Ebrahim Aboobaker and Another v. Tekchand Dolwani
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 65 of 1953
Decision Date: 10 April 1953
Coram: Ghulam Hasan, M. Patanjali Sastri, B.K. Mukherjea, Natwarlal H. Bhagwati
In this case, the Supreme Court of India considered an appeal filed by Ebrahim Aboobaker and Another against Tekchand Dolwani. The judgment was delivered on 10 April 1953 by a bench composed of Ghulam Hasan, M. Patanjali Sastri, B. K. Mukherjea and Natwarlal H. Bhagwati. The petitioner’s application was recorded as Civil Appeal No. 65 of 1953, while a related petition under Article 32 of the Constitution, numbered 247 of 1952, and a special leave petition numbered 106 of 1952 were also disposed of together with Civil Appeal No. 66 of 1953. The case was cited as 1953 AIR 298 and 1953 SCR 691, and it has been referred to in subsequent reports such as RF 1961 SC 1391, E 1965 SC 951, R 1967 SC 106, and RF 1974 SC 2325. The substantive provision under consideration was the Administration of Evacuee Property Act (XXXI of 1950), specifically sections 2(d) and 2(f) and section 7, which deal with proceedings for declaring a person an evacuee and his property evacuee property, the effect of the death of a person while such proceedings are pending, the abatement of proceedings, and the continuation of proceedings against successors. The headnote of the judgment states that where a Muslim individual is the subject of proceedings under the Administration of Evacuee Property Act, 1950 for declaration as an evacuee and for his properties to be treated as evacuee property, his death during the pendency of the proceedings prevents him from being declared an evacuee after death, and his property, which passes to his heirs under Muslim law, cannot thereafter be declared evacuee property. The procedural history began with a special leave being granted by the Supreme Court on 13 March 1953 from an order dated 30 July 1951 issued by the Custodian General of Evacuee Property in case No. 31-A/Judi./50. The petition under Article 32 sought enforcement of fundamental rights, while the special leave petition and the two civil appeals were heard together. Counsel for the appellants and petitioners was K. T. Desai, and the Solicitor-General of India, C. K. Daphtary, assisted by P. A. Mehta, represented the respondent in petition No. 247. To understand the point of law, the Court set out a series of preliminary facts. The first fact involved a man named Aboobaker Abdul Rehman, a resident of Bombay. On 16 December 1949, the Additional Custodian of Bombay served him with a notice issued under section 7 of Ordinance No. XXVII of 1949, directing him to show cause why his interest in certain identified property should not be declared evacuee property. A second notice followed on 11 January 1950, this time requiring him to show cause why he himself should not be declared an evacuee and why all his properties should not be treated as evacuee properties. On 8 February 1950 the Additional Custodian decided that Aboobaker was not an evacuee; nevertheless, on the same day a fresh notice was issued under section 19, demanding that he show cause why he should not be classified as an “intending evacuee.” The very next day, 9 February 1950, the Additional Custodian, relying on the same evidence, declared Aboobaker an “intending evacuee.” The record indicates that Aboobaker did not contest this declaration.
