# EBRAHIM ABOOBAKER AND ANOTHE"U v. TEK CHAND DOL WANI. EBRAHIM ABOOJ3AKER AND ANOTHER

- **Citation:** [1953] 1 S.C.R. 691
- **Court:** Supreme Court of India
- **Decided:** 1950-02-08
- **Case number:** Civil Appeal No. fi5 of 1953
- **Bench:** Patan.Jali 8Astri C.J, Mukherjea, Das, Ghulam Haban, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ebrahim-aboobaker-and-anothe-u-v-tek-chand-dol-wani-ebrahim-abooj3aker-and-187
- **Pages:** 17

## Headnote

Admi?bistration of Evacuee Property Act (XXXI of 1950),
ss. 2(d) and(/), 7-Proceedings fo1· declaring a person an evacuee
and his properties evacuee properties -Death of person pending pro.
ceedings-Abatement of proceedings-Continuation of proceedings
against wccessors~ Legality.
Where a Mohammedan against whom proceedings are commenced under the Administration of Evacuee Property Act, 1950,
for declaring him an evacuee and his properties evacuee properties
dies during the pendency of the proceedings he cannot be declared
an evacuee after his death, and his properties which on bis death
vest in bis heirs under the Mohammedan law cannot be declared
evacuee properties.
CIYJL APPELLATE JL1nrsDICTION:
Civil Appeal
No. fi5 of 1953.
Appeal by special leave granted by the Supreme
Court on 13th March, 1953, from the Judgment and
Order dated the 30th July, 1951, of the Custodian
General of Eyacuee Property in No. 31-A/Judi./50.
Petition No. 247 of 195Q, a petition under Article
32 of the Constitution for enforcement of fundamental rights, and Petition for Special Leave to
Appeal No. 106 of 1952 were also heard ll;long with
Civil Appeal No. 65 of !9(j;j, ·
1963
April 10.
1958
Ebrahim
Aboobake1·
and Another
v.
Tek Chand
Dolwani.
Ghulam
Ha!an J.
692
SUPREME COUR'r REPORTS
[1953]
K. T. Desai for,the appellants and petitioners.
0. K. Daphtary, Solicitor-General for India (PMus
A. Mehta with him) for the respondent in Petition
No, 247,
.
1953,
April 10,
The Judgment of the Court was
delivered by
GHULAM HASAN J,-ln order to understand and
appreciate the point arising for consideration in this
case, it will be necessary to set out a few preliminary
facts:--
One Aboobaker Abdul Rehman, a resident of Bombay, received on December 16, 1949, from the Additional Custodian, Bombay, a notice under section 7 of
Ordinance No, XXVII of 1949 calling npon him to
show canse why his interest in certain specific property shonld not be declared to be evacuee property.
A further notice issned 0'1January11, 1950, required
him to show cause why he should not be declared an
evacuee and all his properties declared to be evacuee
properties,
On February 8, 1950, foe Additional
Custodian decided that Aboobaker was not an evasuee,
but at the same time issued a fresh notice to him
under section 19, requiring him to show cause why he
should not be declared an "intending evacuee" and
on the following day, February 9, he declared Aboobaker as an "intending evacuee" upon the same evidence.
Aboobaker does '10t appear to have contested
this order, but one Tek Chand Dolwani, first informant, carried the matter in appeal to the Custodian
General, praying that Aboobaker be declared an
evacuee and that the Imperial Cinema, one of his
properties, be allotted to him,
The Ordinanc~ expired on October 18, 1949, and
was replaced by Act XXXI of 1950 (The Administration of Evacuee Property Act) which came into
operation on April 17, 1950, It is not denied that
although the Ordinance was repealed by section 58,
the proceedings taken in the exercise of any powers
conferred by the Ordinance shall be deemed to have
S.O.R.
SUPREME COURT REPORTS
693
been taken in the exercise of the powers conferred by
the Act as if the Act were in force on the day the
proceedings were taken.
The appeal was heard ou May 13, 1950, when the
preliminary objections iu regard to the maintainability of the appeal were argued and the appeal was
adjourned to May 15 for orders.
Ou May 14, Aboobaker died leaving him surviving three sons and a
daughter as his heirs under the Mohammedan law,
tbe sons taking 2/7th share each and the daughter
I/7th.
On May 15, the Custodian General pronounced the order which was, however, dated May 13.
By
this order he dismissed the preliminary objections and
directed that further enquiries should be made and
that Aboobaker be examined further on August 19,
1950. The hearing of the appeal was adjourned from
time to time and was fixed for final disposal on March
7, 1951. Notice of this hea

## Text

s.c.B.
