Ebrahim Aboobaker And Anr. vs Tek Chand Dolwani And Ors.
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: Chief Justice Ghulam Hasan, Gajendragadkar J.
The case titled Ebrahim Aboobaker and another versus Tek Chand Dolwani and others was decided on the tenth day of April, 1953 by the Supreme Court of India. The judgment was authored by Justice Ghulam Hasan, who at the time served as the Chief Justice. To appreciate the matter that came before the Court, it is necessary to set out the relevant background. Aboobaker Abdul Rehman, a resident of Bombay, received on the sixteenth of December, 1949, a notice from the Additional Custodian of Bombay. The notice, issued under section seven of Ordinance No XXVII of 1949, required him to show cause why his interest in certain specified property should not be declared evacuee property. A second notice was issued on the eleventh of January, 1950, demanding that he also show cause why he himself should not be declared an evacuee and why all of his properties should not be treated as evacuee property. On the eighth of February, 1950, the Additional Custodian decided that Aboobaker was not an evacuee, but on the same day issued a fresh notice under section nineteen, asking him to show cause why he should be declared an “intending evacuee”. The following day, on the ninth of February, the Additional Custodian declared Aboobaker to be an “intending evacuee” on the basis of the same evidence. Aboobaker did not appear to have contested this finding. However, Tek Chand Dolwani, identified as the first informant, carried the matter in appeal before 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 that had governed the proceedings expired on the eighteenth of October, 1949, and was subsequently replaced by Act XXXI of 1950, known as the Administration of Evacuee Property Act, which came into force on the seventeenth of April, 1950. Although the Ordinance was repealed by section fifty-eight of the Act, it was not disputed that any proceedings taken while the Ordinance was in force were to be deemed as having been taken under the powers conferred by the Act, as if the Act had been in operation on the date of those proceedings. The appeal filed by Dolwani was heard on the thirteenth of May, 1950, during which preliminary objections concerning the maintainability of the appeal were argued. The appeal was then adjourned to the fifteenth of May for the making of orders. While the appeal was pending, Aboobaker died on the fourteenth of May, leaving three surviving sons and a daughter as heirs under Mohammedan law; the sons each were entitled to a two-sevenths share and the daughter to a one-seventh share. On the fifteenth of May, the Custodian General issued an order—though dated the thirteenth of May—dismissing the preliminary objections, directing that further inquiries be conducted, and ordering that Aboobaker be examined further on the nineteenth of August, 1950. The hearing of the appeal was postponed repeatedly and was finally fixed for final disposal on the seventh of March, 1951. Notices of this hearing were sent to Ebrahim Aboobaker, a son, and Hawabai Aboobaker, the daughter, who together owned three-sevenths of the deceased’s estate and were required to appear as the heirs and legal representatives of the deceased.
The petitioners, who lived in India and whose two brothers were reported to have moved to Pakistan, filed Miscellaneous Petition No. 15 of 1951 in the Punjab High Court on 26 February 1951. In that petition they sought either a writ of prohibition or suitable directions ordering the Custodian General to refrain from continuing the hearing of the appeal, from making any further order in that appeal, and from declaring the property left by the deceased as evacuee property. The petitioners argued, among other points, that once Aboobaker had died the Custodian General no longer possessed jurisdiction to proceed with the appeal.
The Punjab High Court dismissed the petition on 24 May 1951, holding that the Custodian General retained jurisdiction over the matter. Although the court granted leave to appeal, it did not stay the hearing that the Custodian General had already scheduled for 3 July 1951, and it directed that the Custodian General should not pass any final orders before 23 July 1951. The Custodian General heard the appeal on 3 July and on 30 July, the date fixed for delivering final orders, declared Aboobaker to be an evacuee and classified his properties as evacuee properties.
On 6 August 1951 the petitioners instituted another petition, Miscellaneous Petition No. 191 of 1951, in the Bombay High Court under article 226 of the Constitution. They sought a writ of certiorari to quash and set aside the July 30 order and requested that the Custodian General and the local Custodian in Bombay be directed not to act on that order or to take possession of the property situated in Bombay. Justice Shah dismissed the petition on 4 October 1951, reasoning that the Bombay High Court lacked jurisdiction over the Custodian General and that the petition against the local Custodian was premature.
