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PETITIONER:

EBRAHIM ABOOBAKER AND ANOTHER

Vs.

RESPONDENT:

TEKCHAND DOLWANIEBRAHIM ABOOBAKER AND ANOTHERV.CUSTODIAN-GEN

DATE OF JUDGMENT:

10/04/1953

BENCH:

HASAN, GHULAM

BENCH:

HASAN, GHULAM

SASTRI, M. PATANJALI (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 298 1953 SCR 691

CITATOR INFO :

RF 1961 SC1391 (14)

E 1965 SC 951 (10)

R 1967 SC 106 (4)

RF 1974 SC2325 (7)

ACT:

Administration of Evacuee Property Act (XXXI of 1950), ss.

2(d) and (f), 7-Proceedings for declaring a person an

evacuee and his properties evacuee properties-Death of

person pending proceedings-Abatement of Proceedings-

Continuation of proceedings against successors-Legality.

HEADNOTE:

Where a Mohammedan against whom proceedings are commenced

under the Administration of Evacuee Property Act, 1950, for

declaring him an evacuee and his properties evacuee

properties dies during the pendency of the proceedings he

cannot be declared an evacuee after his death, and his

properties which on his death vest in his heirs under the

Mohammedan law -cannot be declared evacuee properties.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 65 of 1953.

Appeal by special leave granted by the Supreme Court on

13th March, 1953, from the Judgment and Order dated the 30th

July, 1951,. of the Custodian General of Evacuee Property in

No. 31-A/Judi./50.

Petition No. 247 of 1952, a petition under Article 32 of

the Constitution for enforcement of fundamental rights, and

Petition for Special Leave to Appeal No. 106 of 1952 were

also beard along with Civil Appeal No. 66 of 1953.

692

K.T. Desai for the appellants and petitioners.

C.K. Daphtary, Solicitor-General for India (Porus A.Mehta

with him) for the respondent in Petition No. 247.

1953. April 10, The Judgment of the Court was

delivered by

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GHULAM HASAN J.-In order to understand and appreciate the

point arising for consideration in this case, it will be

necessary to set out a few preliminary facts :-

One Aboobaker Abdul Rehman, a resident of Bombay, received

on December 16, 1949, from the Additional Custodian, Bombay,

a notice under section 7 of Ordinance No. XXVII of 1949

calling upon him to show cause why his interest in certain

specific property should not be declared to be evacuee

property. A further notice issued on January 11, 1950,

required him to show cause why he should not be declared an

evacuee and all his properties declared to be evacuee

properties. On February 8, 1950, the Additional Custodian

decided that Aboobaker was not an evacuee, but at the same

time issued a fresh notice to him under section 19,

requiring him to show cause why he should not be declared an

"intending evacuee" and on the following day, February 9, he

declared Aboobaker as an "intending evacuee" upon the same

evidence. Aboobaker does, not appear to have contested this

order, but one Tek Chand Dolwani, first informant, carried

the matter in appeal to the Custodian General, praying that

Aboobaker be declared an evacuee and that the Imperial

Cinema, one of his properties, be allotted to him.

The Ordinance expired on October 18, 1949, and was

replaced by Act XXXI of 1950 (The Administration of Evacuee

Property Act) which came into operation on April 17, 1950.

It is not denied that although the Ordinance was repealed by

section 58, the proceedings taken in the exercise of any

powers conferred by the Ordinance shall be deemed to have

693

been taken in the exercise of the powers conferred by the

Act as if the Act were in force on the day the proceedings

were taken.