SUPREME COURT REPORTS
691
EBRAHIM ABOOBAKER AND ANOTHE"U
v.
TEK CHAND DOL WANI.
EBRAHIM ABOOJ3AKER AND ANOTHER
v.
CUSTODIAN-GENERAL OF EVACUEE
PROPERTY.
EBRAHIM ABOOBAKER AND ANOTHER
v.
U. M. MIRCHANDANI.
[PATAN.JALI 8ASTRI C.J., MUKHERJEA, DAS, GHULAM
HABAN and BHAGWATI JJ.]
Admi?bistration of Evacuee Property Act (XXXI of 1950),
ss. 2(d) and(/), 7-Proceedings fo1· declaring a person an evacuee
and his properties evacuee properties -Death of person pending pro.
ceedings-Abatement of proceedings-Continuation of proceedings
against wccessors~ Legality.
Where a Mohammedan against whom proceedings are commenced under the Administration of Evacuee Property Act, 1950,
for declaring him an evacuee and his properties evacuee properties
dies during the pendency of the proceedings he cannot be declared
an evacuee after his death, and his properties which on bis death
vest in bis heirs under the Mohammedan law cannot be declared
evacuee properties.
CIYJL APPELLATE JL1nrsDICTION:
Civil Appeal
No. fi5 of 1953.
Appeal by special leave granted by the Supreme
Court on 13th March, 1953, from the Judgment and
Order dated the 30th July, 1951, of the Custodian
General of Eyacuee Property in No. 31-A/Judi./50.
Petition No. 247 of 195Q, a petition under Article
32 of the Constitution for enforcement of fundamental rights, and Petition for Special Leave to
Appeal No. 106 of 1952 were also heard ll;long with
Civil Appeal No. 65 of !9(j;j, ·
1963
April 10.
1958
Ebrahim
Aboobake1·
and Another
v.
Tek Chand
Dolwani.
Ghulam
Ha!an J.
692
SUPREME COUR'r REPORTS
[1953]
K. T. Desai for,the appellants and petitioners.
0. K. Daphtary, Solicitor-General for India (PMus
A. Mehta with him) for the respondent in Petition
No, 247,
.
1953,
April 10,
The Judgment of the Court was
delivered by
GHULAM HASAN J,-ln order to understand and
appreciate the point arising for consideration in this
case, it will be necessary to set out a few preliminary
facts:--
One Aboobaker Abdul Rehman, a resident of Bombay, received on December 16, 1949, from the Additional Custodian, Bombay, a notice under section 7 of
Ordinance No, XXVII of 1949 calling npon him to
show canse why his interest in certain specific property shonld not be declared to be evacuee property.
A further notice issned 0'1January11, 1950, required
him to show cause why he should not be declared an
evacuee and all his properties declared to be evacuee
properties,
On February 8, 1950, foe Additional
Custodian decided that Aboobaker was not an evasuee,
but at the same time issued a fresh notice to him
under section 19, requiring him to show cause why he
should not be declared an "intending evacuee" and
on the following day, February 9, he declared Aboobaker as an "intending evacuee" upon the same evidence.
Aboobaker does '10t appear to have contested
this order, but one Tek Chand Dolwani, first informant, carried the matter in appeal to the Custodian
General, praying that Aboobaker be declared an
evacuee and that the Imperial Cinema, one of his
properties, be allotted to him,
The Ordinanc~ expired on October 18, 1949, and
was replaced by Act XXXI of 1950 (The Administration of Evacuee Property Act) which came into
operation on April 17, 1950, It is not denied that
although the Ordinance was repealed by section 58,
the proceedings taken in the exercise of any powers
conferred by the Ordinance shall be deemed to have
S.O.R.
SUPREME COURT REPORTS
693
been taken in the exercise of the powers conferred by
the Act as if the Act were in force on the day the
proceedings were taken.
The appeal was heard ou May 13, 1950, when the
preliminary objections iu regard to the maintainability of the appeal were argued and the appeal was
adjourned to May 15 for orders.
Ou May 14, Aboobaker died leaving him surviving three sons and a
daughter as his heirs under the Mohammedan law,
tbe sons taking 2/7th share each and the daughter
I/7th.
On May 15, the Custodian General pronounced the order which was, however, dated May 13.
