# N. S. GUJRAL v. CUSTODIAN OF EVACUEE PROPERTY II ANR

- **Citation:** [1968] 1 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 1967-09-12
- **Case number:** Civil Appeal No. 642 of 1966
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. Ramaswami, G. K. Mitter, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-s-gujral-v-custodian-of-evacuee-property-ii-anr-4128
- **Pages:** 8

## Headnote

497
Displaced Persons (Compensation and ·Rehabilitation) Act (44
of 19541, s. 12 and Administration of
Evacuee Property Act (31
of 1950), ss. 10(1) and 10(2) (m) and (n)-lf violative of Arts. 14 and
19(l)lf) of the Constitution of India-Law impairing obligation under
contract-If ultra vires Constitution.
·
C
The appellant obtained a decree
against two persons who,
along with their wives, migrated to Pakistan. Before the decree
was passed, the two judgment debtors had
executed two deeds
releasing their property, which
was a building in favour of the
wives. The property was declared evacuee property under the
Administration of Evacuee Property Act. 1950 and on the appellant's
application, his claim l:ased on the decree was registered by the
D Custodian. Later, the Custodian held that the evacuee property
belonged to the wives of the judgment-debtors. The
appellant
filed a suit for setting aside the release deeds on the ground that
they were of no effect as being in fraud of the creditors. But, before the suit was filed, the Central Government. in pursuance of a
notification issued under s. 12 of the Displaced Persons (Compensa·
tlon and Rehabilitation) Act, 1954, acquired the property. As a
result of the notification. the property which was in law the pros perty of the evacuees-though it was under the administration qf .
and vested in, the Custodian under the 1950 Act-became the pro- .
perty of the Central Government free from all· encumbrances. So,
in addition to the main ·plea in the suit the appellant also contended
that s. 12 of the 1954 Act and the notification issued thereunder
violated Arts. 19(l)(f) and 14 of the Constitution. He further contended that the amendment by Act 91 of 1956 of s:·10(2)(m) of the
1950 Act. as a result of which the Custodian's power to pay the evaF cuee's debts was deleted from the clause, was ultra vires. On an
application under Art. 228, the High Court tried the two constitutional issues and decided them against the appellant and remanded
the suit to the trial court.
In appeal to this Court,
HEw: (l)(a) Section 12 of 1954 Act did not interfere with the
appellant's right to acquire, hold and
dispose of his property,
6 namely, the decree against the
evacuees. At no time did the
appellant have any right whatsoever in the property which vested ·
in the Central Government on the issue of the notification. Its
only effect was that the appellant could not proceed against the
property in execution of his decree. Therefore the appellant could
not claim the protection under Art. 19(l)(f). [501A: 502A-D]
(b) It could not be said that there was violation of Art. 14 on
JI the ground that decree-holders against non-evacuee property could
execute their decrees while decree-holders against evacuee property
could not: There is a reasonable ·classification
between evacuee
property and non-evacuee property, and .there is a clear nexus between the object to be achieved by the 1954 Act. namely, rehabilitation of evacuees from Pakistan. and the provision in s. 12. ty which
L/J(N)6BCI-6
498
SUPREME COURT REPORTS
(1968] I s.c.R.
I
the property of evacuees in India is to be utilized for such rehabili- A
iation. [502E-G]
(c) The appellant cannot also be heard to say that s. 12 impefrs
the obljgation of the judgment-debtors under contract between them
.and himself because. there is no prohibition against such a law in
the Indian Constitution. [501F]
(2) The amendment of s. 10(2)(m) made no difference to the legal
position, for the power of the Custodi.an to pay the debts of the B
evacuee still remained unimpaired under s. 10(2)(n) read with
·s. 10(1). Therefore, it was unnecessary to consider the invalidity of
the amendment of s. 10(2)(m). [500F-H]
Raja Bhanupratap Singh v. Assistant Cust.nian of Evacuee
Property, U,P. [1966] 1 S.C.R. 304, followed.
(3) Though the appellant could not claim to proceed against the C
property in suit or its income, after the date on which it became
vested in the Central Government by virtu

## Text

.,
A
B
N. S. GUJRAL
v.