Tek Chand Dolwani, who was the first informant, did not challenge the order that had been made against Aboobaker; instead, he appealed to the Custodian General. In his appeal he prayed that Aboobaker be declared an evacuee and that the Imperial Cinema, which was one of Aboobaker’s properties, be allotted to him. The Ordinance that had governed such matters expired on 18 October 1949 and was replaced by Act XXXI of 1950, known as the Administration of Evacuee Property Act, which came into force on 17 April 1950. Although the Ordinance had been repealed by section 58, it was agreed that any proceedings taken under the powers of the Ordinance would be treated as if they had been taken under the powers of the new Act, as if the Act had been in force on the date of those proceedings. The appeal was first heard on 13 May 1950, when the parties argued preliminary objections concerning the maintainability of the appeal. The matter was then adjourned to 15 May for the Court to give orders. On 14 May 1950 Aboobaker died, leaving three surviving sons and nine daughters who were his heirs under Muslim law; each son was entitled to a two-sevenths share and each daughter to a one-sevenths share. On the following day, 15 May, the Custodian General issued an order—although the order was dated 13 May—that dismissed the preliminary objections and directed that further inquiries be conducted, ordering that Aboobaker be examined again on 19 August 1950. The hearing of the appeal was subsequently postponed on several occasions and a date for final disposal was fixed for 7 March 1951. Notices of this hearing were sent to Ebrahim Aboobaker, a son, and Hawabai Aboobaker, a daughter, who together owned three-sevenths of the estate and were to appear as the heirs and legal representatives of the deceased. The petitioners, who were residents of India and whose two brothers were said to have migrated to Pakistan, filed a miscellaneous petition (No. 15 of 1951) on 26 February 1951 in the Punjab High Court. They sought a writ of prohibition, or alternatively directions, ordering the Custodian General to refrain from proceeding with the appeal, from making any order in the appeal, and from declaring the deceased’s properties to be evacuee properties. The petitioners argued, inter alia, that after Aboobaker’s death the Custodian General no longer had jurisdiction to continue the appeal. The High Court dismissed the petition on 24 May 1951, holding that the Custodian General retained jurisdiction. Although leave to appeal was granted, the High Court did not stay the hearing, which had been scheduled for 3 July 1951, and it directed that the Custodian General should not pass any final orders before 23 July 1951.
On 3 July 1951 the Custodian General heard the appeal, and on 30 July 1951— the date fixed for the final orders— he declared Aboobaker to be an evacuee and his properties to be evacuee properties. Subsequently, on 6 August 1951 the petitioners filed another petition (Miscellaneous Petition No. 191 of 1951) under article 226 of the Constitution.
The petitioners approached the Bombay High Court seeking a writ of certiorari against the Custodian General and the Bombay Custodian. They asked that the order declaring the deceased’s property as evacuee property be set aside and that both the Custodian General and the local Custodian be restrained from acting on that order or from taking possession of the property situated in Bombay.
Shah J. dismissed the petition on 4 October 1951, holding that the High Court lacked jurisdiction to entertain a writ against the Custodian General and that the petition against the local Custodian was premature. The petitioners promptly filed Appeal No. 88 of 1951 on 5 October 1951 to challenge that dismissal. An interim order was subsequently made, under which the petitioners undertook to keep proper accounts and to refrain from disposing of the properties, while the Custodian General gave an undertaking not to take possession pending the hearing of the appeal.
The appeal was listed for hearing on 20 November 1951 before the Chief Justice and Justice Gajendragadkar. The Court, however, stayed further consideration in order to await the decision of this Court in the pending appeal against the Punjab High Court order, expressing a desire not to issue any order that might conflict with a decision of the Supreme Court. That appeal before this Court was dismissed on 26 May 1952, as recorded in Ebrahim Aboobaker and Another v. Custodian General of Evacuee Property (1). The Supreme Court limited its decision to the preliminary point that Tek Chand Dolwani was entitled to prefer an appeal, leaving untouched the question of whether the Custodian General had jurisdiction to declare the deceased’s property evacuee after his death. The Supreme Court did not address that issue because the order of 30 July 1951 had been passed after the filing of the Supreme Court appeal and because the question of jurisdiction remained pending before the Bombay High Court.
On 1 or 2 July 1952, the Chief Justice and Justice Gajendragadkar dismissed Appeal No. 88 of 1951 on the preliminary ground that the High Court possessed no jurisdiction to quash the Custodian General’s order dated 30 July 1951. The Court also refrained from passing any order against the local Custodian, observing that it could not achieve indirectly what it could not do directly. A petition for leave to appeal was rejected by the High Court on 14 July 1952.
The proceeding record shows three distinct petitions filed thereafter. Petition No. 105 of 1952 sought special leave to appeal against the Custodian General’s order of 30 July 1951; Petition No. 106 of 1952 challenged the Appellate Bench’s order of 1 or 2 July 1952; and Petition No. 247 of 1952 was an independent article-32 petition contesting the same 30 July 1951 order as violative of the petitioners’ fundamental rights and lacking jurisdiction. Tek Chand Dolwani entered a caveat against Petition No. 105 of 1952, thereby protecting his interest in that proceeding.