The appeal was heard on May 13, 1950, when the preliminary

objections in regard to the maintainability of the appeal

were argued and the appeal was adjourned to May 15 for

orders. On May 14, Aboobaker died leaving him surviving

three son and 9 daughter as his heirs under the Mohammedan

law, the sons taking 2/7th share each and the daughter

1/7th. On May 15, the Custodian General pronounced the

order which was, however,, dated May 13. By this order he

dismissed the preliminary objections and directed that

further enquiries should be made and that Aboobaker be

examined further on August 19, 1950. The hearing of the

appeal was adjourned from time to time and was fixed for

final disposal on March 7, 1951. Notice of this hearing was

issued to Ebrahim Aboobaker (son) and Hawabai Aboobaker

(daughter) who owned between themselves 3/7th share to

appear as the heirs and legal representatives of the

deceased. The petitioners, who are residents of India-their

two brothers are said to have migrated to Pakistan-filed on

February 26, 1951, Miscellaneous Petition No. 15 of 1951, in

the Punjab High Court for a writ of prohibition or for

directions or order directing the Custodian General to

forbear from proceeding with the hearing of the appeal or

making any order in the said appeal or from declaring the

properties left by the deceased as evacuee properties. The

petitioners contended inter alia that after the death of

Aboobaker the Custodian General had no jurisdiction to

proceed with the appeal. The petition was dismissed on May

24, 1951, the High Court holding that the Custodian -General

had jurisdiction. Leave to appeal was granted but the High

Court did not stay the hearing of the appeal by the

Custodian General which was fixed for July 3, 1951, and

directed that the Custodian General should not pass final

orders until July 23, 1951. On ,July 3, the Custodian

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General heard the appeal and

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694

on July 30 which was the date fixed for final orders he

declared Aboobaker to be &a evacuee and his properties to be

evacuee properties.

On August 6, 1951, the petitioners filed a petition

(Miscellaneous Petition No. 191 of 1951) under article 226

of the Constitution in the Bombay High Court against the

Custodian General and the Custodian, Bombay, for a writ of

certiorari for quashing and setting aside the said order and

for an order directing the Custodian General and the local

Custodian from acting upon the order or from taking

possession of the property which was situate in Bombay. The

petition was dismissed by Shah J. on October 4, 1951, on the

ground that the Bombay High Court had no jurisdiction

against the Custodian General and that the petition against

the local Custodian was premature. Appeal No. 88 of 1951

was filed on October 5, 1951 against the said order to the

Bombay High Court. An interim order was passed whereby the

petitioners undertook to keep accounts and not to dispose of

the properties while the Custodian General gave an

undertaking not to take possession pending the hearing of

the appeal. The appeal came up for hearing on November 20,

1951, before the Chief Justice and Gajendragadkar J. but it

was allowed to stand over with a view to await the decision

of this Court in appeal against the order of the Punjab High

Court as they did not wish to pass any order which might

conflict with the decision of this court. That appeal was

dismissed by this Court on May 26, 1952. See Ebrahim

Aboobaker and Another v. Custodian General of Evacuee

Property(1). This Court decided only the preliminary point

that Tek Chand Dolwani was entitled to prefer an appeal but

left the question about the jurisdiction of the Custodian

General to declare the properties of Aboobaker as evacuee

properties after his death open as that question was not

raised before it, the order of the 30th July, 1951, having

been passed after the filing of the appeal in the Supreme

Court and also because that question

(1) [1952] S.C.R. 696.

695

was pending determination in the appeal before the Bombay

High Court.

Appeal No. 88 of 1951 was dismissed on 1st/2nd July, 1952,

by the Chief Justice and Gajendragadkar J. on the

preliminary ground that they had no jurisdiction to quash

the order of the Custodian General passed on 30th July,1951.

They declined to pass any order against the local Custodian

observing that they could not do indirectly what could not

be done directly. A petition for leave to appeal was also

rejected by the High Court on the 14th July, 1952.

Petition No. 105 of 1952 is for special leave to appeal

against the order of the Custodian General dated July 30,

1951. Petition No. 106 of 1952 is against the order of the

Appellate Bench of the Bombay High Court dated 1st/2nd July,

1952. Petition No. 247 of 1952 is an independent petition

under article 32 of the Constitution, challenging the order

of the Custodian General dated July 30, 1951, as being in

violation of the fundamental rights of the petitioners and

being without jurisdiction.