CUSTODIAN OF EVACUEE PROPERTY II ANR.
September 12, 1967
[K. N. WANCHOO, C.J., R. S. BACHAWAT, V. RAMASWAMI,
G. K. MITTER AND K. S. HEGDE, JJ.)
497
Displaced Persons (Compensation and ·Rehabilitation) Act (44
of 19541, s. 12 and Administration of
Evacuee Property Act (31
of 1950), ss. 10(1) and 10(2) (m) and (n)-lf violative of Arts. 14 and
19(l)lf) of the Constitution of India-Law impairing obligation under
contract-If ultra vires Constitution.
·
C
The appellant obtained a decree
against two persons who,
along with their wives, migrated to Pakistan. Before the decree
was passed, the two judgment debtors had
executed two deeds
releasing their property, which
was a building in favour of the
wives. The property was declared evacuee property under the
Administration of Evacuee Property Act. 1950 and on the appellant's
application, his claim l:ased on the decree was registered by the
D Custodian. Later, the Custodian held that the evacuee property
belonged to the wives of the judgment-debtors. The
appellant
filed a suit for setting aside the release deeds on the ground that
they were of no effect as being in fraud of the creditors. But, before the suit was filed, the Central Government. in pursuance of a
notification issued under s. 12 of the Displaced Persons (Compensa·
tlon and Rehabilitation) Act, 1954, acquired the property. As a
result of the notification. the property which was in law the pros perty of the evacuees-though it was under the administration qf .
and vested in, the Custodian under the 1950 Act-became the pro- .
perty of the Central Government free from all· encumbrances. So,
in addition to the main ·plea in the suit the appellant also contended
that s. 12 of the 1954 Act and the notification issued thereunder
violated Arts. 19(l)(f) and 14 of the Constitution. He further contended that the amendment by Act 91 of 1956 of s:·10(2)(m) of the
1950 Act. as a result of which the Custodian's power to pay the evaF cuee's debts was deleted from the clause, was ultra vires. On an
application under Art. 228, the High Court tried the two constitutional issues and decided them against the appellant and remanded
the suit to the trial court.
In appeal to this Court,
HEw: (l)(a) Section 12 of 1954 Act did not interfere with the
appellant's right to acquire, hold and
dispose of his property,
6 namely, the decree against the
evacuees. At no time did the
appellant have any right whatsoever in the property which vested ·
in the Central Government on the issue of the notification. Its
only effect was that the appellant could not proceed against the
property in execution of his decree. Therefore the appellant could
not claim the protection under Art. 19(l)(f). [501A: 502A-D]
(b) It could not be said that there was violation of Art. 14 on
JI the ground that decree-holders against non-evacuee property could
execute their decrees while decree-holders against evacuee property
could not: There is a reasonable ·classification
between evacuee
property and non-evacuee property, and .there is a clear nexus between the object to be achieved by the 1954 Act. namely, rehabilitation of evacuees from Pakistan. and the provision in s. 12. ty which
L/J(N)6BCI-6
498
SUPREME COURT REPORTS
(1968] I s.c.R.
I
the property of evacuees in India is to be utilized for such rehabili- A
iation. [502E-G]
(c) The appellant cannot also be heard to say that s. 12 impefrs
the obljgation of the judgment-debtors under contract between them
.and himself because. there is no prohibition against such a law in
the Indian Constitution. [501F]
(2) The amendment of s. 10(2)(m) made no difference to the legal
position, for the power of the Custodi.an to pay the debts of the B
evacuee still remained unimpaired under s. 10(2)(n) read with
·s. 10(1). Therefore, it was unnecessary to consider the invalidity of
the amendment of s. 10(2)(m). [500F-H]
Raja Bhanupratap Singh v. Assistant Cust.nian of Evacuee
Property, U,P. [1966] 1 S.C.R. 304, followed.
(3) Though the appellant could not claim to proceed against the C
property in suit or its income, after the date on which it became
vested in the Central Government by virtue of tlie notification
under s. 12, he could ask the Custodian to pay him out of the moneys
lying with him on the date of such vesting if he can satisfy him in
the manner provided in s, 10(2)(n) read with s. 10(1). of the 1950 Act.