By
this order he dismissed the preliminary objections and
directed that further enquiries should be made and
that Aboobaker be examined further on August 19,
1950. The hearing of the appeal was adjourned from
time to time and was fixed for final disposal on March
7, 1951. Notice of this hearing was issued to Ebrahim
Aboobaker (son) and Hawabai Aboobaker (daughter)
who owned between themselves 3/7th share to appear
as the heirs and legal representatives of the deceased.
The petitioners, who are residents of India-their two
brothers are said to have migrated to Pakistan-filed
on February 26, 1951, Miscellaneous Petition No. 15
of 1951, in the Punjab High Court for a writ of prohibition or for directions or order directing the
Custodian General to forbear from proceeding with
the hearing of the appeal or making any order in the
said appeal or from declaring the properties left by
the deceased as evacuee properties. The petitioners
contended inter alia that after the death of Aboobaker
the Custodian General had no jurisdiction to proceed
with the appeal.
The petition was dismissed on May
24, 1951, the High Court holding that the Custodian
General had jurisdiction. Leave to appeal was granted but the High Court did not stay the hearing of the
appeal by the Custodian General which was fixed for
July 3, 1951, and directed that the Custodian General
should not pass final orders until July 23, 1951.
On
July 3, the Custodian General heard the appeal and
90
1953
Ebrahi"1i
Aboob11ker
and Another
v.
Tsk Chanel
Dolwani.
Ghulam
Haaan I.
1958
Ebrahirn
Aboobaker
and Another
v.
Tek Chand
Dolwani.
GlM,larn
Jlasa1i J.
694
SUPREME COURT REPOR'fS
[1953]
on July 30 which wa> the date fixed for final orders
he declared Aboobaker to be an evacuee and his properties to be evacuee properties.
On August 6, 1951, the petitioners filed a petition
(Miscellaneous Petition No. 191 of 1951) under article 2:26 of the Constitution in the Bombay High
Comt against the Custodian General and the Custodian, Bombay, for a writ of certiorari for quashing and
setting aside the said order and for an order directing
the Custodian General and the local Custodian from
acting upon the order or from taking possession of
the property which was situate in Bombay.
The
petition was dismissed by Shah J. on October 4, 1951,
on the ground that the 3ombay High Court had no
jurisdiction against the Custodian General and that
the petition against the local Custodian was pre·
mature. Appeal No. 88 of 1951 was filed on October
5, 1951, against the said order to the Bombay High
Court.
An interim order was passed whereby the
petitioners undertook to keep accounts and not to
dispose of the properties while the Custodian General
gave an undertaking not to take possession pending
the hearing of tbe appeal.
The appeal came up for
hearing on November '20, 1951, before the Chief
Justice and Gajendragadkar J. but it was allowed to
stand over with a view to await the decision of this
Court in appeal against the order of the Punjab High
Court as they did not wish to pass any order which
might conflict with the decision of this court.
That
appeal was dismissed by this Court on May 26, HJ52.
See Ebrahim Aboobaker and Another
Y. Ciistodian
General of Evacuee Property.').
This Court decided
only the preliminary point that Tek Chand Dolwani
was entitled to prefer an appeal but left the question
about the jurisdiction of. the Custodian General to
declare the properties of Aboobaker as evacuee properties after his death open as that question was not
raised before it, the order of the 30th July, 1951,
having been passed after the filing of the appeal in
the Supreme Court and also because that questioI1
(I) (I95•1 S.C.R. 6g6,
•
S.C.R.
SUPREME COURT REPORTS
695
was pending determination in the appeal before the
Bombay High Court.
Appeal No. 88 of 1951 was dismissed on 1st/2nd
July, 1952, by the Chief Justice and Gajendragadkar J. on the preliminary ground that they had no
jurisdiction to quash the order of the Custodian
General passed on 30th July, 1951.
They declined to
pass any order against the local Custodian observing
that they could not do indirnctly what could not be
done directly. A petition for leave to appeal was also
rejected by the High Court on the 14th July, 1952.
Petition No. 105 of 1952 is for special leave to
appeal against tpe order of the Custodian General
dated July 30, 195l. Petition No. 106 of 1952 is
against the order of the Appellate Bench of the
Bombay High Court dated 1st/2nd July, 1952.
Petition No. 24 7 of 1952 is an independent petition
under article 3:.l of the Constitution, challenging the
order of the Custodian General dated July 30, 1951,
as being in violation of the fundamental rights of the
petitioners and being without jurisdiction.
