The power of review conferred by Section 26(2) of the Administration of Evacuee Property Act is not unrestricted and can only be exercised in the presence of fresh material or a mistake apparent on the record.

1. In these two applications, which were heard together, a common question of law arises, namely, whether the Custodian, Mr. R. P. Singh, acted in excess of his jurisdiction in setting aside the order of his predecessor, Mr. S. N. Ray, dated 29-9-1950.

2. On 12-8-1949, the petitioners purchased a house, namely, holding No. 98, of Ward No. 3 of Gaya town, from Mt. Bibi Akbari Khatoon and her sister Mt. Asghari Khatoon. The Sale deed was executed on behalf of Bibi Asghari Khatoon by Maulivi Abdul Rashid, her father-in-law, who had a general power of attorney on her behalf. The power of attorney was executed by Bibi Asghari Khatoon on 7-7-1949.

It is material to state that on 21-6-1949, the Bihar Administration of Evacuee Property Ordinance, 1949, came into force. Sec.25 of the Ordinance imposed certain restrictions on the right of transfer of evacuee properties made on behalf of evacuees after 31-3-1947, and Sec.26 of the Ordinance granted power to the Provincial Government to prohibit transfer of immovable properties or any part thereof in certain specified areas. On 24-8-1949, a notification was published by the Provincial Government, under Sec.26 of the Ordinance, prohibiting transfer of any immovable property belonging to a Muslim and situated in the province but not in the rural areas of Chota Nagpur for a period of three months except with the previous approval in writing of the Collector of the district in which the property or the greater part thereof was situated. On 21-9-1949, the petitioners applied, under Sec.25 of the Ordinance, to the Custodian for confirmation of the sale of the house so far as the share of Bibi Asghari Khatoon was concerned. The application was rejected by the Deputy Custodian, Mr. Aikat, who was under the wrong impression that the application was for permission to sell the interest of Bibi Asghari Khatoon. On 29-9-1949, Mt. Bibi Asghari Khatoon was declared to be an evacuee. A fresh application was made on 7-10-1949, by the petitioners for confirmation of the sale. Mr. S. P. Singh who was the Deputy Custodian at the time refused confirmation of the sale on the ground that the sale deed was executed after Bibi Asghari Khatoon had gone over to Pakistan. Mr. S. P. Singh also considered that, the earlier petition having been rejected by the Deputy Custodian, a second petition was not maintainable on the same point. An appeal was taken on behalf of the petitioners to the Custodian who by his order dated 29-9-1950, set aside the order of Mr. S. P. Singh and confirmed the sale so far as the eight annas share of Bibi Asghari Khatoon was concerned.

In course of his order, the Custodian, Mr. S. N. Ray, stated:

"The principles for consideration in the matter of confirming a transaction are whether the transaction is bona fide and is for valuable consideration. In the present case Rs. 25000.00 in cash which is certainly a valuable consideration was paid as the consideration money in presence of " the Sub-Registrar before whom the sale deed was executed and registered. The appellant has also produced pass books which support the fact of payment. Vendors and vendees are admittedly not related. Mr. B. B. Singh, Additional District Magistrate, Gaya who was also acting as District Magistrate for some time made a personal enquiry into the matter and by his order dated 24-10-1949 he held this transaction as bona fide. In view of the above facts I am of opinion that the transaction in question was bona fide, and was for valuable consideration."

3. On 10-12-1952, after lapse of. more than two years, Mr. R. P. Singh, who had become Custodian, ssued a, notice to one of the petitioners to show cause why the order of his predecessor, Mr. S. N. Ray, should not be reviewed, and the order of confirmation of the sale should not be set aside. It is important to state that no notice was given to the petitioner Bibi Nazma Khatoon. The other petitioner appeared before the Custodian on 18-12-1952, and, after hearing his