The trial court would therefore have to decide the issue whether
the relea~eeds were fictitious and fraudulent, and, if it found >n
favour of the appellant it would then be open to him to approach D
the Custodian for such orders . as the Custodian thinks fit to pass
with respect to the moneys, if any, lying with him on the date of
vesting. [503F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 642 of
1966.
Appeal by special leave from the judgment and order dated B
October 21, 1962 of the Punjab High Court (Circuit Bench) at
Delhi -in Civil Original No. 11-D o~ 1960 read with judgment and
<>rder dated October 26. 1964 of the said High Court in R.S.A.
No. 245-D of 1964.
N. S. Bindra and D. D. Sharma, for the appellant.
G. R. Rajagopaul, S. P. Nayyar for R. H. Dhebar, for the F
respondents.
The Judgment of the Court was delivered by
Wanchoo, C. J. The appellant obtained a decree for over
Rs. 41.000 against Modern Electric Iron and Brass Works, Delhi,
which was the property of two partners, namely, Mohd. Sabar G
and Noor Mohd. Butt, in January 1950. He also obtained another decree for over Rs. 95.000 against the same two persons and
one more to which proceeding the Custodian of Evacuee Property
(hereinafter referred to as the Custodian) had also been made a
party.
Before1 however, the first decree was obtained by the
appellant. Mohd. Sabar and Noor Mohd. Butt had in April 1947
executed two deeds of release with respect to their property in B
favour of their wives. Later Mohd. Sabar and Noor Mohd. Butt
and their wives migrated· to Pakistan and their properties were
declared evacuee properties under the Administration of Evacuee
Property Act, No. 31 of 1950, (hereinafter referred to as the
Gt:JRAL "· Cl'SI'flDUN (W a"4Jl100, O.J.)
.A
1950-Actl.
Under s. 10 of the 1950-Act the Custodian had the
p.Jwcr to pay any debt due from the evacuee to any person subject to rules framed thereunder. Further under the Rules a person to whom. an evacuee owed money could apply for registration
of his claim and the Custodian could register such claim; but mere
registration of a claim did not entitle the claimant to payment,
:B and the Custodian could refuse payment for reasons to be recorded.
The claim of the appellant. based on the first decree passed
in his favour, was registered by the Custodian. But in June 1950
ihe Custodian held that the evacuee property in question in the
present case belonged tq the wives of the judgment-debtors
C <namely, Mohd. Sabar and Noor Mohd. Butt). He further directed the appellant to go to the civil court to get the release-deeds
set aside. On November 28. 1955. the appellant filed the suit out
of which the present appeal has arisen in the court of the subordinate Judge First Class, Delhi, claiming that the release-deeds in
question were of no effect as being in fraud of the creditors. He
D claimed a declaration that the building in suit belonged to Mohd.
Sabar and Noor Mohd. Butt and not to their wives and that the
refease.<leeds of April 1947 were fictitious and fraudulent and intended to defeat and delay the creditors and were not binding on
the appellant. He also claimed that the Custodian was bound to
· open the account of the income of the said building in the name~
E
of Mohd. Sabar and Noor Mohd. Butt and the proceeds of the
said building were bound to be adjusted against the claims of the
appellant.
The suit was resisted by the Custodian and the Union of
India. Their case firstly was that the civil court had no jurisdiction to entertain the suit. Secondly, it was pleaded· that the prol' perty in dispute wnich was a building in the city of Delhi had been ,
acquired by the Central Government in pursuance of a notification
issued on June 3. 1955. under s. 12 of the Displaced
Persons
(Compensation and Rehabilitation) Act, No. 44 of 1954. !hereinafter referred to as the 1954-Act) and
therefore the appellant
could not get a declaration to the effect that the proceeds of the
G ;uit building should be adjusted against his claim. The appellant
had also pleaded in his pfaint that the acquisition of the building
by the notification of June 3. 1955 was subject to his rights nod
that in any case the notification and s. 12 of the 1954-Act were
11/rra vii·es.