'rek Chand Dolwani has filed a caveat against the
Petition No. 105 of 1952, while the petition under
article 32 has been heard upon notice to the Custodian General. In this petition it is submitted that on
a true construction of the relevant provisions of the
Ordinance and the Administration of Evacuee Property Act, the Custodian General had no jurisdiction
to hear the appeal after the death of Aboobaker, or to
make any order declaring the properties left by him
to be evacuee properties as the appeal abated on his
death and the propertie:> 1·ested in specific shares in
his heirs under the Mohammedan law. It was urged
that as the said properties did not fall within the
definition of evacuee property on the 30th July, 1951,
or at any time after the death of Aboobaker, the
Custodian General had no jurisdiction to declare the
properties to be evacuee properties.
As a matter of
fact, the deceased had no right, title or interest in the
said properties after his death; nor were the said properties acquired by his heirs by any mode of transfer
1968
Ebrahim
Aboobn.ker
and Another
v.
Tek Oh•11d
Dolwani.
Ghula1n
Hasan J.
1958
Ebr(lhini
Aboobaker
and Another
v.
Tek Chand
Dolwani.
Ghularn
Hasan J.
696
SUPREME COURT REPORTS
[1953 J
from the deceased. The order of the 30th July, 1951,
is challenged as heiug void and inoperative as it
yiolates the fundamental rights of the petitioners
under articles 19(1) (f) and 31(1) of the Constitution.
'rhe petitioners pray for the issue of a writ of certiorari
.against the Cuotodian General calling for the records
of the case relating to the above order and after looking into the same and going into the question of the
legality thereof quash and set aside the same.
They
also ask for a writ of prohibition or mandamus or
directions or an order or a writ directing the Custodian
General, his servants and agents to forbear from acting
upon or enforcing the order dated the 30th July, 1951,
or from taking any ;;tops or proceedings in enforcement of the same.
We heard the petitioners and the
Solicitor-General on the petition under article 3:2 and
reserved orders till we had heard Dolwani who was
the caveator in the application for special leave to
appeal.
Dolwani was served with a notice personally
and through his ageut but neither put in appearance.
We granted the appliclltion for leave to appeal against
the order of the Custodian General and directed the
appeal to be posted for hearing along with the application under article 3:2. Dolwani again did not appear
and we proceed, therefore, to dispose of the appeal
and the petition by a common judgment.
The crucial question which arises for consideration
before us is ,whether a person can be declared an
evacuee after his death and whether the properties
which upon his death vest· in his heirs under the
Mohammedan law can be declared evacuee properties.
Before we proceed to determine that question
we must notice the objection raised by the SolicitorGeneral about the maintainability of the petition
under article 3:2 of the Constitution. He contends
that t,here is no question of any infraction of fundamental
1righ t in the present case as the petitioners
have not beeh deprived of any property without the
authority of law.
The Gustodian General, it is said,
undoubtedly purported to act under an express
statutory enactment.
He might have misapplied or
•
•
•
S.C.R.
SUPREME 1 COURT REPORTS
697
misappreciated the law or committed an error in the
assumption or exercise of jurisdiction, but that would
not bring the case within tbe purview of article 31 (1)
read with article UJ( I) (f) of the Constitution.
The
point is debatable and we do not desire to express
any opinion upon this point as we propose to
examine the validity of the order of the Custodian
General dated July 30, 1951, in the appeal (Civil
Appeal No. 65 of 1953) which arose out of Petition
No. 105 of 1952 for special leave and not on the
petition under article 32.
Section 2 (d) and (f) define "evacuee" and "evacuee
property" respectively as follows:-
(d) "Evacuee" means any person,-
(i) who, on account of the setting up of the
Dominions of India and Pakistan or on account of
civil distnrbances or the fear of such distnrbances,
leaves or has, on or after the 1st day of March, 1947,
left, any place in a State for any place outside the
territories now forming part of India, or
(ii) who is resident in any place now forming
part of Pakistan and who for that reason is nnable to
occupy, supervise or manage in person his property
in any part of the territories to which this Act extends, or whose 'property in any part of the said
territories has ceased to be occupied, supervised or
managed by any person or is being occupied, supervised or managed by an unauthorised person, or
(iii) who has, after the 14th day of August, 1947,
obtained, otherwise than by way of purchase or exchange. any right to, interest in or benefit from any
property which is treated as evacuee or abandoned
property under any law for the time being in force in
Pakistan;
( f} " Evacuee property " means any property in
which an evacuee has any right or interest (whether
personally or as a trustee or as a beneficiary or in any
other capacity), and includes any property-
(1) which has been obtained by any person from
an evacuee after the 14th day of August, 1947, by
1963
Ebrahini
Aboobnker
and dn.other
v.