Tek Chand Dolwani has filed a caveat against the Petition

No. 105 of 1952, while the petition under article 32 has

been heard upon notice to the Custodian General. In this

petition it is submitted that on a true construction of the

relevant provisions of the Ordinance and the Administration

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of Evacuee Property Act, the Custodian General had no

jurisdiction to hear the appeal after the death of

Aboobaker, or to make any order declaring the properties

left by him to be evacuee properties as the appeal abated on

his death and the properties vested in specific shares in

his heirs under the Mohammedan law. It was urged that as

the said properties did not fall within the definition of

evacuee property on the 30th July, 1951, or at any time

after the death of Aboobaker, the Custodian General had no

jurisdiction to declare the properties to be evacuee

properties. As a matter of fact, the deceased had no right,

title or interest in the said properties after his death;

nor were the said properties acquired by his heirs by any

mode of transfer

696

from the deceased. The order-of the 30th July, 1951, is

challenged as being void and inoperative as it violates the

fundamental rights of the petitioners under articles 19(1)

(f) and 31 (1) of the Constitution. The petitioners pray

for the issue of a writ of certiorari against the Custodian

General calling for the records of the case relating to the

above order and after looking into the same and going into

the question of the legality thereof quash and set aside the

same. They also ask for a writ of prohibition or mandamus

or directions or an order or a writ directing the Custodian

General, his servants and agents to for bear from acting

upon or enforcing the order dated the 30th July, 1951, or

from taking any steps or proceedings in enforcement of the

same. We heard the petitioners and the Solicitor-General on

the petition under article 32 and reserved orders till we

had beard Dolwani who was the caveator in the application

for special leave to Appeal. Dolwani,was served with a

notice personally and through his agent but neither put in

appearance. We granted the application for leave to appeal

against the order of the Custodian General and directed the

appeal to be posted for hearing along with the application

under article 32. Dolwani again did not appear and we'

proceed, therefore, to dispose of the appeal and the

petition by a common judgment.

The crucial question which arises- for consideration

before us is whether a person can be declared an evacuee

after his death and whether the properties which upon his

death vest in his heirs under the Mohammedan law can be

declared evacuee properties. Before we proceed to determine

that question we must notice the objection raised by the

Solicitor-General about the maintainability of the petition

under article 32 of the Constitution. He contends that

there is no question of any infraction of fundamental right

in the present case as the petitioners have not been

deprived of any property without the authority of law. The

Custodian General, it is said, undoubtedly purported to act

under an express statutory enactment. He might have

misapplied or

697

misappreciated the law or committed an error in the

assumption or exercise of jurisdiction, but that would not

bring the case within the purview of article 31 (1 read with

article 19(1) (f) of the Constitution. The point is

debatable and we do not desire to express any opinion upon

this point as we propose to examine the validity of the

order of the Custodian General dated July 30, 1951, in the

appeal (Civil Appeal No. 65 of 1953) which arose out of

Petition No. 105 of 1952 for special leave and not on the

petition under article 32.

Section 2 (d) and (f) define "evacuee" and "'evacuee

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property" respectively as follows:-

(d) "Evacuee " means any person-

(i) who, on account of the setting up of the Dominions of

India and Pakistan or on account of civil disturbances or

the fear of such disturbances, leaves or has ' on or after

the 1st day of March, 1947, left, any place in a State for

any place outside the territories now forming part of

India,or

(ii) who is resident in any place now forming part of

Pakistan and who for that reason is unable to occupy,

supervise or manage in person his property in any part of

the territories to which this Act extends, or whose property

in any part of the said territories has ceased to be

occupied, supervised or managed by any person or is being.

occupied, supervised or managed by an unauthorised person,

or

(iii) who has, after the 14th day of August, 1947,

obtained, otherwise than by way of purchase or exchange, any

right to, interest in or benefit from any property which is

treated as evacuee or abandoned property under any law

for the time being in force in Pakistan ;

(f) " Evacuee property " means any property in which an

evacuee has any right or interest (whether personally or as

a, trustee or as a beneficiary or in any other capacity),

and includes any property-

(1) which has been obtained by any person from an

evacuee after the 14th day of August, 1947, by

698

any mode of transfer, unless such transfer has been

confirmed by the Custodian.