Originally. the trial court dismissed the suit holding that as
H the property in suit had been acquired by the Central Government by tne notification dated June 3. 1955. the appellant could
not claim to proceed against the
property or its income, The
appellant went in appeal and tn~, appellate court remanded the
suit on the ground that tbe appellant's plea that the notification
ISOO
SUPllEllE COURT REPORTS
(1968] J S.C.L
and s. 12 of the 1954-Act were 111111' vires had not been decided. A
When the suit went back for re-trial on this issue, the appellant
applied for transfer under Art. 228 of the Constitution to the High
Court praying that the constitutional issue be first determined
by the High Court. This application was allowed and finally the
constitutional question relating to the validity of s. 12 of the 1954Act was considered by a Division Bench of the High Court. It B
may be mentioned here that it had been decided by the Subordi- ·
nate Judge that the civil court had jurisdiction and that matter is
not in dispute before us. When the matter came to the High
Court, the appellant further challenged· the amendment made to
the 1950-Act by which cl. (ml of s. 10(2l was amended as 11ltra
vires.
Reliance in this connection was placed on Art. 19 of the
Constitution and also on Art. 14. The High Court held against C
the appellant on both points and sent the case back to the trial
court. for further consideration in the light of its judgment on the
constitutional issues thai were raised. The appellant then applied
to the High Court. for gqmt of a certificate to appeal to this Court,
which was refused. Thereupon the appellant applied for and ob·
tained special leave from this Court; and that is how the matter D·
has come up before us.
The same two points which were urged before the High Court
have been raised before us on behalf of the appellant. So far as
the first point relating to the invalidity of the amendment to
s. l0i2)(m) is concerned, the matter is now of academic interest in E
view of the decision of this Court in Raja Blianupratap Singh v.
Assistant Custodian Evacuee Property U.P.('I.
It was held by
the Court that "the power to pay the evacuee's debts was derived
both under els. (nl) and (nl of s. IO<ZJ. Therefore the deletion from
cl. (m) of the Custodian's power to pay the debts, by the Amending
Act of 1956, and the consequential deletion of r. 22 of the Rules F
framed under the Act, by which a machinery was provided for
exercising that power did not affect the power which is conferred
by ,.s. 10(2) (n) and by s. 1001. The power to administer. under
s. 10(1) is not merely a power to rrianage on behalf of the evacuee
so as to authorise the Custodian onlv to recover and collect the
assets of the evacuee; it includes· power to discharge his obligations as well, to pay such debts which, in the opinion of the Cus- G
todian, are binding upon the evacuee". This Court further held
that the decree of the civil court was not decisive or the question
whether a person making a claim. was entitled to the money
claimed by him; it was for the Custodian to determine whether
he was so entitled. In· view of this decision it is unnecessary to
express any opinion as to the inva,lidity of the amendment of cl. H
(In) of s. 10(2> for the amendment lri'ade llD' dilfcrem:e to the legal
(') [1966] 1 S.C.R. 304 •.
Gt'JRAL ti. Ollfll'ODIA..V
(W ancAoo, O.J.)
A, ·position as the power of the Custodian to pay the debls c:I. 1he
.~vacuee still remained'unimpaired. If hC was of iopinion ~·1111C
.debts were genuine; be cb'\Jld pay tln:m.
.1· "
•
-
1
This brings ~s to jhe mafo question tliat' has ~
ugucd iii
ti)~ present appeal, nam~!Y·; ttjat s. '12 of the 1954-Ad is in,aJ¥l
because it is an infringement of the ri,!!ht to h9ld property ..,vhicll
l3 the.appellant has under Art 19(1)(f) p~ the ConstitutiOn ~is•
saved .,as .a reasonable, restriction thereon.
T~ aigmDent is put
thus.
The appellant had advanGed ,money to .. Che two cv.K• :
namely, Mohd. Sabar and Noor Mohd. Butt. On U!e basis ot. the
loan, 'he had .obtained a. decree in '.JanuiuY 1950'. He had the
power to execute; that decree aga,inst the piop;rty Of his~
.C. debtors. By taking· aw11y ·the property .of tlie j11dgmenr.C ~
after they ,had ~me
evacu~~ apd by vesting that ~ty
free
from all encunilirances in the ;Central Qovernment uqdlir s. 12 .d
the 1954-~ct, the· appellant's right to proceed against tbat pto.