T•k Chand
Dolwani.
Ghulani
Hasan J.
1953
Ebr11.hint
AboobJker
and Another
v.
Tek Chand
Dolwani.
Gkulani
Hasan J.
698
SUPREME COURT, REPORTS
[1953]
any mode of transfer, unless such transfer has been
confirmed by the Custodian.
The u>e of the present tense "leaves" or "has left"
in the definition of evacuee and "bas" in the definition of evacuee property is relied upon in support of
the contention that tbe object of the legislature in
enacting these provisions was to confine their operation to a liviμg psrson only.
This line of argument
may not per se be of any compelling force but it
receives support from the rest of the provisions of
the Act to which reference will be made hereafter. It
may, however, be pointed out here that clause (£) (l)
will not apply to the case of the petitioners for they do
not claim the property from the evacuee after the
14th day of August, 1947, by any mode of transfer but
by right of succession under the Mohammedan law.
Succession to property implies devolution by operation of law and cannot appropriately be described as
a mode of tra.nsfer, a~ contended for by the tiolicitorGeneral, which ob,-ionsly contemplates a transfer
inter vivos.
Section 7 r.efer' to the notification of tbe evacuee
property. It lays down that "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."
Rule 6, which is framed in exercise of the powers
conferred by section 56 of the Act, lays down the
manner of inquiry under section 7 and is as follows:-
" (1) Where the Custodian is satisfied from information in bis possession or otherwise that any property
or an interest therein is prima facie evacuee property,
he shall cause a notice to be served, in .Form No. 1,
on the person claiming tit'.e to such property or interest and on any other person or persons whom he
9onsiders to be interested in the property.
•
S.C.R.
SUPREME COURT REPORTS
699
{2) The notice shall, as far as practicable, mention
the grounds on which the
prop~rty is sought to be
declared evacuee property and shall specify the provision of the Act under which the person claiming
·any title to, or interest in, such property is alleged
to be an evacuee.
(3) The notice shall be served personally, but if
that is not practicable the service may be effected in
any manner provided in rule 28.
(Tbis rule refers to
a mode of substituted service).
( 4) Where a notice has been duly served, and the
party called upon to show cause why the property
should not be declared an evacuee property, fails to
appear on the date fixed for hearing, the cu~todian
may proceed to hear the matter ex parte and pass such
order on the material before him as he deems fit.
(5) Where such party appears and contests the notice
he shall forthwith file a written statement ver1 lied in
the same manner as a pleading under the Code of
Civil Procedure, 1908, stating the reasons why he
should not be deemed to be au evacuee and why the
property or bis interest-therein should not be declared
as evacuee property. Any person or perwns claiming
to he interested in the enquiry or in tbe property
being declared as evacuee property, may file a reply
to such written statement. Tbe Custodian shall then,
either on the same day or on any subsequent day to
which the hearing may be adjourned, proceed to hear
the evidence, if any, which the party appearing to
show cause way produce and also evidence which tbe
party claiming to be interested as mentioned above
may adduce.
(6) After the whole evidence has been duly recorded in a summary manner, the Custodian shall proceed
to pronounce his order.
The order shall state the
points for determination, and the findings thereon
with brief reasons."
Form No. 1 in Appendix A to the ndes (s a,:;
follows:-
1953
Ebrahini
Aboobiks1·
and Another
v.
Tek Chand
Dolwaiii.
Gh1,l1un
Hasan J.
195.1
Ebrahitn
Aboob iker
and Another
v.
Tek Chand
Dolwani.
Ghulatn
Hasan J.
700
SUPREME COURT REPORTS
(1953]
"WHEREAS there is credible information in
possession of the Cμstodian that you are an evacuee
under clause (iii) of sectiori 2(d) of the Administration
of 1£vacuee Property Act on account of the grounds
mentioned below:-
AND WHEHEAS it is desirable to hear you in
person;
Now, therefore, you are hereby called upon to show
cause (with all material evidence on which you wish
to rely) why orders should not be passed declaring
yon an evacuee aud all your property as evacuee
property under the provisions of the said Act.
Deputy
-------Custodian."