The use of the present tense "leaves" or "has left" in the

definition of evacuee and " has " in the definition of

evacuee property is relied upon in support of the contention

that the object of the legislature in enacting these

provisions was to confine their operation to a living person

only. This line of argument may not per se be of any

compelling force but it receives support from the rest of

the provisions of the Act to which reference will be made

hereafter. It may, however, be pointed out here that clause

(f) (1) will not apply to the case of the petitioners for

they do not claim the property from the evacuee after the

14th day of August, 1947, by any mode of transfer but by

right of succession under the Mohammedan law. Succession to

property implies devolution by operation of law and cannot

appropriately be described as mode of transfer, as contended

for by the Solicitor-General, which obviously contemplates a

transfer inter vivos.

Section 7 refers to the notification of the evacuee

property. It lays down that "where the Custodian a of

opinion that any property is evacuee property within the

meaning of this Act, he may, after causing notice there of

to be given in such manner as may be prescribed to the

persons interested, and after holding such inquiry into' the

matter as the circumstances f the case permit, pass an order

declaring any such property to be evacuee property."

Rule 6, which is framed in exercise of the powers conferred

by section 56 of the Act, lays down the manner of inquiry

under section 7 and is as follows:"

`` (1) Where the Custodian is satisfied from information in

his possession or otherwise that any property or an interest

therein is prima facie evacuee property, he shall cause a

notice to be served, in Form No. 1, on the person claiming

title to such property or interest and on any other person

or persons whom he considers to be interested in the

property.

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699

(2) The notice shall,as far as practicable,mention the

grounds on which the property is sought to be declared

evacuee property and shall specify the provision of the Act

under which the person claiming any title to, or interest

in, such property is alleged to be an evacuee.

(3) The notice shall be served personally, but if that is

not practicable the service may be effected in any manner

provided in rule 28. (This rule refers to a mode of

substituted service).

(4) Where a notice has been duty served, and the party called

upon to show cause why the, property should not be declared

an evacuee property, fails to appear on the date fixed for

hearing, the Custodian may proceed to hear the matter ex-

parte and pass such order on the material before him as he

deems fit.

(5) Where such party appears and contests the notice he

shall forthwith file a written statement verified in the

same manner as a pleading under the Code of Civil Procedure,

1908, stating the reasons why he should not be deemed to be

an evacuee and why the property or his interest therein

should not be declared as evacuee property. Any person or

persons claiming to be interested in the enquiry or in the

property being declared as evacuee property, may file a

reply to such written statement. The Custodian shall then,

either on the same day or on any subsequent day to which the

hearing may be adjourned, proceed to hear the evidence, if

any, which the party appearing to show cause may produce and

also evidence which the party claiming to be interested as

mentioned above may adduce.

(6) After the whole evidence has been duly recorded in a

summary manner, the Custodian shall proceed to pronounce

his order. The order shall state the points for

determination, and the findings thereon with brief reasons."

Form No. 1 in Appendix A to the rules is as follows;-.

700

"WHEREAS there is credible information in possession of the

Custodian that you are an evacuee under clause (iii) of

section 2(d) of the Administration of Evacuee Property Act

on account of the grounds mentioned below:-

AND WHEREAS it is desirable to hear you in person ;

Now, therefore, you are hereby called upon to show cause

(with all material evidence on which you wish to rely) why

orders should not be passed declaring you an evacuee and all

your property as evacuee property under the provisions of

the said Act.

Deputy

Custodian."