Consequently, the petitioners filed Appeal No. 88 of 1951 on 5 October 1951 against the Bombay High Court’s decision. An interim order was issued whereby the petitioners promised to keep accounts and to refrain from disposing of the properties, while the Custodian General gave an undertaking not to take possession pending resolution of the appeal. The appeal was heard on 20 November 1951 before the Chief Justice and Justice Gajendragadkar. The bench allowed the appeal to be stayed, preferring to await the Supreme Court’s decision on the Punjab High Court appeal, so as not to render any order that might conflict with that pending decision. The Supreme Court later dismissed that Punjab High Court appeal on 26 May 1952 (see Ebrahim Aboobaker and Another v. Custodian General of Evacuee Property, [1952] S.C.R. 696). In that dismissal the Court addressed only the preliminary issue that Tek Chand Dolwani was entitled to prefer an appeal, and it left open the question of whether the Custodian General had the authority to declare Aboobaker’s properties evacuee properties after his death, because that question had not been raised before the Court.
In this matter, the order dated 30 July 1951 was issued after the appeal had already been filed in the Supreme Court and because the question of that order was still pending before the Bombay High Court. Appeal No 88 of 1951 was dismissed on the 1st and 2nd of July 1952 by the Chief Justice and Justice Gajendragadkar on the preliminary ground that the court possessed no jurisdiction to set aside the Custodian General’s order of 30 July 1951. The judges also declined to make any order against the local Custodian, observing that they could not accomplish indirectly what they were not authorized to do directly. A separate petition seeking leave to appeal was turned down by the High Court on 14 July 1952. Subsequently, Petition No 105 of 1952 was filed for special leave to appeal against the Custodian General’s order dated 30 July 1951. Petition No 106 of 1952 challenged the order of the Appellate Bench of the Bombay High Court dated 1 – 2 July 1952. Petition No 247 of 1952 was an independent writ petition under Article 32 of the Constitution that contested the Custodian General’s order of 30 July 1951 on the ground that it violated the petitioners’ fundamental rights and was made without jurisdiction. The respondent, Tek Chand Dolwani, entered a caveat against Petition No 105 of 1952, while the Article 32 petition was heard after giving notice to the Custodian General. In that petition it was submitted that, when the provisions of the relevant Ordinance and the Administration of Evacuee Property Act are correctly interpreted, the Custodian General lacked authority to hear the appeal after the death of Aboobaker or to declare Aboobaker’s remaining property as evacuee property, because the appeal terminated upon his death and the property passed to his heirs in specified shares under Muslim law. It was further argued that the property 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 had no power to designate it as such. Moreover, the deceased no longer possessed any right, title, or interest in the property after his death, and his heirs did not acquire the property by any transfer from him. Consequently, the order of 30 July 1951 was challenged as void and ineffective, on the basis that it infringed the petitioners’ fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The petitioners sought a writ of certiorari directing the Custodian General to produce the records relating to that order and, after a review of those records and the question of legality, to set aside and nullify the order. They also prayed for a writ of prohibition, mandamus, or any appropriate direction that would require the Custodian General, his officials, and agents to refrain from acting upon or enforcing the order dated 30 July 1951 or from taking any steps or proceedings to enforce it.
The Court directed that the agents of the Custodian General should refrain from acting upon or enforcing the order dated 30 July 1951 and should not take any steps or commence any proceedings to enforce that order. The petitioners and the Solicitor-General were then heard on the petition filed under article 32, and the Court reserved its orders until the appearance of Mr Dolwani, who was the caveator in the application for special leave to appeal. Notice of the proceedings was served on Mr Dolwani both personally and through his agent, but he failed to appear on any of the occasions. Consequently, the Court granted the application for leave to appeal against the Custodian General’s order and ordered that the appeal be listed for hearing together with the article 32 petition. When Mr Dolwani again failed to appear, the Court decided to dispose of both the appeal and the petition in a single, common judgment.
