JUDGMENT

S.N. Dwivedi, J. - Syed Mohammad Ahmad Rizvi challenges the orders of the Assistant Custodian (judicial), Lucknow, the Additional Custodian, Evacuee Property, U.P., Lucknow, and the Deputy Custodian General, Evacuee Property, Mussoorie, and prays for the issue of a writ in the nature of certiorari to quash those orders.

2. The petitioner is one of the sons of the late Manzoor Ali. Akhtari Bai alias Akhtari Begam was a widow of the late Manzoor Ali. After the death of Manzoor Ali, on April 25, 1946 the petitioner and the other sons of the said Manzoor Ali executed a registered deed with respect to the immoveable and immoveable properties left by the said Manzoor Ali. Akhtari Bai alias Akhtari Begam was a party to the deed. One of the clauses of the deed deals with the dower debt due to Akhtari Bai, and another clause with the provision for maintenance allowance to her. Those clauses also specify the mode in which she could recover the dower debt and arrears of maintenance in the event of default in payment by the sons of Manzoor Ali. She migrated to Pakistan. And then there arose a question before the respondents whether those clauses created a mortgage or a charge in favour of Akhtari Bai. The petitioner and his brothers claimed that the clauses created a charge. The Assistant Custodian (judicial) and the Additional Custodian held that the clauses created a mortgage' in favour of Akhtari Bai. In revision the Deputy Custodian General held that the clause dealing with the payment of dower debt created a mortgage and that the clause providing for the maintenance allowance created a charge. Accordingly I am now concerned only with the former clause. The main argument of the petitioner before me is that clause also creates a charge in favour of Akhtari Bai. But before I take up this point, it is necessary to dispose of two other arguments advanced on behalf of the petitioner.

3. The first argument is that the notice under Section 7-A of the Administration of Evacuee Property Act was issued on April 25, 1955 after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954. The argument cannot succeed for two reasons. Firstly, it was not raised before the respondents. It involves a question of fact. As it was not raised before the respondents, I am not inclined to permit the petitioner to advance it for the first time in the writ proceeding. Secondly, it is not proved on the record before me that the notice was issued after six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954. There is no clear allegation in the petitioner's affidavit that no notice was issued within the prescribed period. All that is said is that he,was not served with any notice prior to the notice dated April 25, 1955. A counter affidavit has been filed on behalf of the respondents by B. B. Verma, Managing Officer II, Evacuee Property, Allahabad. He has alleged in the counter-affidavit that a notice was issued on March 25, 1955 and that the record of the case showed that it was served on April 6, 1955. The original notice has been annexed to the petition. It purports to be dated 25-4-55, and the petitioner banks on this date. At the top of the notice there is mentioned in the i handwriting of the issuing clerk the office number of the notice along with the date 25-3-55. It would suggest that the notice was really issued on March 25, 1955 and not on April 25, 1955. The notice was issued from the office of the Assistant Custodians, Lucknow. The notice required the petitioner and Akhtari Bai to appear before the Assistant Custodian on April 26, s 1955 and to show cause why the property mentioned on the back of the notice I should not be declared to be evacuee property. The counter-affidavit mentions that the notice was sent to the Tahsildar, Malihabad (district Lucknow) for service. It could hardly be expected that the notice issued on April 25 and sent to the Tahs