Assistant

The next important section is section 8 the relevant portion

of which is as follows:-

"(1) Any property declared to be evacuee property under

section 7 shall be deemed to have vested in the Custodian

for the State,-

(a) in the case of the property of an evacuee as

defined in sub-clause (i) of clause (d) of section 2, from

the date on which he leaves or left any place in a State for

any place outside the territories now forming part of

India;''

If we substitute in section 8 the definition- of evacuee

property given in section 2, the meaning of section 8 will

become clearer. Any property declared to be :

(i) property in which an evacuee has any right or

interest,

(ii) property which has been obtained by any person from

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an evacuee after the 14th of August, 1947, by any, mode

of transfer unless that transfer has been confirmed by the

Custodian under section 7, shall be deemed to have vested in

the Custodian for the State :

(a) in the case of the property of an evacuee as

defined in sub-clause (i) of clause (d) of section 2,

701

from the date on which he leaves or left any place in a

State for any place outside the territories now forming part

of India."

The language of the rule read with the Form given above,

the notice issued to the person claiming interest in the

property which, according to the information in the

possession of the Custodian, is prima facie evacuee

property, the manner of its service and the mode of inquiry,

lead to the unmistakable conclusion that the object of

section 7 was to take proceedings against a living person

and to that extent the use of the present tense in the

definition of "evacuee" and "evacuee property" lends

corroboration to the contention raised that the proceedings

are intended to be applicable to living persons only. The

property which is declared to vest under (i) must be one in

which an evacuee has any right or interest but the deceased

has no right or interest after his death as his property

vests in his heirs. Nor does (ii) apply as petitioners have

not obtained the property from an evacuee by any mode of

transfer.

It is obvious that property must be declared to be evacuee

property under section 7 before it can vest under section 8.

There is no doubt that when the property does so vest the

vesting takes effect retrospectively, but where the man dies

before any such declaration is made, the doctrine of

relation-back cannot be invoked so as to affect the vesting

of such property in the legal heirs by operation of law. To

take a simple illustration, -if a person leaves India after

the 1st of March, 1947, the date given in section 2(d), and

dies in Pakistan before any notice is issued to him under

section 7 and before any inquiry is held in pursuance

thereof, it is obvious that the heirs, who have succeeded to

his property, cannot be deprived of it by conducting an

inquiry into the status of the deceased and investigating

his right or interest in property which has already devolved

on legal heirs. Section 8 in such a case will not come into

play and there can be no vesting of the property retros-

pectively before such property is declared as evacuee

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702

property within the meaning of section 2(f) of the Act.

Reading sections 7 and 8 together it appears that the

Custodian gets dominion over the property only after the

declaration is made. The declaration follows upon the

inquiry made under section 7, but until the proceeding is

taken under section 7, there can be no vesting of the

property and consequently no right in the Custodian 'to take

possession of it. Now if the alleged evacuee dies before

the declaration, has the Custodian any right to take

possession of the property? If he cannot take possession of

the property of a living person before the declaration, by

the same token he cannot take possession after the death of

the alleged evacuee when the property had passed into the

hands of the heirs, The enquiry under section 7 is a

condition precedent to the making of a declaration under

section 8 and the right of the Custodian to exercise

dominion over the property does not arise until the

declaration is made. There is no reason therefore why the

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heirs should be deprived of their property before the

Custodian obtains dominion.

The matter may be looked at from another point of view.

Section 141 of the Civil Procedure Code which makes the

procedure of the Court in regard to suits applicable in all

proceedings in any Court of civil jurisdiction does not

apply, as the Custodian is not a Court, though the

proceedings held by him are of a quasi-judicial nature.,

Section 45 of the Act applies the provisions of the Code

only in respect of enforcing the attendance of any person

and examining him on oath and compelling the discovery and

production of documents.

The provisions of the Code relating to substitution are,

therefore, inapplicable and there is no other provision in

the Act for the heirs to be substituted in place of the

deceased so as to continue proceedings against them. If the

proceedings cannot be continued against the heirs upon the

death of the alleged evacuee, it is logical to hold that

they cannot be

703

initiated against them. We hold, therefore, that the

proceedings must lapse upon the death of such person.