The central issue that arose for the Court’s consideration was whether a deceased person could be declared an evacuee and whether property that, upon that person’s death, passed to his heirs under Mohammedan law could be treated 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 argued that no infringement of a fundamental right occurred because the petitioners had not been deprived of any property without legal authority. He further stated that the Custodian General purported to act under a specific statutory enactment; even if the Custodian General had misapplied or misinterpreted the law, such an error would not bring the matter within the scope of article 31(1) read with article 19(1)(f) of the Constitution. The Court found this point debatable but declined to pronounce on it, expressing instead its intention to examine the validity of the Custodian General’s order dated 30 July 1951 in the context of Civil Appeal No 65 of 1953, which stemmed from Petition No 105 of 1952 for special leave, and not to decide the issue in the article 32 petition. The Court then quoted the statutory definitions contained in Section 2(d) and (f). Section 2(d) defines “evacuee” as any person who, because of the creation of the Dominions of India and Pakistan, civil disturbances, or fear of such disturbances, left or has left any place in a State for a place outside the territories now forming part of India on or after 1 March 1947; or who is resident in an area now forming part of Pakistan and, for that reason, is unable to occupy, supervise or manage 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, or is being occupied, supervised or managed by an unauthorised person; or who …
It is provided that after the fourteenth day of August 1947 any person who, except by purchase or exchange, has obtained any right, interest or benefit in property that is regarded as evacuee or abandoned under any law then in force in Pakistan, is covered by the definition. The term “Evacuee property” is defined to mean any property in which an evacuee possesses any right or interest – whether in a personal capacity, as a trustee, as a beneficiary, or in any other capacity – and the definition further includes any property that has been obtained from an evacuee after the fourteenth day of August 1947 by any mode of transfer, unless such a transfer has been confirmed by the Custodian. 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 these provisions to apply only to a living person. Although this argument is not in itself highly persuasive, it gains support from the other provisions of the Act, which will be referred to later. It should be noted, however, that clause (f)(1) does not apply to the petitioners, because they do not claim the property from an evacuee after the fourteenth day of August 1947 by any mode of transfer; rather, they claim it by right of succession under Mohammedan law. Succession implies a devolution of property by operation of law and cannot properly be described as a mode of transfer, as the Solicitor-General’s submission suggests, which contemplates an inter- vivos transfer. Section 7 deals with the notification of evacuee property. It provides that when the Custodian is of the opinion that any property falls within the meaning of “evacuee property” under this Act, he may, after causing a notice to be given in the manner prescribed to the interested persons and after conducting an inquiry into the matter as the circumstances permit, pass an order declaring such property to be evacuee property. Rule 6, framed under the powers conferred by section 56 of the Act, obliges the Custodian to cause a notice in Form No 1 to be served on the person claiming title to the property or any other person considered to be interested. The notice must, as far as practicable, state the grounds on which the property is sought to be declared evacuee property and must specify the provision of the Act under which the person claiming any title or interest in the property is alleged to be an evacuee.
The rule required that a notice be addressed to a person who was alleged to be an evacuee. The notice had to be served personally, but if personal service was not possible, the notice could be served in any manner permitted by rule twenty-eight, which dealt with substituted service. Once the notice had been properly served, the person to whom it was addressed was required to appear on the date fixed for hearing and to show cause why the property in question should not be declared evacuee property. If that person failed to appear, the Custodian was empowered to conduct the hearing ex parte and to pass an order based on the material that was before him, according to his own discretion. If the person did appear and contested the notice, he was required to file a written statement, verified in the same manner as a pleading under the Code of Civil Procedure, 1908. In that written statement the contestant had to set out the reasons why he should not be deemed an evacuee and why the property or his interest in it should not be declared evacuee property. Any other person claiming an interest in the property could, in turn, file a reply to the written statement. After the exchange of statements, the Custodian could, either on the same day or on any subsequent day to which the hearing was adjourned, hear the evidence produced by the party who had been called upon to show cause, as well as any evidence presented by the persons claiming an interest in the property. Once all evidence had been recorded in a summarized form, the Custodian was to pronounce his order. The order had to specify the points for determination, state the findings on each point, and provide brief reasons for those findings.