The petition filed under article 32 of the Constitution was heard after notice was issued to the Custodian General. In that petition the petitioners contended that, when the provisions of the relevant Ordinance and the Administration of Evacuee Property Act are properly interpreted, the Custodian General possessed no authority to entertain the appeal after the death of Aboobaker, nor could he issue any order declaring the property left by the deceased to be evacuee property. The petitioners argued that the appeal ceased to exist upon Aboobaker’s death and that, according to Mohammedan law, the property vested in specific shares in his heirs. Consequently, they maintained that the properties in question never fell within the definition of evacuee property on 30 July 1951, nor at any time after Aboobaker’s death, and therefore the Custodian General lacked jurisdiction to label them as evacuee property. The petition further asserted that the deceased held no right, title or interest in the said properties after his death, and that his heirs had not acquired the properties by any mode of transfer from him. The order dated 30 July 1951 was therefore challenged as void and inoperative on the ground that it infringed the petitioners’ fundamental rights under articles 19(1)(f) and 31(1) of the Constitution. The petitioners prayed for a writ of certiorari directing the Custodian General to produce the records relating to the order, for the Court to examine the legality of that order, and to set it aside. In addition, they sought a writ of prohibition, mandamus or any other appropriate order directing the Custodian General, his servants and agents to refrain from acting upon or enforcing the order of 30 July 1951, and to desist from taking any steps or proceedings to enforce it.
The Court heard arguments from the petitioners and from the Solicitor-General on the article 32 petition and reserved its orders until it could hear the caveator, Dolwani, who had filed a caveat in the application for special leave to appeal. Dolwani was served with a notice both personally and through his agent, but he failed to appear. The Court subsequently granted the application for leave to appeal against the order of the Custodian General and ordered that the appeal be listed for hearing together with the article 32 petition. Dolwani again failed to appear, and the Court therefore proceeded to dispose of both the appeal and the petition in a single judgment. The central issue that the Court identified for consideration was whether a person could be declared an evacuee after his death and whether property that, upon his death, vested in his heirs under Mohammedan law could be designated as evacuee property. Before addressing that substantive question, the Court noted the objection raised by the Solicitor-General regarding the maintainability of the article 32 petition. The Solicitor-General contended that no fundamental right had been infringed because the petitioners had not been deprived of any property without legal authority.
The Court observed that the petitioners had not been dispossessed of any property without lawful authority. It was pointed out that the Custodian General had unquestionably claimed to act pursuant to a specific statutory enactment. Even if the Custodian had misinterpreted the law, misapplied it, or erred in assuming or exercising jurisdiction, such a mistake did not bring the matter within the ambit of article 31(1) read with article 19(1)(f) of the Constitution. The Court noted that this question was debatable, but it refrained from expressing any view on it. Instead, the Court stated that its purpose was to examine the validity of the order dated 30 July 1951 issued by the Custodian General, an order that was the subject of Civil Appeal No. 65 of 1953, which had arisen from Petition No. 105 of 1952 seeking special leave. The Court clarified that the present examination would be confined to that appeal and would not extend to the petition filed under article 32.
Section 2 of the Act defines the terms “evacuee’’ and “evacuee property’’ respectively. Sub-section (d) explains that an “evacuee’’ means any person who, because of the creation of the Dominions of India and Pakistan or because of civil disturbances or the fear of such disturbances, (i) leaves or has left, on or after 1 March 1947, any place in a State for any place outside the territories now forming part of India; or (ii) is resident in any place now forming part of Pakistan and, for that reason, is unable to occupy, supervise or manage in person his property in any part of the territories to which the Act extends, or whose property in those 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) after 14 August 1947 obtains, other than by purchase or exchange, any right, interest or benefit in any property that is treated as evacuee or abandoned property under any law then in force in Pakistan. Sub-section (f) defines “evacuee property’’ as any property in which an evacuee has any right or interest, whether personally, as a trustee, as a beneficiary or in any other capacity, and it includes any property that (1) has been obtained by any person from an evacuee after 14 August 1947 by any mode of transfer, unless such transfer has been confirmed by the Custodian. The Court noted that the use of the present tense words “leaves’’ or “has left’’ in the definition of evacuee and the word “has’’ in the definition of evacuee property is relied upon to argue that the legislature intended the provisions to apply only to a living person. While this argument was not deemed inherently compelling, the Court observed that it received support from other provisions of the Act that would be referred to later. The Court further pointed out that clause (f)(1) would not apply to the petitioners’ situation.
