcav~ from the judgment and order dated
April 7, 1964 of the Rajasthan High Court in D.B. Writ Petition
No. 192 of l 960.
B. R. L. Iyengar, S. K. Mehta and K. l.. Mellfa, for the appellants.
B
D.R. Prem and B. R. G. K. A char, for respondent No. 1.
c
The Judgment of the Court was delivered by
Raghubar IJ.i)ul, J,
Ibrahim and Khurshed, brother.;, sons of
Paneh Ali, Isak and Ba~gu, sons of Jawaye, owned Khasra No. 26,
measuring 20 bighas, at village Alipore, Tehsil Hanumangarh.
They migrated to Pakistan.
The Assistant Custodian of Evacuee
Property, Hanumangarb, issued notice under s. 7 ( 1) of the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950)
hereinafter called the Act, to these persons and also to Hazari,
son of Chuni and Magha, son of Kana, stating therein that Ibrahim
and others had gone to Pakistan and that Hazari ar.d Magha were
in illegal possession of the land. They were all required to show
cause why the land be not declared
evacuee property.
The
notice was affixet.! at a conspicuous place in village Alipore. The
notice could not be s.erved on Hazari and Magha as they had
<lied long befo1·e the issue of notice in 1955.
No objections were filed and on April 7. 1955 the Assistant
Custodian declared Ibrahim, Khurshed, Isak and Baggu evacu~
and the aforesaid property evacuee property.
Rhanwar Lal. son
of Hazari and Rati Ram, grandson of Magha, filed a petition
under Art. 226 of the Constitution in the Rajasthan High Court
for the quashing of the order dated April 7. 1955 and for restraining the Regional
Settlement Commissioner.
Jaipur.
the
Managing Ofiic~r of acquired Evacuee Property, Ganganagar, the
Tehsil<lar, Hanumangarh, from interfering with their possC'iSion
oYer the property decbre<l to be evacuee p•operty. They alleged
that one Paneh Mohamad, father of Ibrahim and Khurshed, had
mortgaged this property to Hazari and Magha in 1931, that the
mortgagees had been in possession of the property, that they did
nat get any notice of the proceedings taken by the Assistant Clll!-
todian and were infonned of his order in 1959 by their tenants
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BHANWAR LAL v. COMMISSIONER (Dayal, J.)
165
in the land in suit when the allottees of the land were taking
steps to recover possession.
The writ petition was dismissed by
the High Court which held that the issue of notice to Hazari and
Magha was sufficient compliance with the requirements of sub-s .
( 1) of s. 7 of the Act as the Custodian had not to make any
preliminary enquiry about the persons who might be interested
in the property of the alleged evacuee. It is against this order
that Bhanwar Lal and Rati Ram have filed this appeal by special
leave.
Section 7 ( 1) of the Act reads :
"Where the Custodian is of opinion that any property
is evacuee property within the meaning of this Act, he
may, after causing notice thereof 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 of the case permit, pass an order declaring any such property to be evacuee property."
The Custodian can form his opinion about any property having
become evacuee property on the basis of information available
to him. It has been so· held in Abdul Hakim Khan v. The
Regional Settlement Commissioner('). He can issue notice to
the persons interested also on the basis of information available
to him.
He is not expected to hold a general inquiry of the
persons interested in the alleged evacuee property.
In the present case it appears that the village records about the land in suit
which is agricultural. recorded the names of Hazari and Magha
as mortgagees and that the Assistant Custodian could consider
them to be the persons interested.
He could have had no information whether these mortgagees who resided at some other place
were alive or not.
He complied with the requirements of
sub-s. ( 1) of s. 7 to give a notice to Harari and Magha.
The
notice however was ineffective and not good as Hazari and Magha
had died long before.
The question then arises whether the furG ther p~oceedings on the basis of this notice could a1fect the
interests of the mortgagees .
H
The interest of Ibrahim and others, the evacuees of the propetiy in suit which was under mortgage, consisted of the equity
of redemption in the property. It is this interest of theirs which
could be declared evacuee property and the order of the Assistant
Custodian dated April 7, 1955, declaring the aforesaid property
to be evacuee property, really amounts to an order declaring the
(!) [1962] I S.C.R. 1531.
•
SUPREME
COURT
REPORTS
(1966] 1 S,C.R
166
right of Ibrahim and others in the equity of redemption evacuee
property.
The order cannot affect the mortgagee rights as Ibrahim and others had no interest in the mortgagee rights.
It follows that the impugned order does not affect the rights
of the appellants if any as mortgagees.
The non-issue of the
notice to the appellants therefore is of no consequence as the
order subsequently passed without the issue of the notice to them
does not affect their interest.
Reference in this connection may again be made to Abdul
Hakim Khan's Case ( 1 ). In that case a number of persons had
shares in certain p~operty. Some of them migrated to Pakistan.
The notice under s. 7 ( 1 )_ was issued to one of those persons who
had not migrated to Pakistan. The Custodian declared the property
of those who had migrated to be evacuee property and specified
their share in the property. The other co-shares except the one
to whom the notice was issued, challenged the validity of the order
passed under s. 11 of the Evacuee Interest (Separation) Act, 1951
(Act LXIV of 1951), vesting the entire property in the Custodian.
This Court held that the objectors could not challenge the validity
of the order under s. 7 of the Act .as it did not affect their rights
in the property.
Similarly it can be said that the appellants in
this case cannot challenge the validity of the proceedings on the
notice issued by the Assistant Custodian and the order of the
Assistant Custodian declaring the property in suit to be evacuee
property when that order does not affect the mortgagee rights of
the appellants.
By virtue of the order dated April 7, 1955, this rights of the
evacuees in the property in suit vest in the Custodian and those
rights, as stated earlier, consist of the rights of equity of redemption.
This means that the Custodian holds the property subject
to ,the mortgagee rights, if any, of the appellants.
It has been conceded by Mr. Prem appearing for the respondents, that no action has been. taken under the Evacuee Interest
(Separation) Act, 1951.
Section 10 of this Act empowers the
competent officer to take all necessary measures for the purpose
of separating the interest of the evacuees _from
those of the
claimants in any composite property which, inter alia, means any
property which or in which an interest has been declared to be
evacuee property or has vested in the Custddian under the Act
and in which the interest of the evacuee is subject to mortgage
in any form in favour of a person not being\ an evacuee. It is
only after such separation of the interests of the evacuee and
(l) [1962] I S.C.R. 531.
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BHANWAR LAL V. COMMISSIONER (Dayal, J.)
167
the claimants in the composite property that the evacuee inte·
rest gets vested in the Custodian free from all encumbrances.
It follows that so long as proper action under the Evacuee interest Separation Act is not taken to separate the interest of the
evacuees and the appellants who claim to be mortgagees, the
Custodian cannot take any action against the appellants or their
tenants who are said to be in possession of the property in suit.
The result then is that we dismiss the appeal and confirm
the order of the Court below with respect to the validity of the
order of the Assistant Custodian dated April 7, 1955. We allow
the appeal with respect to the prayer for restraining the Regional
c Settlement Commissioner and others, respondents 1 to 3, from
interfering with the possession of the appellants or their tenants.
We order the parties to bear their own costs throughout.
Appeal partly allowed .