The form prescribed for the notice, identified as Form No. 1 in Appendix A to the rules, began with a statement that the Custodian possessed credible information that the addressee was an evacuee within the meaning of clause (iii) of section two-d of the Administration of Evacuee Property Act, and it listed the grounds on which that conclusion was reached. The form further indicated that it was desirable to hear the addressee in person and then called upon the addressee to show cause, together with all material evidence on which he wished to rely, why orders should not be passed declaring him an evacuee and all his property as evacuee property under the provisions of the Act. The notice was signed by the Deputy Custodian. The next important provision discussed was section eight of the Act. Section eight provided that any property declared evacuee property under section seven would be deemed to have vested in the Custodian for the State. Specifically, in the case of property belonging to an evacuee defined in sub-clause (i) of clause (d) of section two, the vesting was to be deemed to have occurred from the date on which the evacuee left any place in a State for a place outside the territories that now form part of India. By substituting the definition of evacuee property found in section two into section eight, the meaning of section eight became clearer, indicating that any property declared as belonging to an evacuee would vest in the Custodian from the moment the evacuee departed the territory.
The provision stipulated that any property in which an evacuee possessed any right or interest would fall under sub-paragraph (i). In addition, sub-paragraph (ii) covered any property that any person had obtained from an evacuee after the fourteenth day of August, 1947, by any mode of transfer, unless such a transfer had been confirmed by the Custodian under section 7. Both categories of property were to be deemed vested in the Custodian for the State. Specifically, clause (a) clarified that where the property belonged to an evacuee as defined in sub-clause (i) of clause (d) of section 2, the vesting would be deemed to arise from the date on which the evacuee left, or had left, any place in a State for any place outside the territories that now constitute India. This language set the temporal point of vesting at the moment of departure from Indian territory, linking the status of the property directly to the evacuee’s act of leaving the country.
The Court observed that the wording of the rule, when read together with the form of notice issued to a person claiming interest in property that the Custodian considered prima facie to be evacuee property, the manner of service of that notice, and the mode of inquiry prescribed, led to an unmistakable conclusion. The object of section 7 was to commence proceedings against a living person; the present-tense usage in the definitions of “evacuee” and “evacuee property” reinforced the view that the proceedings were intended to apply only to persons who were alive at the time of declaration. Accordingly, property that falls under sub-paragraph (i) must be one in which an evacuee has a right or interest, but after the evacuee’s death such right passes to his heirs and therefore the property no longer satisfies sub-paragraph (i). Similarly, sub-paragraph (ii) does not apply because the petitioners had not acquired the property from an evacuee by any mode of transfer. The Court further held that a property must first be declared as evacuee property under section 7 before it can vest under section 8. Although vesting under section 8 operates retrospectively once a declaration is made, the doctrine of relation-back cannot be invoked when the alleged evacuee dies before any declaration is issued. The Court illustrated this by explaining that if a person left India after the first of March, 1947, and died in Pakistan before a notice under section 7 was served or an inquiry held, the heirs who had already succeeded to his property could not be deprived of it by a later inquiry into the deceased’s status. In such a scenario, section 8 would not come into play, and there could be no retrospective vesting of the property before it is declared evacuee property within the meaning of section 2(f) of the Act. Reading sections 7 and 8 together, the Court concluded that the Custodian acquires dominion over the property only after a declaration is made, and that declaration follows the inquiry conducted under section 7.
