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1960 Supreme(MP) 36
High Court Of Madhya Pradesh
V. R. Newaskar, J.
SAIRA BAI, ASGAR HUSSAIN - Appellant
Versus
S.S.JOSHI - Respondents
Misc. Civil Case 10 Of 1957
Decided On : 01/28/1960
M.A.Khan, S.L.Dubey
A notice issued under Section 7 of the Administration of Evacuee Property Act, 1950 must mention the specific property sought to be declared as evacuee property.
Headnote:
EVACUEE PROPERTY - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTION 7 - NOTICE - PROPERTY NOT MENTIONED IN NOTICE - DECLARATION AS EVACUEE PROPERTY - INVALIDITY - WILL - REGISTRATION - NOT REQUIRED - EFFECT.
Fact of the Case:
Mohammad Khan gifted certain properties to his son Asgar Hussain by a registered deed in 1935. Asgar Hussain died during the lifetime of Mohammad Khan. In 1946, Mohammad Khan executed another deed providing for maintenance of his second wife Hamidunnisa after his death from certain lands. Hamidunnisa migrated to Pakistan. After Mohammad Khan's death, the Assistant Custodian of Evacuee Property issued a notice under Section 7 of the Administration of Evacuee Property Act, 1950 to Hamidunnisa, declaring her as an evacuee and her property as evacuee property. Sairabai, the daughter-in-law of Mohammad Khan, filed a petition under Articles 226 and 227 of the Constitution of India, challenging the validity of the notice and the subsequent orders passed by the Assistant Custodian and the Custodian.
Finding of the Court:
The court held that the notice issued under Section 7 of the Administration of Evacuee Property Act, 1950 was invalid as it did not mention the specific property sought to be declared as evacuee property. The court also held that the will executed by Mohammad Khan in favor of Sairabai did not require registration and was valid. The court further held that the petitioners, being the granddaughters of Mohammad Khan, were entitled to be ranged as sharers with the widow of Mohammad Khan and had an interest in the property.
Issues: 1. Whether the notice issued under Section 7 of the Administration of Evacuee Property Act, 1950 was valid? 2. Whether the will executed by Mohammad Khan in favor of Sairabai required registration? 3. Whether the petitioners had an interest in the property?
Ratio Decidendi: 1. The court held that the notice issued under Section 7 of the Administration of Evacuee Property Act, 1950 was invalid as it did not mention the specific property sought to be declared as evacuee property. The court relied on the decision of the Allahabad High Court in Azizun Nisa v. Assistant Custodian, (S) AIR 1957 All 561, which held that a notice under Section 7 must give sufficient particulars of the property so as to make it possible for any person to identify it. 2. The court held that the will executed by Mohammad Khan in favor of Sairabai did not require registration. The court noted that wills are not compulsorily registrable and that the Custodian had erred in rejecting the will on the ground that it was not registered. 3. The court held that the petitioners, being the granddaughters of Mohammad Khan, were entitled to be ranged as sharers with the widow of Mohammad Khan and had an interest in the property. The court noted that the petitioners were entitled to inherit a share of the property under the general principles of Muhammadan Law.
Final Decision: The court quashed the orders of the Assistant Custodian and the Custodian declaring the property as evacuee property and directed the petitioners to be restored to possession of the property.
( 1 ) THIS is a petition under Articles 226 and 227 of the Constitution of India for the issue of a writ of certiorari against the Asstt. Custodian and Custodian of Evacuee Property, Indore. The circumstances leading to the petition are as follows: 1a. One Mohd. Khan s/o Karim Khan of Neemuch owned agricultural lands in four villages Chouth-Kheda, Raatdia, Jamunia and Kana-Kheda. He also owned a house No. 7 in Kotmohalla Neemuch. Besides this property he also had mortgagee rights with respect to certain lands in the village Khatria and he was in possession of them as a usufructuary mortgagee. Said Mohammad Khan had a son Asgar Hussain. Mohammad Khan by his deed dated 5-8-1935 effected 'hiba' (Gift) of most of his property including lands in the aforesaid villages and the house in Kotmoholla Neemuch in favour of his son Asgar Hussain. The hiba-nama thus made by him was registered the same day. Mobammad Khan provided by means of a deed dated 4-1-1946 that he would give half the income out of the land in which he had mortgagee rights and which was situated in Mouja Raatdia as also land bearing Khata No. 646/ 9 (1) of Mouja Chouthkheda to his second wife Hamidunnisa as long as he was alive and that subsequent to his death she would be entitled to realise income therefrom for her maintenance and on her death those lands would pass on to whosoever be her heir. This document too was registered. Subsequent to this deed Asgar Hussain met with his death due to drowning. Hamidunnisa the second wife of Mohammad Khan migrated to Pakistan. Consequently the Asst. Custodian of Evacuee Property, Neemuch started proceedings under Section 7 of the Administration of Evacuee Property Act and issued notice to Mohammad Khan why the property of Hamidunnisa be not declared as evacuee property.
( 2 ) MOHAMMAD Khan objected and contested the title of Hamidunnisa to the land covered by the deed of 1946.
( 3 ) THE Assistant Custodian Evacuee Property, Neemuch on being satisfied that the proprietary interest in any property had not vested in Hamidunnisa closed the case by his order dated 2-2-1952. The matter was however again taken in hand by the Asstt. Custodian on representation probably made by the department that Hamidunnisa had certain property which had been given to her as her dower debt (Mehr) and that she had interest in certain other property under the deed dated 4-1-1946 which had been duly registered. On perusal of the Kazi's register and the document dated 4-1-1946 the Assistant Custodian of Evacuee Property was satisfied that none of the properties in Mohammad Khan's possession had been given in Mehr by him and the deed dated 4-1-1946 conferred only right of maintenance upon her after Mohammad Khan's death. He, consequently, again confirmed the order dated 2-2-1953 on 29-4-1952. Subsequent to this Mohammad Khan is said to have cancelled the deed dated 4-1-1946 which he had executed in favour of bis wife and published a notice to this effect and later executed a will on 18-3-1953 by which he gave his house No. 7 and land adjoining it to his daughter-in-law Sairabai and on her death to her two daughters Hajara find Amina both sharing equally. Mohammad Khan died a few days after the last mentioned document. Sairabai thereupon got her name entered on house No. 7 in the Municipal register and paid Municipal tax for the Samvat years 2009 and 2010 on 7-71954 and 14-7-1954 respectively. However on 4-4-1955 the Assistant Custodian of Evacuee Property again issued a notice in the name of Chhotibai (Hamidunnisa) wife of Mohammad Khan why she should not be declared as evacuee and the house No. 7 as Evacuee Property. Service upon Hamidunnisa, who had migrated to Pakistan was effected by substituted service. The date fixed for hearing was 3-6-1955. Sairabai on coming to know of this fact due to pasting of the notice on the house, attended the office of theAssistant Custodian and objected to these proceedings by her application dated 8-6-
