# HAR GOVIND v. AZIZ AHMAD & ANR

- **Citation:** [1970] 1 S.C.R. 796
- **Court:** Supreme Court of India
- **Decided:** 1969-08-08
- **Case number:** Civil Appeal No. 381 of 1965
- **Bench:** J. C Shah, Acting C.J, V. Ramaswam!, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/har-govind-v-aziz-ahmad-anr-4696
- **Pages:** 7

## Headnote

Adminis1ration of Evacuee Properry Act, 1950 (3! of 1950), s. 40Vendor migrating to Pakistan after transfer of
property-Property not
declared evacut: property-Validity of transfer without confirmation by
Custodian-Admi11is1ration of Evacuee Property Ordinance. 1949 (27 of
B
1949), is. 38 and 39.
C
The first res90ndent entered into an agreement to sell his properties
to the oppellant.
Disputes relating to completioo df the sale were referred to arbitration.
An award was made directing the first respondent to
execute the documents in respect of the transfer by him wilhin one month
from the date of the receipt of the confirmation or approval according to
law, failing which the appellant was at liberty to get it executed and registered through court.
The award was made a rule of 'the court
on
November 30, 1949 and a decree on the basis of the award was granted.
The fir<t respoodent left India 'for Pakistan some date after November 22,
I969. The appellant moved the Deputy Olstodian of Evacuee Property
for confirmation of the transfer unJer s. 38 of the Administratioo of
Evacuee Property Ordlnance, 1949 or under s. 40 of the Administration
of Evacuee Property Act, 1950. The Deputy Custodian accorded confirmation, but the Additional Oistodian set aside the order df the Deputy
Custodian.
The appellant filed an application
for
execution of
the
decree on the basis of the award lo which objections were filed by
the
Custodian. The District Judge held that on the date Of the decree tramfer
of properties could not be effected unless confirmed by ·the Custodian,
Tiie appellant's appeal to the High Court was dismissed. In appeal to
this Court, it was contended that there could be no bar to tbe execution
of the decree based on the award, since the respondent's properties were
never declared to be evacuee properties
either under Central Ordinance
27 of 1949 or Central Act 31 of 1951 and that they did not vest in the
Custodian unless they were so declared
after appropriate
proceedings.
Disrr.issing the appeal,
HELD ; Under the prov1S1ons of s. 38( I) of Central Ordinance 27
of 1949 ana s. 4-0(ll of Central Act 31 of 1951, transfer of property was
ineffective unless confirmed by the Custodian even if a person became an
evacuee after the date df transfer.
It was not necessary that the property
should have been declared or notified to be evacuee property before tho!e
provisions were attracted. (800 DJ
In the present case the respondent had become an evacuee within the
meaning of s. 2( d) of the Ordinance and the Act. The Additional Custodian declined to confirm the tramfer made by the respondent and therefore the condition precedent for a valid transfer remained unsatisfied.
Further, even according to the award the confirmation or approval of the
Custodian had to be obtained before the transfer of documents were to be
executed and completed in accordance with law. It was incumbent on the
D
E
F
G
H
•
A
B
c
D
E
F
G
H
HAR GOVIND v. AZIZ AHMAD (Grover, J.)
797
appellant to obtain the confirmation order before he could ask for any
further steps to be taken by the courts in the matter of execution and registration df the transfer deed. [800 HJ

## Text

796
HAR GOVIND
v.
AZIZ AHMAD & ANR.
August 8, 1969
[J. C SHAH, ACTING C.J., V. RAMASWAM! AND A. N. GROVER, JJ.]
Adminis1ration of Evacuee Properry Act, 1950 (3! of 1950), s. 40Vendor migrating to Pakistan after transfer of
property-Property not
declared evacut: property-Validity of transfer without confirmation by
Custodian-Admi11is1ration of Evacuee Property Ordinance. 1949 (27 of
B
1949), is. 38 and 39.
C
The first res90ndent entered into an agreement to sell his properties
to the oppellant.
Disputes relating to completioo df the sale were referred to arbitration.
An award was made directing the first respondent to
execute the documents in respect of the transfer by him wilhin one month
from the date of the receipt of the confirmation or approval according to
law, failing which the appellant was at liberty to get it executed and registered through court.
The award was made a rule of 'the court
on
November 30, 1949 and a decree on the basis of the award was granted.
The fir<t respoodent left India 'for Pakistan some date after November 22,
I969. The appellant moved the Deputy Olstodian of Evacuee Property
for confirmation of the transfer unJer s. 38 of the Administratioo of
Evacuee Property Ordlnance, 1949 or under s. 40 of the Administration
of Evacuee Property Act, 1950. The Deputy Custodian accorded confirmation, but the Additional Oistodian set aside the order df the Deputy
Custodian.