The Court explained that although the Custodian may commence an enquiry under section 7, until such proceeding is taken there is no vesting of the property and consequently the Custodian possesses no authority to take possession of it. It then asked whether the Custodian would have any right to take possession if the alleged evacuee died before a declaration under section 8 was made; the answer was negative, because if the Custodian cannot take possession of the property of a living person before a declaration, the same principle bars him from taking possession after the alleged evacuee’s death when the property has already passed into the hands of the heirs. The enquiry under section 7 was described as a condition precedent to the declaration under section 8, and the Custodian’s right to exercise dominion over the property does not arise until that declaration is issued; therefore there is no reason for the heirs to be divested of their property before the Custodian obtains such dominion. The Court further observed that Section 141 of the Civil Procedure Code, which extends the procedural law of courts to all civil proceedings, does not apply because the Custodian is not a court, even though his proceedings are quasi-judicial in nature. Only Section 45 of the Act brings the Code into play for purposes of compelling attendance, examining persons on oath and ordering discovery and production of documents. Consequently, the Code’s provisions on substitution are inapplicable, and the Act contains no provision allowing the heirs to be substituted for the deceased so that proceedings may continue against them. Since the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it follows logically that such proceedings cannot be initiated against them, and the Court held that the proceedings must lapse on the death of that person. The Court noted that the Act contains no provision permitting an estate to be declared evacuee property after the owner’s death; had such a provision existed, the vesting contemplated in section 8 would have displaced the vesting of the property under Mohammedan law in the heirs after death. It is a well-recognised principle that, under Mohammedan law, the estate of a deceased person devolves instantly upon his heirs in specific shares at the moment of death, and this devolution is not suspended by any debts owed by the deceased nor postponed until those debts are paid. Moreover, unlike the Indian Succession Act, property vests in the heirs under Mohammedan law without the intervention of an administrator. Finally, the Court mentioned that Section 40 of the Act imposes a restriction on an evacuee’s right to transfer property after 14 August 1947, prohibiting inter-vivos transfers made after that date.
In this case the Court observed that the operation of law which caused a property to devolve on the death of its owner could not be altered by the provisions relating to evacuee property. According to the relevant section, once a person’s property was notified or declared to be evacuee property, that person was prohibited from transferring the property after 14 August 1947 unless the transfer received confirmation from the Custodian. The Court noted that a transfer made between 1 March 1947 and 14 August 1947 was shielded from being treated as a transfer of evacuee property, even if the transaction was completed after 1 March. Consequently, if a transferor had made a bona-fide conveyance of his entire estate before 14 August 1947, the property did not acquire the character of evacuee property and the conveyance did not require Custodian confirmation, whereas all transfers after that date were regarded with suspicion. The Court further explained that if a transfer occurring between those two dates was held to be valid, then by the same reasoning the death of the transferor before the post-14 August declaration should produce the same effect. The Court rejected the contention that the Act was aimed at fixing the nature of the property from a specified date and that the proceedings were directed against the property rather than the person. It held that no property—evacuee or otherwise—could exist without an owner, and that it was the owner’s property that was declared evacuee because the owner was subject to disability on certain grounds. The definition of evacuee property in the Act began with the phrase “property in which an evacuee has any right or interest in any capacity,” and the Act required that a notice be given to the person claiming an interest before the property could be notified as evacuee property. The Court also referred to section 43, which indicated that a declaration under section 8 was intended to be made during the lifetime of the alleged evacuee. Section 43 provided that where, under the Act, any property vested in the Custodian, the subsequent death of the evacuee or the cessation of the evacuee’s status would not affect the vesting or invalidate any consequent actions. This wording suggested that vesting must occur while the alleged evacuee was alive; otherwise the provision that death or loss of status would not affect vesting would be meaningless. Finally, the Solicitor-General contended that…
