1. Vesting of entire property in Custodian under Section 11, Evacuee Interest (Separation) Act, 1951, despite only a partial share being declared evacuee property. (Para 1 , 2 , 3 )
Back
Next 
1961 Supreme(SC) 123
SUPREME COURT OF INDIA
22nd March, 1961
B.P. SINHA, C.J.I., S.K. DAS, A.K. SARKAR, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.
Abdul Hakim Khan and others, Petitioners
Versus
Regional Settlement Commissioner-cum-Custodian of Evacuee Property, Bhopal and others, Respondents.
Petition No. 91 of 1956.
Advocates appeared
Mr. S. P. Sinha, Senior Advocate (Mr. Shaukat, Hussain, Mrs. E. Udayarathnam and Mr. S. S. Shukla, Advocates, with him), for Petitioners; Mr. N. S. Bindar, Senior Advocate (M/s. R. H. Dhebar, and T. M. Sen, Advocates, with him), for Respondents Nos. 1 to 4.
Advocates:
E.UDAYARATHNAM, Hussain, N.S.BINDRA, R.H.Dhebar, S.P.SINHA, S.S.SHUKLA, SHAKUT HUSSAIN, T.M.SEN
E.UDAYARATHNAM, Hussain, N.S.BINDRA, R.H.Dhebar, S.P.SINHA, S.S.SHUKLA, SHAKUT HUSSAIN, T.M.SEN
Section 11 of the Evacuee Interest (Separation) Act, 1951, cannot vest the entire property in the Custodian if only a partial share was declared evacuee property under the 1950 Act; it cannot be used to seize property belonging to non-evacuees.
Headnote:(A) Administration of Evacuee Property Act, 1950 - Section 7; Evacuee Interest (Separation) Act, 1951 - Sections 2(b), 2(d), 6, 8, 10, and 11 - Vesting of property in Custodian - Scope of Section 11 - Where an order under the 1950 Act declared only a specific share of a property as evacuee property, a subsequent order under Section 11 of the 1951 Act cannot vest the entire property in the Custodian simply because no claims were filed - Section 11 cannot be interpreted to vest property that was not declared as evacuee property, as this would defeat the object of the Act and violate the fundamental right to hold property. (Paras 11-14)
(B) Composite Property - Interpretation of "determining" vs "separating" interest - The determination of interest relates to ascertaining the quantum of interest as a mortgagor, mortgagee, or co-sharer, whereas separation occurs when the interest is already known. (Paras 12-13)
Facts of the case:
A deceased person left immovable properties to be shared among surviving wives and children. Some heirs migrated and were declared evacuees, and a 4/7th share of the property was declared evacuee property under the 1950 Act. Subsequently, an order was passed under Section 11 of the 1951 Act vesting the entire property in the Custodian on the grounds that no claims for separation of interest were filed by the non-evacuee co-sharers following the issuance of notices.
Findings of Court:
The order vesting the entire property in the Custodian cannot be sustained. Section 11 of the 1951 Act does not empower the authority to vest property that was not previously declared as evacuee property under the 1950 Act.
Issues: Whether an order under Section 11 of the Evacuee Interest (Separation) Act, 1951, can validly vest the entire property in the Custodian when only a partial share had been declared as evacuee property under the Administration of Evacuee Property Act, 1950, and no claims were filed.
Ratio Decidendi: The object of the 1951 Act is to separate evacuee interests from non-evacuee interests, not to seize property that is not evacuee property. Section 11 cannot expand the scope of evacuee property beyond what was determined under Section 7 of the 1950 Act. If only a fraction of the property is declared as evacuee property, the failure to file a claim cannot result in the vesting of the non-evacuee shares in the Custodian.
Result: Petition allowed.