Assistant
The next important section is secti,on 8 the relevant
portion of which is as follows:-
" (l) Any property declared to be evacuee property
under section 7 shall be deemed to have veoted in the
Custodian for the State,-
(a) in the case of the property of an evacuee as
defined in sub-clause (i) ot clause (d) of section 2,
from the date on which he leaves or left any pl.ace in
a State for any place outside the territories now
forming part of India;"
If we substitute in section 8 the defiriition of
evacuee property given in section 2, the meaning of
section 8 will become clearer. Any property declared
to be:
(i) property in which an evacuee has any right
or interest,
(ii) property wbich has been obtained by any
person from
an
evacuee
after
the 14th of
August, 1947, by auy mode of tran8fer unless that
transfer has been confirmed by the Custodian under
section 7, shall be deemed to have vested in the
Custodian for the State:
(a) in the ca8e of the property of an evacuee as.
defined in sub-clause (i) of clause (d) of section 2,
•
S.C.R.
SUPREME COUR'l' REPOR'l'S
701
from the date on which he leaves or left any place in
a State for any place outside the territories uow forming part of India."
The language of the rule read with the Form given
above, the notice issued to the person claiming
interest in the property which, according to the
information in the possession of the Custodian, is
prima facie evacuee property, the manner of its
service and the mode of inquiry, lead to the unmistakable conclusion that the object of section 7 was to
take proceedings against a living person and to tbat
extent the use of the present tense in the definition
of "evacuee" and "evacuee property" lends corroboration to the contention raised that the proceedings are
intended to be applicable to living persons only. 'l'he
property which is declared to vest under (i) must be
one in which an evacuee has any right or interest but
the deceased has no right or interest after bis death
as his property vests in his heirs. Nor does (ii) apply
as petitioners have not obtained the property from an
evacuee by any mode of transfer.
It is obvious that property must be declared to be
eva.cuee property under section 7 before it can vest
under. section 8.
There is no doubt thaR when the
property does so vest the vesting takes effect retrospectively, but where the man dies before any such
declaration is made, the doctrine of relation-back
cannot be invoked so as to affect the vesting of such
property in the legal heirs by operation of law.
To
take a simple illustration, if a person leaves India
after the 1st of March, 1947, tb,e date given in
section 2(d), and dies in Pakistan before any notice is
issued to him under section 7 and before any inquiry
is held in pursuance thereof, it is obvious that the
heirs, who have succeeded to his property, cannot be
deprived of it by conducting an inquiry into the status
of the deceased and investigating bis right or interest
in property which bas already devolved on legal
heirs. Section 8 in such a case will not come into play
and there can be no vesting of the property retrospectively before such property is declared as e1'acuee
91
1968
Ebrahini
Aboobaker
and Another
v,
• Tek Chand
D.olwan.i.
Ghulam
Hasan J.
J9!J3
Ebrahini
Abooba.ker
and A1iother
v.
T6lc Cha.nd.
Dolwani.
O-h1dain
flasan J.
702
SUPREME COURT REPORTS
[1953)
property within the meaning of section 2(£) of
the Act.
Reading sections 7 and 8 together it appears that
the Custodian gets dominion over the property only
after the declaration is made. The declaration follows
upon the inquiry made under section 7, but until the
proceeding is taken nuder section 7, there can be no
vesting of the property and consequently no right in
the Custodian to take possession of it.
Now if the
alleged evacuee dies before the declaration, has the
Custodian any right to take possession of the property?
If he cannot take possession of the property of a
living person before the declaration, by the same
token he cannot take possession after the death of the
alleged evacuee when the property had passed into
the hands of the heir>.
The enquiry under section 7
is a condition precedent to the making of a declaration under section 8 and the rig ht of the Custodian
to exercise dominion over the property does not arise
until the declaration is made. · Tbere is no reason
therefore why the heirs should be deprived of their
property before-the Custodian obtains dominion.
'rhe matter may be looked at from another point of
view. Section 141 of the Civil Procedure Code wbich
makes the ·procedure of tbe Court in regard to suits
applicable in all proceedings in any Court of civil
jurisdiction does not apply, as the Custodian is not
a Court, thougb the proceedings held by him are of a
quasi-judicial nature.
8ection 45 of the Act applies
the provisions of the Code only in respect of enforcing
· ~
the attendance of any person and examining him on
011th and compelftng the discovery and production of
documents.
The provisions of the Code relating to substitution
are, therefore, inapplicable and there is no other provision in the Act for the heirs to be substituted in
place of the deceased so as to continue proceedings
against them. If the proceedings cannot be continued
against the heirs upon tbe death of the alleged
evacuee, it is logical to hold that tb ey cannot be
8.C.R. SUPREME COURT REPORTS
703
initiated against them.
