Judgement

JAGANNADHADAS J.: These are two connected appeals arising out of a common judgment of the High Court of Patna on two applications to it dated. 5-7-1950 and 28-7-1950, under Art 226 of the Constitution. The State of Bihar is the appellant in both the appeals. The first three respondents in Appeal No. 97 are the sons of the fourth respondent therein, viz. Kumar Rani Sayeeda Khatoon (hereinafter referred to as Kumar Rani). The said Kumar Rani is also the first respondent in Appeal No., 98. The other respondents in both the appeals are Government Officers under the appellant, the State of Bihar. The applications before the High Court arose with reference to action taken against (1) the property, and (2) the person, of Kumar Rani by the Officers of the Government of Bihar, under the following circumstances.

2. Kumar Rani was admittedly born in the territory of India and claims to be the lawfully wedded wife of captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya by virtue of an alleged marriage between them in 1920 according to Arya Samaj rites and subsequently according to Muslim rites. She owned and possessed considerable properties. In 1946 she created a wakf of her properties consisting of 427 villages for the maintenance and support of herself, her sons and their descendants, by executing a deed of Wakf-ulalAulad dated 4-5-1946, by which she divested herself of all her interest in the said properties and vested them in Almighty God. She appointed, herself as the sole mutwalli for her lifetime or until relinquishment, and her three sons to succeed her as joint mutwallis.

The deed also provided that the net income was to be spent for the maintenance of herself and her three sons with the direction that not more than half should be spent by the wakifa for her own use. In July, 1948, Kumar Rani went to Karachi. In December, 1948, she required to India from Pakistan on a temporary permit and went back to Pakistan in April 1949. On 21-6-1949, the Bihar Administration of Evacuee Property Ordinance, 1949 (Bihar Ordinance No. 3 of 1949) came into form. The Deputy Custodian of Evacuee Property issued a notification on 2-9-1949, under S. 5 of this Ordinance, declaring all the properties comprised in the abovementioned wakf estate to have vested in the Custodian as being evacuee property. He took possession thereof between the 20th September and 2-10-1949.

On 14-5-1950, Kumar Rani again came back to India under a permanent permit obtained from the High Commissioner for India in Pakistan. This permit was, however, cancelled on 12-7-1950, by the Deputy High Commissioner, on the ground that this was wrongly issued, without the concurrence of the Government, as required by the rules made under the Influx from Pakistan (Control) Act, 1949. In view of this cancellation, the Sub-Inspector of Police, Gaya, issued notice to Kumar Rani directing her that since her permanent permit had been cancelled, she should leave India by. 31-7-1950.

In view of these happenings two applications were filed before the High Court of Patna, one dated 5-7-1950, challenging the validity of the action taken by the Deputy Custodian declaring the wakf estate as evacuee property and taking possession thereof on the basis of that declaration, and another application dated 28-7-1950, challenging the validity of the order of the Sub-Inspector of Police, Gaya, directing Kumar Rani to leave India. The first of these applications was filed by Kumar kani along with her three sons as petitioners and the second by Kumar Rani alone. Both these applications were allowed by the High Court and hence these appeals by the State on have granted by the High Court. These two connected appeals came up for hearing before this Court on the 26th and 27-10-1953.

This Court after hearing counsel on both sides was of the opinion trial one of the essential facts (to be mentioned in detail herein below when dealing with Appeal No. 97) requisite for a proper decision of Appeal No. 97 had be