The appellant filed an application
for
execution of
the
decree on the basis of the award lo which objections were filed by
the
Custodian. The District Judge held that on the date Of the decree tramfer
of properties could not be effected unless confirmed by ·the Custodian,
Tiie appellant's appeal to the High Court was dismissed. In appeal to
this Court, it was contended that there could be no bar to tbe execution
of the decree based on the award, since the respondent's properties were
never declared to be evacuee properties
either under Central Ordinance
27 of 1949 or Central Act 31 of 1951 and that they did not vest in the
Custodian unless they were so declared
after appropriate
proceedings.
Disrr.issing the appeal,
HELD ; Under the prov1S1ons of s. 38( I) of Central Ordinance 27
of 1949 ana s. 4-0(ll of Central Act 31 of 1951, transfer of property was
ineffective unless confirmed by the Custodian even if a person became an
evacuee after the date df transfer.
It was not necessary that the property
should have been declared or notified to be evacuee property before tho!e
provisions were attracted. (800 DJ
In the present case the respondent had become an evacuee within the
meaning of s. 2( d) of the Ordinance and the Act. The Additional Custodian declined to confirm the tramfer made by the respondent and therefore the condition precedent for a valid transfer remained unsatisfied.
Further, even according to the award the confirmation or approval of the
Custodian had to be obtained before the transfer of documents were to be
executed and completed in accordance with law. It was incumbent on the
D
E
F
G
H
•
A
B
c
D
E
F
G
H
HAR GOVIND v. AZIZ AHMAD (Grover, J.)
797
appellant to obtain the confirmation order before he could ask for any
further steps to be taken by the courts in the matter of execution and registration df the transfer deed. [800 HJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of
1965.
Appeal by speciail leave .from the judgment and decree dated
May 2, 1961 -of the Allahabad High Court in Execution First
Appeal No. 10 of 1954.
Naunit Lal, for the appellant.
V. A. Seyid Muhammad and S. P. Nayar, for the respondents.
fhe Judgment of the Court was delivered by
Grover, J.
This fo an appeal by special leave from a judgment
of the Allahabad High Court confirming the order of the Dis-
:rict Judge dismissing an Execution Application filed
by
the
appellant.
Or. June i6, 1948 the appellant entered into an agreement
with Aziz Ahmed Khan-respondent No. 1-for the
sale of
certain properties comprising houses and plots in the towu of
Bareilley.
The sale consideration of Rs. 1,45,000/- was stated
to have been already paid by the appellant to the vendor. Subsequently disputes arose between the vendor and the appellant
regarding the completion of the sale.
These disputes wece refered to the arbitration of Shri R. R. Agarwal who gave an award
on August 30, 1949 which was made a rule of the court on
November 30, 1949. A decree on the basis of the award was
granted in favour of the appellant.
Sometimes after ·November 22, 1949 the vendor Aziz Ahmed
Khan left India for Pakistan.
On December 7, 1950 the appellant moved the 'Deputy Custodian (Judicial) Meerut Circle for
confirmation of the transfer under s. 3 8 of the Administration of
E~acuec Property Ordinance, 1949, (Ordinance No. 27 of 1949),
or under s. 40 of the Administration of Evacuee Property Act
1950 (Act 31 of 1950).
On 9th May 1951 the Deputy Custodian accorded confirmation.
The Additional Custodian, however, took suo motu action in exercise of his revisional jurisdiction and set aside the order passed by the Deputy Custodian.
On April 4, 1952 the appellant filed an application for execution
of the decree passed on the basis of the award.
On May 10,
1952 objections were filed on behalf of the Custodian to the
execution.
The District Judge held that the award made on
August 30, 1949 'C&nld not have the effect of transferring the
properties as the approval of the Collector had not been obtained under the notification dated July 29, 1949 which had been
.
'
'
~'
798
SUPREME COURT REPORTS
(1970] l S C.R.
issued under s. 26 of U.P. Administration of Evacuee Property
Ordinance No. 1 of 1949 and that on the date of the decr~e the
transfer of properties could not be effected
unle5'
confirmed
by the Custodian.
It was further held by him thai no interest
by way of charge in favour of the appellant had been created
on the properties in dispute.
He was further of the view that
s. 17(1) of the Central Act of 1950 created a bar to execution
-Of the decree.
The Execution application was consequently dismissed.
The appellant filed an appeal to the High Court which was
dismissed.
When the appeal came up for hearing before this
Court on February 22, 1968 it was considered expedient to have
further findings on certain points.
The following questions were
therefore framed and remitted to the High Court for that purpose.
( 1 ) the date on which Aziz Ahmed Khan migrated
to Pakistan.