We hold, therefore, that the
proceedings must.Japse upon the death of such person.
There is no provision in the Act that after a man
is dead, his property can be declared evacuee property.
If such a provision had been made, then the vesting
contemplated in section 8 of the Act would have by
its statutory force displ:j;ced tbe vesting of the property under the Mohammedan law in the heirs after
death. It is a well recognised proposition of law that
the est1:1te of a deceased Mohammedan devolves on
his heirs in specific shares at the moment of his
death, and tbe devQlution is neither suspended by
reason -of debts due from the deceased, nor is the
distribution of the shares inherited postponed till the
payment of !be debts. It is also well understood that
property vests in the heir"s under the Mohammedan
law, unlike the.Indian Succession Act, without the
intervention of an administrator.
Section 40 of the Act imposes a restriction upon
the right of an evacuee to transfer property after the
14th August, 194 7.
This section prohibits transfers
inter vivos but cannot affect devolution by operation
of law such as, on death.
According to this section
where the property of a person is notified or declared
to be an evacuee property, he cannot transfer that
property after the 14th of August, 1947, so as to confer any right on the transferee unless it is confirmed
by the Custodian~ This shows that a transfer between the 1st of March and the 14th of August, 1947,
is immune from the disability of being treated as
evacuee property notwithstanding the fact that the
transferor migrated after the lst of March. If he
made a bona fide transfer of bis e\jtire property before
the 14th of August, 1947, then the property does not
acquire the character of evacuee property and such a
transfer does not require confirmation by the Custodian, altho~gh all transfers after that date are held
suspect. If tbe transfer between the two crucial dates·
is held valid, then on a parity of reasoning tho death
of the transferor before the declaration after the 14th
of August should lead to the same re~ult.
1953
Ebrahitii
Aboob•ker
and Another
v.
Tek Ohand
Dolwa1~i.
Ghulani
·Hasan J.
'
1968
Ebrnhim
Aboob'lker
and Another
v.
Tek Chand
Dolwani.
Ghula.m
Hasan J •.
70.4
SUPREME COURT REPOR'rS
(1953]
It was contended before us that the Act aims at
fixing the nature of the property from a pa_rticula.r
date and that the proceedings taken are agamst the
property and not against the person. This argument
is fallacious.
There can be no property, evacuee or
otberwisP, unless there is a person wbo owns that property. It is the property of the owner which is declared to be evacuee property by reason of the fact that
be is subject to disability on certain grounds.
The
definition of evacuee property in the Act begins by
saying "property in which an evacuee bas any right
or interest in any capacity". The Act alw shows that
the p rnperty cannot be notified· as evacuee property
unless and until the person claiming interest in it bas
been given notice.
Reference may also be· made-to section 43 as indicating that the declaration under section 8 was intended to be made during the lifetime of the alleged
evacuee. This section lays down ''where in pursuance
of the provisions of this, Act any property has vested
in the Custodian neither the death of the evacuee at
any time thereafter, nor the fact that the evacuee
who had a right or interest in that property bad
ceased to be an evacuee at auy material time shall
affect the vesting or render invalid anything done in
consequence thereof." The section shows that where
the property bas vested in the Oust,odian, then the
death of the evacuee or his ceasing·to be an evacuee
afterwards shall not affect the vesting or render invalid anything done in consequence thereof. The section seems to suggest that the vesting must take place
in the lifetime of the alleged evacuee, otherwise
there was po point in providing that the vesting will
not be affected by "the death of the evacuee or the
evacuee ceasing to be so.
The Solicitor-General contended that section 43
embodies th,e principle "once an evacuee always an
·evacuee". This conclrn;ion is hardly justified on the
terms of section 43 as explained above and it finds no
support from the other provisions of the Act.
The
object and the scheme of the Act leave· little doubt
S.C.R. SUPREME COURT REPORTt;
7o5
that the Act was intended, as its title shows, to prnvide for the administration of evacuee property and
it is common grnund that this property bas ultimately
to 'be used for compensating the refugees who bad
lost their property in Pakistan'.
The Act contains
elaborate provisions as to how the administration is
to be carried ·out.
Section 9 ·enables the Custodian to take possession
ol the evacuee property vested in him under section 8
and section 10 which defines the powers of the Custodian generally enables him to take such measures as
be considers necessary or expedient for the purposes
of administering, preserving and managing any
evacuee property.
These are mentioned in detail in
sub-section (2) of section 10, clause (j), which authorises the Custodian to institute, defend or continue
any legal proceedmgs in any civil or revenue Court
on behalf of the evacuee.