~rty :had ,d_isappeared.
:rher~foi'ci. s. 12 of t!ie• 19S4-Ad -
v1olat1ve of. Art. 19([)(f),.11s.the ~ppella3ti~~ of. the deem:
D
~~df=n<!~~!~sd ~~1~rySpp~:p&~ ~ ~~
~
America, ·namely, (i) 5( on Hoffman v. The City of ,Quincy('). (iil
'Ranger v. 'City of New Orleans,(') !iii) Peirce C~
"V;· Millaa
E. Getz(') and ~iv) W. B. Worth11_n Co, v. μrs. W, D. T"-"
· Befmewe .consider the argument raised before us we may SllJ at
:E once that the four cases. on which _reliance has been plaad on bohalt. of. the cap!!cllant are entirely beside_ the point and. of. no assi5,
tance.
These .cases Wjlre b~sed ,on a .prmision ~ Art. I, s. 10 d
.the American Constitution which inter alia lays down dlat ""DJ
·State shiill ........ pass ~y law _impairing the obligation cl conlndl
...... ".
There is no such
provision in. 9llI' Constitutioo_'..ud
F therefore the .appellant \:llDDOt be heard to say that i!s II- 12 of. ..
1954-Act impairs the obligation of the contfa,ct ~him
and
the two evacu~. ths: section !s bad.
Now let us turn to the argument based on Art. 19 (l)(f); It
. is clear t6 us that the argument as put forward on behalf c:I. 1llD
appellant is fallaciou& and untenable. Section 12 of the 19S4-Ad
tG does not in any 111anner affect the' decree held by the appeflaut
against Mohd.· Sabar and Noor Mohd. Butt. All that it p:ovi!lcl
is :that the property, which• upto the time the Act of. l~ -
passed, was in law the property of the evacuees, though it -
under the administration of the Custodian and vested in him for
that purpose under the 1950.Act, woUtd on a notific:atidn issacd
under s. 12 of the 1954-Act become. the property of the Cai&af
B
•
(') 18 L.Ed. Wallace 403.
(') 26 U.S., S.C.R. 132.
(') 76 L.Ed 866.
(') 78 L.Ed. J344.
502
SUPRE)IE COURT REPORTS
[1968] l s.o.a.
Government and the right. title, interest of the evacuee in such A·
property would thereupon be extinguished and the property shall
vest absolutely in the Central Government free from all encumbrances.
At no time did the appellant have any right whatsoever
in the property which vested in the Central Government on the
issue of the notification under s. 12. It maii be that if the owners
had not become evacuees and if the property had not been declar- B
ed evacuee property, the appellant might have proceeded against
that property in execution of his decree. It may also be that he
cannot do so now after the said notification under s. 1:2. But s. 12
does not in our opinion interfere with the appellant's right to
acquire. hold and dispose· of his property, namely the decrees
against Mohd. Sabar and Noor Mohd. Butt. As tl\e appellant had C
no iri.terest in the property in suit, the fact that it was acquired by
the Central Government ~ a notification under s. 12 of the 1954Act did not in any way affect the appellant's right to acquire, hold
and dispose of his property. In the circumstances, the appellant
cannot claim protection under Art. 19(J)(f) at all with respect to
the property in suit aljd it is not necessary to consider whether
s. 12 could be saved under Art. 19(5). We therefore agree with the D
High Court that the appellant cannot claim that s. 12 is ultra
vires Art. 19(l)(f) and therefore the notification made thereunder
affects his fundamental right to acquire, hold and dispose of property.
Further the argument thats. 12 is bad under Art. 14 has also E
no force. The contention under this head is that the creditors
who have decrees against non-evacuees can execute their decrees
against the properties of non-evacuees. but the creditor.: having
decrees against evacuees cannot execute them against their properties after they liad vested in the Central Gowrnment by a
notification under s. 12 of the 1954-Act; and this amounts to discrimination under Art. 14. But it is well-settled that ihe Consti· F
tution does not contemplate equality of all laws or application of
all laws equally to every person. There is tt clear dassification
between evacuee property and non-erncuee property. There is a
cle_ar nexus between the object lo be achieved by the enactment
of th~ 1954-Act. namely. rehabil.itation of evacuees from Pakistan
and the provision in s. 12 by which the property of evacue<!.\. in Q·
India i; to be utilised for such rehabilitation. There is therefore.
no infringement of Art. 14 in the circumstances.