There is no provision in the Act that after a man is de

ad, his property can be declared evacuee property. If such

a provision had been made, then the vesting contemplated in

section 8 of the Act would have by its statutory force

displaced the vesting of the property under the Mohammedan

law in the heirs after death. It is a well recognised

proposition of law that the estate of a deceased Mohammedan

devolves on his heirs in specific shares at the moment of

his death, and the devolution is neither suspended by reason

of debts due from the deceased, nor is the distribution of

the shares inherited postponed till the payment of the

debts. It is also well understood that property vests in

the heirs under the Mohammedan law, unlike the Indian

Succession Act, without the intervention of an

administrator.

Section 40 of the Act imposes a restriction upon the right

of an evacuee to transfer property after the 14th August,

1947. This section prohibits transfers inter vivos but

cannot affect devolution by operation of law such as, on

death According to this section where the property of a

person is notified or declared to be an evacuee property, he

cannot transfer that property after the 14th of August,

1947, so as to confer any right on the transferee unless it

is confirmed by the Custodian. This shows that a transfer

between the 1st of March and the 14th of August, 1947, is

immune from the disability of being treated as evacuee

property notwithstanding the fact that the transferor

migrated after the 1st of March. If he made a bonafide

transfer of his entire property before the 14th of

August,,1947, then the property does not acquire the

character of evacuee property and such a transfer does not

require. confirmation by the Custodian, although all

transfers after that date are held suspect. If the transfer

between the two crucial dates is held valid, then on a

parity of reasoning the death of the transferor before the

declaration after the 14th of August should lead to the same

result.

704

It was contended before us that the Act aims at fixing the

nature of the property from a particular date and that the

proceedings taken are against the property and not against

the person. This argument is fallacious. There can be no

property, evacuee or otherwise, unless there is a person who

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owns that property. It is the property of the owner which

is declared to be evacuee property by reason of the fact

that he is subject to disability on certain grounds. The

definition of evacuee property in the Act begins by Baying

"property in which an-evacuee has any right or interest in

any capacity". The Act also shows that the property cannot

be notified as evacuee property unless and until the. person

claiming interest in it has been given notice.

Reference may also be made to section 43 as indicating

that the declaration under section 8 was intended to be made

during the lifetime of the alleged evacuee. This section

lays down "where in pursuance of the provisions of this Act

any property has vested in the Custodian neither the death

of the evacuee at any time thereafter nor the fact that the

evacuee who had a right or interest in that property had

ceased to be an evacuee at any material time shall affect

the vesting or render invalid anything done in consequence

thereof." The section shows that where the property has

vested in the Custodian, then the death of the evacuee or

his ceasing to be an evacuee afterwards shall not affect the

vesting or render invalid anything done in consequence

thereof. The section seems to suggest that the vesting must

take place in the lifetime of the alleged evacuee, otherwise

there was no point in providing that the vesting will not be

affected by the death of the evacuee or the evacuee ceasing

to be so.

The Solicitor-General contended that section 43 embodies

the principle "once an evacuee always an evacuee",, This

conclusion is hardly justified on the terms of section 43 as

explained above and it finds no support from the other

provisions of the Act. The object and the scheme of the Act

leave little doubt

705

that the Act was intended, as its title shows, to provide

for the administration of evacuee property and it is common

ground that this property has ultimately. to be used for

compensating the refugees who had lost their, property in

Pakistan. The Act contains elaborate provisions as to how

the administration is to be carried out.

Section 9 enables the Custodian to take possession of the

evacuee property vested in him under section 8 and section

10 which defines the powers of the Custodian generally

enables him to take such measures as he considers necessary

or expedient for the purposes of administering, preserving

and managing any evacuee property. These are mentioned in

detail in sub-section (2) of section 10, clause (j), which

authorises the Custodian to institute, defend or continue

any legal proceedings in any civil or revenue Court on

behalf of the evacuee.

,

Section 15 imposes an obligation on him to maintain a

separate account of the property of each evacuee.