(2) whether the properties of Aziz
Ahmed
Khan
vested in the Custodian of Evacuee
Property
under U.P. Ordinance
I of 1949 or Central
Ordinance 12 of 1949 as made appiicable to the
State of U.P. by U.P. Ordinance 20 of 1949 or
under the Centrai Ordinance
27 of 1949 or
under Central Act of 1950.
The High Court remitted these matters to the
District Judge.
Hi< finding on the first que.stion was that Aziz Ahmed ¥.han
had migrated to Pakistan on some date af!er November 22. 1949.
On the second question he found that Aziz Ahmed Khan·s properties did not vest ir. the Custodian of Evacuee Propcrtv under
any of the Ordinances or under the Central Act 31 of 1950.
Certain additional evidence was produced before the High Court.
The High Court expressed agreement with the conclusion> of the
District Judge on both the
points.
It may be mentioned that
on certain subsidiary points the learned District Judge had also
found that it had not been proved that a valid deciaration under
s. 7(1) of the. Central Ordinance 27 of I 949 or of the corresponding provisivn in the Central Act 31 of 1950 was made for
declaring Aziz Ahmed Khan ari evacuee.
ln the opinion of the
learned J udgc such a declaration was necessary if his properties
were to be declared evacuee properties.
In view of the findings which have been returned by
the
High Court 011 the points referred, it has been
contended on
behalf of the appellant that there could be no bar to the e~e
cution of the decree which was based on
the
award. It is
A
r·
E
F
G
H
A
B
c
D
E
F
.c
H
HAR GOVIND v. AZIZ AHMAD (Grover, J.)
799
pointed out that on the conclusions at which the High Court has
now arrived Ihe properties of Aziz Ahmed Khan
were
never
declared to be evacuee properties either
under
the Central
Ordinance 27 of 1949 or the Central Act 31 of 1950, and
they could not vest in the Custodian unless they had been so
declared after appropriate proceedings.
It is urged
that the
decree in favour of the appellant was of the nature of a decree
passed in a suit for specific perfonnance.
The court could and
should have executed a conveyance in favour of the appellant
since Aziz Ahmed Khan was no longer available or was refusing to do so and the confirmation of the Custodian could be
obtained before the registration was effected.
According to the
counsel for the appellant the Additional Custodian had declined
to confirm the transfer at the previous stage because there was no
deed of sale or transfer.
Counsel for the respondent has drawn attention to a decision
of this Court in Azipwnissa & Others v. The Deputy Custodian
Evacuee l'roperties, District Deoria & Ors.(') in which the effect
of the declaration of U.P. Ordinance 1 of 1949 to be invalid
by the courts came up for the consideration, as also of the subsequent evacuee legislation namely, Central Ordinance 27 of 1949,
Central Act 31 of 1950 and the Administration of Evacuee Property (Amendment) Act, 1960. It appears to have been held in
that case that the property which had vested under the U.P. Ordinance 1 of 1949 continued to vest in the Custodian notwithstanding the fact that the High Court of Allahabad in Azimunnissa &
Ors. v. Assistant Custodian(") held the vesting to be invalid. This
was the result of the introduction of s. 8(2-A) in the Central Act
of 1931 by the Central Amendment Act I. of 1960. 1n the present case, however,. Aziz Ahmed Khan migrated to Pakistan after
Noveml;>er 22,;1949. At that point of ti.me it was Central Ordina;nce 27 of 1949 which was in force. It appears highly doubtful
that the respondent could take advantage of the provisions of automatic vesting contained in U.P. Ordinance 1 of 1949.
There is, however, a serious hurdle in the way of the appellant even when the provisions of Central Ordinance 27 of 1949
or the Central Act 31 of 1950 arc taken into consideration.
Section 3 8(1) of that Ordinance provided that no transfer rf
any right or interest in any property after the
14th day
of
August 194 7 by or on behalf of an evacuee or by or on behalf of a person who had become an evacuee after the date
of the transfer shall be effective so as to confer any rights or
remedies on the parties to such transfer unless it was confirmed
by the Custodia,n.
The provision of s. 40 of the Central Act
(I) (1961) 2 S.C:R. 91.
(2) A.I.R. 1957 All. 561.
L15S·.1pCl/69 -7
8 00
SUPREME COURT REPORTS
[1970] I S.C.R
31 o( 1950 were similar though ther~ was a certain change in
the language. Sub-section (!)of that section was in the following
terms:-
"No transfer made after the 14th day of August,
1947, but before the 7th day of May 1954, by or on
behalf of any person in any manner whatsoever of any
property belonging to him shall be effective so as to
confer any rights or remedies in respect of the transfer
on the parties thereto or any person claiming under
them or either of them, if, at any time
after
the
transfer, the transferor becomes an evacuee within the
meaning of section 2 or the property of the transferor
is declared or notified to be evacuee property within the
meaning of this Act, unless the transfer i5 confirmed
by the Custodian in accordance with the provisions of
this Act".