Lastly it is urged on behalf of the appellant on the basis of
the decision of this Court in Raia Bluumprcitap Si11ghl'1 that the
appellant was entitled to ask the Custodian to consider his case
under s. 1012J Int read with s. 10(!) of the 1950-Act, and for that B
purpose it is necessary to decide the main question raised in the
suit, namely. that the release-deed; of 19.i7 in fa\•our of the wives
\' i [1966] 1 S.C.R 304.
GNRAL V. Cl'STODIAN
(Wcmd100, C.J.)
503
l. .were of no effect and therefore the property, though evacuee property, was the property of the judgment-debtors of the appellant,
namely, Mohd. Sabar and Noor Mohd. Butt. It is also pointed
out that the notification of June 3, 1955 was only with respect to
immovable property and there was nothing to show that the Central Government had issued a notification under s. I 4(1)(b) of the
•
1954-Act relating to cash balance, if any, lying with the Custodian
on the date the property was acquired. It is urged that all that
the notification of June 3, 1955 means is that as from that date no
action could be taken against the property in suit or its income.
But if there was any money with the Custodian on the date of
vesting and if no order had been passed in re,Spect thereof under
s. 14(l)(b), the appellant would be entitled to ask the Custodian
C to consider whether he should be paid anything out of the moneys
lying ·with the Custodian provided he could establish that the propeny was the property .of his judgment-debtors, namely, Mohd.
Sabar and Noor Mohd. Butt and not of their wives. The declaration that the. appellant sought was wide in terms in as muc'll as
he claimed that he was entitled to have his claim adjusted against
D the proceeds of the said building and these proceeds will include
any income of a period before the date of vesting under the notification under s. 12. It is urged that as such it is necessary to
decide the issue whether the release deeds of April 1947 were fictitious and fraudulent intended to defeat and delay the creditors
and therefore the property belonged to Mohd. Sabar and Noor
E Mohd. Butt. If that is held in his favour by the civil courts he
would be entitled to go to the Custodian and ask him to pass an
order in his favour under s. 10(2)(n) read with s. 10(1) and pay
him out of the moneys lying with him on the date the property
vested in the Central Government under the notification under
s. 12.
r
We are of op1mon that there is force in this contention.
Though the appellant cannot claim to proceed against the property
in suit or its income after the date on which it vested in the Cent-
. ral Government by virtue of the notification under s. 12, he can
a~k the Custodian to pay him out of the moneys lying with him
G on the date of such vesting if he can satisfy him in the nianner
provided in s; 10(2)(n) read with s. 10(1) of the 1950-Act. We
therefore direct that when the case goes back to the trial court as
ordered by the High Court, the trial court will decide the issue
whether the deeds of release of April, 1947 are fictitious"and
fraudulent intended to defeat and delay the creditors and not
binding on the appellant. If the trial court decides in favour of
B the appellant it will then be open to him to approach the Custodian under s. 10(2)(n) read with s. 10(1) for such orders as the
Custodian thinks fit to pass with respect to moneys, if any, lying
with him on the date of vesting. It may be mentioned that learned
counsel for the appellant submitted that this property in fact
(lMS) 11.0.L
Wifed in the Central Go\'efmnent by 80lllC notification in 1958 A
and not tiy the notification dated Jooe 3, 19SS. as ·mentioned ia
the plaint.
On the olher side it has been submitted that -
orders haw: been pqed by the Central Government under s. 14
(l)(b}. Tbese are matters which may require to be gone iato by
the trial court and for that purpose it may be necessary to amend
the plaint and the written statement. and this we permit.
a
We therefore dismiss the appeal subject to the obluvationl
made above. In the circumstanees we order (J8ftics to bear tllrir
. own costs of this Court as also of the Higlt Court. Cosls of odJer
courts will abide the final result.
V.P.S.
Apptal dismissed.