Refund of sale consideration.

Natarajan, J.-These appeals arise out of Writ Petitions Nos. 1259 of 1971 and 1260 of 1971 respectively, wherein the petitioner-appellant sought writs, one of certiorari to quash the orders of the first respondent relating to the transfer of certain cash balances belonging to an evacuee by name Abdul Gani Jan Mohamed and the notification of the second respondent in connection there-with and the other, a writ of mandamus to direct the first respondent to recall the moneys of the said evacuee and the sale proceeds of his property from the second respondent and return a sum of Rs. 2,40,000 with interest thereon, Ramaprasada Rao, J., declined to grant either of the writs, though he held that the petitioner was entitled to the money claimed by her from out of funds, if any, possessed by the Custodian and her right to secure a refund still survived.

2. This unfortunate case has a long history, but most of the facts are not in controversy. On 29th April, 1949, the appellant, a permanent citizen, of India, purchased an item of property, to wit Gani Market situate at No. 20, Godown Street, Madras-1, for a sum of Rs. 2,40,000. Admittedly, the property belonged to one Abdul Gani Jan Mohamed who had left for Pakistan soon, after partition and the sale transaction was negotiated through his power of attorney agent. Some delay was encountered in the registration of the sale deed in connection with the production of in-come-tax clearance certificate of the vendor. But, ultimately, the sale deed was registered on 11th August, 1949. Ordinance XII of 1949 was promulgated on 13th June, 1949 and it was extended to Madras on 23rd August, 1949. Ordinance XII of 1949 was repealed by Ordinance XXVII of 1949 which, in turn, was repealed by the Administration of Evacuee Property Act (Central Act XXXI of 1950). As may be seen from the facts above, the sale deed was registered even before Ordinance XII of 1949 was extended to Madras. Notwithstanding this feature, the sale required confirmation by the Custodian of Evacuee Property under section 40, as Act XXXI of 1950 had retrospective effect. An application by the appellant to the Assistant Custodian for confirmation was rejected and further agitations to the appellate and revisional authorities were equally unsuccessful. Lastly, the appellant resorted to the Supreme Court in appeal, but in Rabia Bai v. C. G. of E. Property1, the Supreme Court declined to interfere, stating that want of good faith in the vendor was, by itself, sufficient to refuse confirmation of sale.

3. Even during the pendency of her appeal before the Supreme Court, the appellant, by way of abundant caution, had recourse to rule 22 of the Administration of Evacuee Property (Central) Rules, 1950 (hereinafter referred to the Rules) for legistration of her claim for the return of the sale consideration of Rs. 2,40,000 and the claim was registered by the Assistant Custodian on 1st October, 1954. After the dismissal of the appeal by the Supreme Court, the appellant reiterated her claim for refund, but was sent a reply dated 1st August, 1966 that rule 22 of the Rules had been deleted by Act XCI of 1956 and consequently, no claim by a third party was sustainable.

4. The appellant then filed Writ Petition No. 1901 of 1968 before this Court praying for a direction to the respondents to return to her the sale amount together with interest. During the pendency of the writ petition, the appellant, placing reliance on Bhanu Pratap v. Assistant Custodian, E.P.1, made attempts before the respondents to have her claim considered under section 10 (1) read with Sections 10 (2) and 10 (2) (n) of Act XXXI of 1950 and rule 22 of the Rules. But they were all of no avail. Finding that the respondents were projecting a new plea to refuse refund to her, viz., that on account of the proceedings under Act XLIV of 1954, the first respondent was not possessed of funds from out of which he could make the refund, the appellant felt that the ground of attack in her wri

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