In this case the petitioners asserted that they did not acquire the property from the evacuee after the fourteenth day of August 1947 by any mode of transfer; instead they claimed the property by right of succession under Mohammedan law. The Court observed that succession to property is a devolution by operation of law and therefore cannot properly be described as a mode of transfer, a characterization advanced by the Solicitor-General which presupposes an inter- vivos transfer. The Court then turned to Section 7 of the Act, which deals with the notification of evacuee property. That provision states that when the Custodian is of the opinion that any property falls within the meaning of the Act, he may, after giving notice in the manner prescribed to persons interested and after holding an inquiry into the matter as the circumstances permit, pass an order declaring such property to be evacuee property. The manner of conducting such an inquiry is set out in Rule 6, which is framed pursuant to the powers conferred by Section 56 of the Act. The rule reads 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. (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. (4) Where a notice has been duly 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”. The Court therefore clarified that the procedural steps set out in Rule 6 must be followed before any declaration of evacuee status can be made.
After all of the evidence presented by the party who appeared to show cause and by any person who claimed an interest in the property had been recorded, the Custodian was required to summarize the evidence in a concise manner. Once the summary was completed, the Custodian could then issue his order. The order had to specify the points that were to be decided, set out the findings on each point, and provide brief reasons for those findings. The rules included a Form No 1 in Appendix A, which read as follows: “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.” This notice was directed to any person whose interest in the property was known to the Custodian and who was considered, on the basis of the Custodian’s information, to be a prima facie evacuee.
The next significant provision was section 8 of the Administration of Evacuee Property Act, the relevant portion of which stated: “(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 the definition of evacuee property found in section 2 is substituted into section 8, the meaning becomes clearer. Any property that is declared to be (i) property in which an evacuee has any right or interest, or (ii) property obtained from an evacuee after 14 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. The language of the rule, read together with the Form, shows that the notice is issued to a person who, according to the Custodian’s information, appears to have an interest in property that is prima facie evacuee property. The manner of service and the inquiry process demonstrate that the object of section 7 is to initiate proceedings against a living person. Consequently, the present-tense usage of “evacuee” and “evacuee property” supports the contention that the proceedings are intended to apply only to living individuals, and the property that vests under clause (i) must be property in which an evacuee actually has a right or interest.
In this case the Court observed that a deceased person no longer possesses any right or interest in his property after his death because the property automatically vests in his legal heirs. Consequently clause (ii) of the rule could not be invoked, as the petitioners had not acquired the property from an evacuee through any mode of transfer. The Court pointed out that, under the Act, a piece of property must first be formally declared as evacuee property pursuant to section 7 before it can subsequently vest in the Custodian under section 8. Although the vesting that follows a declaration under section 8 operates retrospectively, the Court held that the doctrine of relation-back could not be applied when the owner dies before such a declaration is made; therefore the property cannot be transferred to the Custodian by operation of law while it already belongs to the legal heirs.
To illustrate the principle, the Court gave a simple example. If a person left India after 1 March 1947, the date specified in section 2(d), and then died in Pakistan before any notice was issued to him under section 7 and before any inquiry was conducted, the heirs who had already succeeded to his property could not be deprived of it by an inquiry into the deceased’s status or by an investigation of his interest in the property. In such a situation section 8 would not be triggered, and there could be no retrospective vesting of the property before it is first declared evacuee property within the meaning of section 2(f) of the Act.
The Court read sections 7 and 8 together and concluded that the Custodian acquires dominion over a property only after a declaration is made. The declaration, in turn, follows an inquiry conducted under section 7. Until the proceedings under section 7 are initiated, there is no vesting of the property in the Custodian and consequently no right for the Custodian to take possession. The Court then asked: if the alleged evacuee dies before a declaration is issued, does the Custodian acquire any right to possess the property? The Court answered in the negative, reasoning that if the Custodian cannot take possession of a living person’s property before a declaration, the same logic prevents him from taking possession after the person’s death, when the property has already passed to the heirs. The enquiry under section 7 is therefore a condition precedent to the declaration under section 8, and the Custodian’s right to dominate the property arises only after that declaration. There is no basis for depriving the heirs of their property before the Custodian obtains such dominion.