Legal Category Hierarchy
Table of Contents
2. Petitioners challenge the vesting of non-evacuee shares in the Custodian; respondents contend vesting was mandatory under Section 11 due to failure to file claims. (Para 3 , 4 , 8 , 12 )
3. Section 11 cannot vest property not declared as evacuee property; it only applies to the evacuee interest or properties declared entirely as evacuee property. (Para 4 , 5 , 12 , 13 , 14 )
4. Section 11 of the Evacuee Interest (Separation) Act, 1951, cannot vest non-evacuee property in the Custodian if only a partial share was declared evacuee property. (Para 14 )
5. Order vesting the entire property in the Custodian set aside; separation of evacuee interest to be conducted according to law. (Para 16 )
6. Can Section 11 of the Evacuee Interest (Separation) Act, 1951, vest the entire property in the Custodian if only a partial share was declared evacuee property?
No. Section 11 cannot vest property that was not evacuee property. If an order under the 1950 Act declared only a specific share as evacuee property, Section 11 cannot be used to make the entire property vest in the Custodian. (Para 14 )
7. What is the purpose of notices issued under Section 6 of the Evacuee Interest (Separation) Act, 1951?
Notices under Section 6 are issued for the purpose of either determining the evacuee interest, such as the quantum of an undivided share, or separating the evacuee interest from the interests of other persons in a composite property. (Para 12 )
8. Does a failure to file a claim under the Evacuee Interest (Separation) Act, 1951, automatically vest non-evacuee shares in the Custodian?
No. While Section 11 provides for vesting in the absence of a claim, it only applies to the evacuee interest or properties where the whole property was declared evacuee property under the 1950 Act. (Para 14 )
Judgment
SARKAR, J. : One Abdul Hai died about 1943. He left certain immovable properties. He had three wives and children by each. One of his wives predeceased him. On his death the wives and children, surviving him, succeeded to these properties in certain shares. One of the surviving wives and a daughter died subsequently.
2. In appears that the remaining wife of Abdul Hai and his six children by her, went to Pakistan but the time when they did so does not appear. It is not however disputed that they had become evacuees and their shares in the properties could be properly declared evacuee property. A notice under S. 7 of the Administration of Evacuee Property Act, 1950, was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties, evacuee property. Proceedings were taken pursuant to the notice and on August14, 1952, an order was made declaring the migrants evacuees and a 4/7th share in certain properties, evacuee property as belonging to them. Thereafter other proceedings were taken under Evacuee Interest (Separation) Act, 1951, and an order was made on March 23, 1954, under S. 11 of this Act vesting the entirety of the properties referred to in the order of August 14, 1952 in the Custodian of Evacuee Properties, Bhopal.
3. This petition under Art. 32 of the Constitution challenges the validity of the orders of August 14, 1952, and March 23, 1954, as violating the petitioners fundamental right to hold property, to wit, their shares in the properties covered by the orders. It is presented by the surviving children of abdul Hai by his two deceased wives, excepting Abdul Aziz. Abdul Aziz however has been made a respondent to the petition but is not opposing it. It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the custodian in their entirety. The petition is opposed by the other respondents, namely, the Government of India and various officers concerned with the Acts, and it will be convenient to describe them alone as the respondents.
4. The first question raised is as to the validity of the order dated August 14, 1952, made under the Act of 1950. It is said that order is a nullity as the notice under S. 7 of this Act on which it was based, was bad for the reason that it was issued to Abdul Aziz who was, admittedly, not an evacuee. It seems to us that it is unnecessary to decide this question for it is not a matter with which the petitioners are in any way concerned. The proceedings under that Act did not purport to affect their interest in the properties and they cannot, therefore, challenge the order made under it. Further, as we have earlier said, it is not in dispute that the shares of the surviving wife of Abdul Hai and her children in the properties could properly be declared evacuee property under the Act since they had migrated to Pakistan. The order of August 14, 1952 only declared what purported to be their shares, to be evacuee property. By such a declaration no right of the petitioners is affected.
5. The second question raised concerns the order of March 23, 1954, made under the Act of 1951. This order vests the entirety of certain properties left by Abdul Hai including the petitioners shares in them, as evaucee property and, therefore, clearly affects the petitioners. We think that the petitioners grievance against this order is of substance and the order as it stands cannot be sustained.
6. This order was made under S. 11 of the Act of 1951. This Act was passed "to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested": see the preamble to the Act. It creates an officer called the "Competent Officer for effecting such separation. The disputed order was made by such an officer. Section 2(d) defines "composite property", which, so far as is material, is in t