Section 15 imposes an obligation on him to maintain a separate account of the property of each
evacuee.
Section 16 em powers the Custodian to restore the
evacuee property upon application to the evacuee or
any person claiming to be his heir provided he produces a certificate from the Central Government that
the evacuee property may be restored to him.
Upon
restoration the Custodian shall stand absolved of all
responsibilities in respect of the property so restored,
but such restoration shall not prejudice the rights, if
any, in respect of the property which any other person may be entitled to enforce against the person to
whom the property bas been so restored. -
By section 52 of the Act it is open to the Central
Government by notific:otion in the Official Gazette,
to exempt any person or class of persons or any property or class of property from the operation of all or
any of the provisions of this Act. In pursuance of this
section the Central Government issued Notification
No. S.R.O. 260, dated the 3rd July, 11!50,'which was
published in tbe Ga7.ette of India, Part II, section 3,
1953
Ebrahim
Aboobnker
and Another
v,
Tek Chand
Dolwani.
Ghutant
Hasan J.
1958
Ebrahini
Aboobnker
and Another
v.
Tek Chand
Dolwani.
Ghula1n
Hasan J.
706
SUPREME COURT REPORTS
[1953]
dated the 15th July, 1950, page 254, in which broadly
three categorie·s of persons were exempted: --
(a) Any person who on or after the 1st day: of
March, .1947, migrated from India to Pakistan but
had returned to India before the 18th day of July,
1948, and had settled therein;
(b) Any person who has left or le·aves for Pakistan on a temporary visit taking with himself a "No
objection to return" certificate, and has returned, or
returns, to India under a valid permit issued under
the Influx from Pakistan (Control) Act, 1949, for
permanent return to India; and
(c) Any person who has come from Pakistan to
India before the 18th day of October, l949, under a
valid permit issued under the Influx from Pakistan
(Control) Act, 1949, for permanent resettlement in
India.
These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand
that the person may cease to be an erncuee under
certain circumsta·-rces that he is reinstated to his
original position and his property restored to him
subject to certain conditions and without prejudice to
the rights if any in respect of the property wb1cb any
other person may he entitled to enforce against him.
These provisions also establish that tbe fact of a property being evacuee property is not a permanent
attribute of rnch property and that it may qease to be
so under gi.,en conditions.
Tbe property does not
suffer from any inherent infirmity but becomes
evacuee property because of tbe disability attaching
to the owner.
Once that disability ceases, tbe property is rid of that disability and becomes liable to be
restored to the owner.
•
Mr. Desai counsel for the petitioner referred i.n the
course of the arguments to section 93 of the Presidency Towns Insolvency Act and section 17 of the
Provincial Insolvency Act.
According to the former
"if a debtor by or against whom an insolvency peti ..
tion has been presented dies, tbe proceedings in the
•
S.C.R.
SUPREME COURT REPORTS
707
matter shall, unless the Court otherwise orders, be
continued as if he were alive".
By the latter section
"if a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the
matter shall, unless the Court otherwise orders, be
continued so far as may be necessary for the realisation and distribution of the property of the debtor".
'rhough there is slight difference in the language of
these two sections, the principle underlying the insolvency law seems to be that the death of the insolvent during the pendency of the application for
insolvency does not cause the proceedings to abate
but that they must be continued so that his property
could be administered for the benefit of the creditors.
There is no snch provision in the Act before us.
It
follows therefore that if the intention of the legislature had been to treat the person proceeded agains1l
under section 7 as alive for purposes of the proceedings even after his death, such a provision would
have been incorporated into the Act.
After giving our best consideration to the case we
are of opinion that the order of the 30th July, 19.51,
passed by the Custodian General declaring Aboobaker
Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand
and must be set aside. We accordingly allow Appeal
No. 65 of 19.53, arising out of Petition No. 10.5 of
19.52 and hold that the Custodian General had no
jurisdiction to pass the order of the 30th July, 1951,
and set it aside. We make no order as to costs.
Petition No. 106 of 1952 is not pressed and no
order need be passed in respect thereto. In view of
our order in Appeal No. 65 of 1953, no orders are
called for in Petition No. 247 of 1952.
Appeal allowed.
Agent for the appellants and petitioners: Rajinder
Narain.
Agent for the respondent in Petition No. 247:
G. H. Rajadhyaksha.
92
1908
Ebrahim
Aboob'1ker
and Another
v.
Tek Chand
Dolwani.
Ghularn
Hasan J.