Finally, the Court considered whether procedural provisions of the Civil Procedure Code might apply. It noted that section 141 of the Code, which makes the procedural law applicable to all civil suits, does not extend to the Custodian because the Custodian is not a court, despite the quasi-judicial nature of his proceedings. Section 45 of the Act incorporates Code provisions only for enforcing the attendance of a person, examining him on oath and compelling the discovery and production of documents. Consequently, the Code’s rules on substitution are inapplicable, and the Act contains no provision allowing heirs to be substituted for the deceased in order to continue the proceedings. Hence, once the alleged evacuee dies, the proceedings must lapse, and the heirs cannot be subjected to a fresh declaration of evacuee status.
The Court observed that the proceedings could not be continued against the heirs after the death of the alleged evacuee because the procedural rules that allow a party to be examined on oath and to be compelled to produce documents did not include any provision for substituting the heirs in place of the deceased. It noted that the provisions of the Code that deal with substitution were therefore inapplicable, and that the Act contained no separate rule permitting the heirs to be substituted so that the proceedings could go on against them. Consequently, the Court held that if the trial cannot proceed against the heirs when the alleged evacuee dies, it follows logically that the suit cannot be started against the heirs at all. On that basis the Court concluded that the proceedings must automatically lapse on the death of the person whose property was alleged to be evacuee property. The Court further stated that the Act does not contain any clause that allows a deceased man’s property to be declared evacuee property after his death. Had such a provision existed, the statutory vesting intended by section 8 of the Act would have overruled the vesting of the property that, under Mohammedan law, passes to the heirs at the moment of death.
Turning to the substantive law of inheritance, the Court reiterated the well-recognised principle that the estate of a deceased Mohammedan immediately devolves upon his heirs in the shares prescribed by that personal law, and that this devolution is not delayed by any debts owed by the decedent nor postponed until those debts are paid. It also pointed out that, unlike the Indian Succession Act, property under Mohammedan law vests in the heirs without the need for an administrator. Section 40 of the Act was examined next. The Court explained that this section places a restriction on an evacuee’s power to transfer his property after 14 August 1947. Specifically, any inter-vivos transfer made after that date is prohibited unless it is confirmed by the Custodian. However, the section does not affect a transfer that was completed between 1 March 1947 and 14 August 1947; such a transfer is considered immune from being treated as evacuee property, even if the transferor migrated after 1 March. If a bona-fide transfer of the entire property was effected before 14 August 1947, the property does not acquire the character of evacuee property and no Custodian confirmation is required, whereas transfers after that date are regarded with suspicion. The Court observed that, on the same reasoning, the death of a transferor before a declaration made after 14 August 1947 should lead to the same result. The argument presented to the Court that the Act fixes the nature of the property from a specific date and that the proceedings are directed against the property rather than the person was rejected as fallacious. The Court emphasized that property, whether evacuee or otherwise, cannot exist without a person who owns it, and therefore the legal consequences flow from the existence of a rightful owner.
The Court observed that the Act characterises the property of an owner as evacuee property when the owner is deemed to be subject to disability on specified grounds. The statutory definition of evacuee property commences with the words “property in which an evacuee has any right or interest in any capacity”. The Act further requires that a property cannot be formally notified as evacuee property until the person asserting an interest in that property has received proper notice. Reference was also made to section 43, which indicates that a declaration made under section 8 is intended to be effected during the lifetime of the alleged evacuee. Section 43 provides that, “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.” Accordingly, the provision means that once the property has vested in the Custodian, the subsequent death of the evacuee or the evacuee’s loss of evacuee status does not disturb the vesting or invalidate subsequent actions. The Court noted that the wording of the section implies that the vesting must occur while the alleged evacuee is still alive; otherwise the safeguard against post-mortem or status-change effects would be purposeless. The Solicitor-General argued that section 43 enshrines the principle “once an evacuee always an evacuee”. The Court found this conclusion unsupported by the language of section 43 and said it is not corroborated by any other provision of the Act.