Under both these enactments transfer of property was ineffective
unless confirmed by the Custodian even if it was made by a
person who became an evacuee after the date of the transfer.
It was not necessary that the property should have been d~
clared or notified to
he evacuee property before the aforesaid
provisions were attracted.
Under s. 4011) oi the Act, the transfer was to be ineffective in both eventualitb; (1) if the transferor became an evacuee within the meaning of s. 2 after the
transfer or (2) if the transferor's property had been declared
or notiiicd to be evacuee pwpcrty. It is abundantly clear that
if At.iz Ahmed Khan became an evacuee even after the transfer, s. 38(1) of the Ordinance and s. 4(111) o[ the Act be.ceme
applicable.
One of the meanings of the word
"evacuee"
as
~iven in the definition in s. 2\d) of the Ordinance and of the Act
\\'<.IS:-
Section 2(d) (i) "evacuee" means any person,-
who, on account of the setting up of the Dominions
of Jndia and Pakistan or 011 account of civil disturbances or the fear of such disturba11ces leaves or has,
on or after the !st day of March, 1947, left any place
in a Province for nny place outside the territories now
forinin;i part of India,"
Aziz Ahmed Khan became an evacuee within the meaning ol the
above definition.
It was necessary. therefore, for the appellant
to have obtai11cd the confirmation of the Custodian in respect
of the trat.sfer which had been made by Aziz 'Ahmed Khan
in his fayour
of the properties
in question.
The
Additional
Custodian declined to confirm the transfer and thus the condition precedent for the transfer to become effective remained
A
B
c
D
E
F
G
H
~'
,~ '\
·· ..
A
B
c
D
HAR GOVIND v. AZIZ AHMAD (Grover; r. f
8 0 I
umaiisfied. -It is ~ignifi_cant that even in the award which formed the basis· of the decree' it had been provided "the second party
(Aziz Ahmeq Khan) is _hereby directe<jl to execute the necessary
documents in respect . of the transfer by him of the properties
referred to -above within one month from the date of the receipt
of the confirmation or approval according to law failing which
the first· party will, at his option, get the same executed and
registered through court on the basis of this award which would
be' made a· rule of the court.
Therefore according to the award
Jh~ confirmation or approval of the Custodian had to be obtained
before the transfer documents were to be executed and completed
jn accordance ·with law. It was incumbent on the appellant to
obtain· the confirmation order "before he could ask for any further
steps to be taken by the courts in the matter of execution and
registration Of the transfer deed.
Under s. 39 of the
Central
Ordinanc-e 27 of 1949 no document could be registered of the
nature -mentioned in s. 38 11nless the Custodian had confirmed
the t,ransfer;' Similar provisions were contained in s. 40 of the
Central ,Act. 31 .of 1950.
The prayer in the Execution Appli-
, cati9n ma:r:;the 'court might grarit assistance "by execution of sale
9~ed UI!der;:;the: en~bling para 5 ·of the Decree" could not be
.e~tertaip:ed.' iw ii~'*ded to by ti\e Executing Court.
.
.
" There: is one matter, however, on 'which we would like to
~xprtss no ·view and leave it open to the appellant to take such
E'·' .. 'stiai$' a~ he may be- adviSed.
Para 6 of the award which became
- part of'the decree was as follows :-
G
H
t-..
-· .,,. .
. ·..
· "The .plaim of the first party for this transfer and
-·
· exchange consideration is Rs. 1,50,000/- (one lac fifty
thousand) on account of all principal money and interest
and other expenses C?lculated to date against the second
party Sri Aziz Ahmed Khan; which the second party
~ill pay with interest at 12 p~r cent per annum in case
the tran~action and transfer (lf the properties referred
to above in favour of the first part Sri Sardana is not
confirmed or approved in any way and for any other
reasons whatsoeyer.
'sri Sardana will Jorce the payments
against the
properties r,eferred to above ;,tnd these properties are
here'by charged with this cfaim and Sri Sardana will
have" l;lis remedies to enforce the payment of the above
claim· against all other properties of the second party
and also against his persmi."
The High Court in the judgment 'under appeal dealt with this
question as if the charge was on the evacuee property. On the
reasoning which has been pressed before us about the necessity
802
SUPREME COUllT REPORTS
[ 1970] l S.C.R.
-0f a declaration under the provisions of Central Ordinance 27 of
1 ~49 or Central Act 31 of 1950 this pan of the judgment does
not appear to be correct.
We would, however, refrain from
expressing any final opinion as in fairness to both sides this
question should be left for being decided, if taken, in appropriate
proceedings including proceedings before the Executing Court.
With the above observations the appeal is dismissed but in
view of the entire circumstan°es we make no order as to costs.
Y.P.
Appeal dismissed.
A
B