Section 16 empowers the Custodian to restore the evacuee

property upon application to the evacuee or any person

claiming to be his heir provided he produces a certificate

from the Central Government that the evacuee property may be

restored to him. Upon restoration the Custodian shall stand

absolved of all responsibilities in respect of the property

so restored, but such restoration shall not prejudice the

rights, if any, in respect of the property which any other

person may be entitled to enforce against the person to whom

the property has been so restored.

By section 62 of the Act it is open to the Central

Government by notification in the Official Gazette, to

exempt any person or class of persons or any property or

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class of property from the operation of all or any of the

provisions of this Act. In pursuance of this section the

Central Government issued Notification No. S.R.O. 260, dated

the 3rd July, 1960, which was published in the Gazette of

India, Part II, section 3,

706

dated the 15th July, 1950, page 254, in which broadly three

categories of persons were exempted:-

(a) Any person who on or after the 1st day of March,

1947, migrated from India to Pakistan but had returned to

India before the 18th day of July, 1948, and had settled

therein ;

(b) Any person who has left or leaves for Pakistan on a

temporary visit taking with himself a "No objection to

return" certificate, and has returned, or returns, to India

under a valid permit issued under the Influx from Pakistan

(Control) Act, 1949, for permanent return to India; and

(c) Any person who has come from Pakistan to India

before the 18th day of October, 1949, under 'a valid permit

issued under the Influx from Pakistan (Control) Act, 1949,

for permanent resettlement in India.

These provisions far from suggesting that the person

declared an evacuee suffers a civil death and remains an

evacuee for all time show on the other hand that the person

may cease to be an evacuee under certain circumstances that

he is reinstated to his original position and his property

restored to him subject to certain conditions and without

prejudice to the rights if any in respect of the property

which any other person may be entitled to enforce against

him. These provisions also establish that the fact of a

property being evacuee property is not a permanent attribute

of such property and that it may cease to be so under given

conditions. The property does not suffer from any inherent

infirmity but becomes evacuee property because of the

disability attaching to the owner. Once that disability

ceases, the property is rid of that disability and becomes

liable to be restored to the owner.

Mr. Desai counsel for the petitioner referred in the

course of the arguments to section 93 of the Presidency

Towns Insolvency Act and section 17' of the Provincial

Insolvency Act. According to the former "if a debtor by or

against whom an insolvency petition has been presented dies,

the proceedings in the

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matter shall, unless the Court otherwise orders, be

continued as if he were alive". By the latter section

"if a debtor by or against whom an insolvency petition has

been presented dies, 'the proceedings in the matter shall,

unless the Court otherwise orders, be continued so far as

may be necessary for the realisation and distribution of the

property of the debtor". Though there is slight difference

in the language of these two sections, the principle

underlying the insolvency law seems to be that the death of

the insolvent during the pendency of the application for

insolvency does not cause the proceedings to abate but that

they must be continued so that his property could be

administered for the benefit of the creditors. There is no

such provision in, the Act before us. It follows therefore

that if the intention of the legislature had been to treat

the person proceeded against under section 7 as alive for

purposes of the proceedings even after his death, such a

provision would have been incorporated into the Act.

After giving our best consideration to the case we are of

opinion that the order of the 30th July, 1951, passed by the

Custodian General declaring Aboobaker Abdul Rehman deceased

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as an evacuee and the property left by him as evacuee

property cannot stand and must be set aside. We accordingly

allow Appeal No. 65 of 1953, arising out of Petition No. 105

of 1952 and hold that the Custodian General had no

jurisdiction to pass the order of the 30th July, 1951, and

set it aside. We make no order as to costs.

Petition No. 106 of 1952 is not pressed and no order need

be passed in respect thereto. In view of our order in

Appeal No. 65 of 1953, no orders are called for in Petition

No. 247 of 1952.

Appeal allowed.

Agent for the appellants and petitioners : Rajinder Narain.

Agent for the respondent in Petioion No. 247: G. H.

Rajadhyaksha.

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