JUDGMENT

R.K. Chowdhary, J. - This is a second appeal by the plaintiffs Choudhri Amir Ullah and Hafiz Abdul Rahman. They sued only the Central Government (Indian Dominion) through the Secretary Indian Posts and Telegraphs Department. Subsequently, they impleaded as defendant firm Haji Peer Mohammad Shamshuddin of Sadar Bazar New Delhi as then carrying on business in Pakistan through the Manager of the firm.

2. On 11-6-1947 currency notes of Rs. 1,0001- were remitted in an insured cover from the Sadar Bazar Post Office Delhi to the plaintiffs at Shahjahanpur. The insured cover was not delivered to the addressees. Thereupon the plaintiffs filed the present suit in the court of the Munsif of Shahjahanpur for recovery of the amount from the Central Government. Under Sec. 33 of the Indian Post Offices Act (VI of 1898) the liability for compensation in respect of postal articles insured is to the sender thereon. The plaintiffs alleged in the plaint that the said firm was only the ostensible sender, the real senders being the plaintiffs themselves.

3. Against the Central Government the trial court decreed the suit holding that the real senders were the plaintiffs. The suit had proceeded ex parte against the defendant firm in Pakistan. On an appeal by the Central Government the learned Civil Judge of Shahjahanpur dismissed the suit reversing the said finding of the trial court. The lower appellate court was of the view that the ostensible sender was the real one. An alternative plea taken on behalf of the plaintiffs, namely, that they were in any case entitled to a decree as beneficiaries under a trust, was also not accepted by the lower appellate court. The plaintiffs have now come up in second appeal to this Court.

4. A preliminary objection was raised by the learned counsel for the defendant-respondent, the Central Government, based on Sec. 50 of the Administration of Evacuee Property Act, 1950. That section provides:

"50. (1) If in any suit it appears to the civil or revenue court that a question relating to the property of an evacuee or an intending evacuee is involved, the court shall not proceed to determine that question until after notice has been given to the Custodian.

(2) A Court may, at any stage of a suit or proceeding, either on its own motion or an application made in this behalf by the Custodian, make an order that the Custodian shall be added as a party to the suit or proceeding, if the court is satisfied that such addition is necessary or proper for the satisfactory determination of the suit or proceeding."

5. It was submitted by the learned counsel that, no notice to the Custodian having been given in this case, and the Custodian not having been impleaded as a party, the suit should be dismissed in view of the above provisions. It is noteworthy, to begin with, that the above section is no bar to the maintainability of a suit: it only says that the Court shall not proceed to determine the question relating to the property of an evacuee until notice had been given to the Custodian. Furthermore, in order that the defendant-respondent could have the benefit of this section it was necessary that it be shown that the question involved in the case related to the property of an evacuee. It was nobody's case that the property in question was evacuee property. This plea was not taken by the defendant-respondent in any of the two courts below. The applicability of the aforesaid section would no doubt depend primarily on the allegations made in the plaint; but, as just noticed, no such allegation finds mention in the plaint. For these reasons the preliminary objection in question would appear to have no force.

Coming to the merits of the appeal, the plaintiffs cannot of course succeed on foot of the provisions of Sec. 33 of the Indian Post Offices Act in view of the finding of fact of the lower appellate court that the plaintiffs were not the senders.

6. The learned counsel for the plaintiffs appellants sought to base their claim