In this case, the Court observed that section 43 of the Act embodied the principle “once an evacuee always an evacuee”. The Court held that this principle was hardly justified by the wording of section 43 as explained earlier, and that it found no support in any other provision of the Act. The Court further noted that the purpose and structure of the Act left little doubt that the legislation, as its title indicated, was intended to provide for the administration of evacuee property, and that it was unanimously accepted that such property was ultimately to be used for compensating refugees who had lost their property in Pakistan. The Act, the Court said, contained elaborate provisions governing how the administration should be carried out. Section 9, the Court explained, empowered the Custodian to take possession of evacuee property that had vested in him under section 8. Section 10, which defined the Custodian’s powers in general, authorised him to take such measures as he considered necessary or expedient for the purposes of administering, preserving and managing any evacuee property. The Court pointed out that sub-section (2) of section 10, clause (j), specifically authorised the Custodian to institute, defend or continue any legal proceedings in any civil or revenue court on behalf of the evacuee. Section 15, the Court added, imposed on the Custodian an obligation to maintain a separate account for the property of each evacuee. Section 16, according to the Court, empowered the Custodian to restore evacuee property when an application was made by the evacuee or a person claiming to be his heir, provided that a certificate from the Central Government was produced confirming that the property could be restored. Upon such restoration, the Custodian would be absolved of all responsibilities concerning the restored property, although the restoration would not prejudice any rights that any other person might be entitled to enforce against the person to whom the property was restored. Finally, the Court observed that section 52 authorised the Central Government, by notification in the official Gazette, to exempt any person, class of persons or any property from the operation of all or any provision of the Act. Pursuant to this power, the Central Government issued Notification No. S.R.O. 260 dated 3 July 1950, which was published in the Gazette of India, Part II, section 3 dated 15 July 1950 on page 254. That notification broadly exempted three categories of persons: (a) any person who, on or after 1 March 1947, migrated from India to Pakistan but returned to India before 18 July 1948 and had settled there; (b) any person who left, or leaves, for Pakistan on a temporary visit while carrying a “No objection to return” certificate and who 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 came from Pakistan to India before the 18th day.
In the statutory scheme, the fact that a person had been declared an evacuee did not amount to a permanent death of his civil capacity, nor did it render the individual an evacuee for all time. The provisions indicated that, upon the occurrence of specified conditions, the person could cease to be an evacuee, be restored to his former status, and have his property returned to him, subject only to the conditions laid down and without prejudice to any rights that another party might have in respect of that property. The legislation further demonstrated that the classification of property as “evacuee property” was not an immutable characteristic of the land or assets themselves; rather, the property acquired that description only because of the disability attaching to its owner. When the owner’s disability terminated, the property lost that disability and became liable to be restored to the owner. Consequently, the status of evacuee property could be withdrawn when the circumstances that gave rise to it no longer existed.
Counsel for the petitioner, identified as Mr. Desai, referred during the arguments to section 93 of the Presidency Towns Insolvency Act and to section 17 of the Provincial Insolvency Act. Section 93 provided that if a debtor against whom an insolvency petition had been presented died, the proceedings would, unless the Court ordered otherwise, continue as if the debtor were alive. Section 17 similarly stipulated that upon the debtor’s death, the proceedings would continue as necessary for the realisation and distribution of the debtor’s property, unless the Court directed otherwise. Although the wording of the two sections differed slightly, the underlying principle was that the death of an insolvent during pending insolvency proceedings did not cause the proceedings to abate; instead, they were to continue so that the debtor’s property could be administered for the benefit of the creditors. No comparable provision existed in the Act under consideration. Therefore, the Court inferred that, had the legislature intended to treat a person proceedings under section 7 as alive for procedural purposes even after his death, it would have expressly incorporated such a provision. After careful consideration, the Court concluded that the order dated 30 July 1951, issued by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and designating his property as evacuee property, could not stand and was 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 had no jurisdiction to make the 30 July 1951 order, thereby rescinding it. No order as to costs was made, and the ensuing Petition No. 106 of 1952 was not pressed, requiring no further order.
The Court observed that Petition numbered 106 of the year 1952 had not been pressed for further consideration and therefore found no justification for issuing any additional order in relation to that petition. It further noted that, in light of the Court’s earlier determination in Appeal No. 65 of 1953, there was no legal basis to issue any order concerning Petition No. 247 of 1952, and consequently no further procedural step was required for that matter. After reviewing the submissions and the applicable legal principles, the Court concluded that the appeal was properly allowed. The parties appearing on behalf of the appellants and petitioners were represented by counsel identified as Rajinder Narain, while the respondent in Petition No. 247 was represented by counsel identified as G.H. Rajadhyaksha. The Court’s order therefore set aside the earlier declaration of death, dismissed any pending relief in Petition No. 106, and declined to make any further orders in Petition No. 247, thereby bringing the proceedings to an end in accordance with the reasons articulated in the judgment.