The Court further explained that the object and scheme of the Act leave little doubt that its purpose, as indicated by its title, is to provide for the administration of evacuee property. It is a matter of common acceptance that such property is ultimately intended to compensate refugees who lost their assets in Pakistan. The Act therefore contains detailed provisions governing the administration of that property. Section 9 empowers the Custodian to take possession of evacuee property that has been vested in him under section 8. Section 10 sets out the Custodian’s general powers, allowing him to take any measures he deems necessary or expedient for the administration, preservation, and management of evacuee property. Sub-section (2) of section 10, clause (j), specifically authorises the Custodian to institute, defend, or continue any civil or revenue court proceedings on behalf of the evacuee. Section 15 obliges the Custodian to maintain a separate account for the property of each evacuee. Section 16 enables the Custodian to restore evacuee property upon an application by the evacuee or by any person claiming to be his heir, provided the applicant produces a certificate from the appropriate authority.
In the Act, the Central Government may direct that evacuee property be restored to a particular person. When such restoration occurs, the Custodian is released from any further responsibility regarding the restored property. However, the restoration does not affect any rights that another person might have to enforce against the individual to whom the property has been returned.
Section 62 of the Act provides that the Central Government, by publishing a notification in the Official Gazette, may exempt any person or class of persons, or any property or class of property, from the operation of all or any of the provisions of the Act. Pursuant to this power, the Central Government issued Notification No. S.R.O. 260 on 3 July 1960. The notification was later printed in the Gazette of India, Part II, Section 3, on 15 July 1950, on page 254. The notification identified three broad categories of persons who were to be exempted:
(a) Any person who, on or after 1 March 1947, migrated from India to Pakistan but who returned to India before 18 July 1948 and subsequently settled in India;
(b) Any person who left for Pakistan on a temporary visit carrying a “No objection to return” certificate and who has returned, or will return, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return;
(c) Any person who came from Pakistan to India before 18 October 1949 under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India.
These provisions demonstrate that a person who has been declared an evacuee does not suffer a permanent civil death. Instead, the law allows that, under certain circumstances, the person may cease to be an evacuee, be reinstated to his original position, and have his property restored to him, provided that the restoration is subject to the conditions laid down and does not prejudice any existing rights of other claimants. The provisions also make clear that the status of a property as “evacuee property” is not an immutable characteristic; it can cease to apply when the disability of the owner is removed, at which point the property becomes eligible for restoration.
During the arguments, counsel for the petitioner, Mr Desai, referred to Section 93 of the Presidency Towns Insolvency Act and Section 17 of the Provincial Insolvency Act. Section 93 of the former provides that “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 as if he were alive.” The latter section states that “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.”
The Court examined the provision of the Provincial Insolvency Act which states that “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.” Although the wording of this provision differs slightly from the corresponding section of the Presidency Towns Insolvency Act, the underlying principle of insolvency law is the same. The principle is that the death of an insolvent person while an insolvency petition is pending does not terminate the proceedings. Instead, the proceedings must continue in order to administer the debtor’s property for the benefit of the creditors. The Court noted that the Act presently before it contains no provision that mirrors this principle. Consequently, if the legislature had intended to treat a person against whom proceedings under section 7 were instituted as alive for procedural purposes even after his death, it would have expressly inserted such a provision into the Act. After careful consideration of the facts and arguments, the Court was of the opinion that the order dated 30 July 1951, issued by the Custodian General which declared Aboobaker Abdul Rehman to be deceased as an evacuee and designated his remaining property as evacuee property, could not stand and therefore must be set aside. Accordingly, the Court allowed Appeal No. 65 of 1953, which arose out of Petition No. 105 of 1952, and held that the Custodian General lacked jurisdiction to pass the 30 July 1951 order and that the order should be vacated. No order was made as to costs. Petition No. 106 of 1952 was not pressed, and therefore no order was required in respect of that petition. In view of the decision in Appeal No. 65 of 1953, no further orders were necessary in Petition No. 247 of 1952. The appeal was allowed. Agent for the appellants and petitioners. Agent for the respondent in Petition No. 247.