State of Bihar vs Kumar Amar Singh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 97 and 98 of 1952

Decision Date: 10 February 1955

Coram: B. Jagannadhadas, Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha

In this matter, the Supreme Court of India issued its judgment on ten February 1955 concerning an appeal filed by the State of Bihar against Kumar Amar Singh and several other respondents. The judgment was authored by Justice B. Jagannadhadas, who was joined on the bench by Justices Natwarlal H. Bhagwati and Bhuvneshwar P. Sinha. The official citation of the decision is recorded as 1955 AIR 282 and 1955 SCR (1) 1259. The dispute centered on the interpretation of Articles 5 and 7 of the Constitution of India, together with the proviso to Article 7, in the context of citizenship status after the partition of the sub-continent. The respondent, identified as Kumar Rani, had migrated from the Indian territory to Pakistan in 1948, after the cut-off date of 1 March 1947, while her husband remained in India. The respondent contended that she retained Indian citizenship because she was born in India and her domicile, according to her argument, continued to be linked to her husband who was still residing in India. She relied on the wording of Article 5, which provides that any person domiciled in India and born therein at the commencement of the Constitution is a citizen. The State of Bihar argued that Article 7, which excludes from citizenship any person who migrated to Pakistan after 1 March 1947, supersedes the provision in Article 5. The case also required interpretation of the Administration of Evacuee Property Ordinance 1949, the Administration of Evacuee Property Act 1950 (Act XXXI of 1950), and the Bihar Evacuee Property Ordinance No. III of 1949, particularly regarding whether the definition of “evacuee property” encompassed interests held by an evacuee in the capacity of trustee, beneficiary, or under a wakf.

The Court concluded that Article 7 unequivocally overrides Article 5, and therefore the respondent could not be regarded as a citizen of India because she had migrated to Pakistan after the statutory date. The Court further observed that the proviso to Article 7, which might preserve citizenship in certain circumstances, did not apply because the respondent’s case involved the unauthorised issuance of an invalid permit that had subsequently been lawfully cancelled. Consequently, the respondent’s claim to Indian citizenship was rejected. In addition, the Court examined the statutory definitions of “evacuee property” in both the 1949 Ordinance and the 1950 Act, finding that they expressly included the interests of an evacuee in any property where the evacuee acted as trustee or beneficiary. The definition in the Bihar Evacuee Property Ordinance No. III of 1949 was held to be consistent with the central legislation and also covered wakf property and any interest therein. Thus, the Court held that the respondent’s interests in the disputed property fell within the ambit of evacuee property, subjecting them to the provisions governing such assets.

Civil Appeals Nos 97 and 98 of 1952 were filed under Articles 132(1) and 133(1)(c) of the Constitution of India against the judgment and decree dated 13 October 1950 rendered by the High Court of Judicature at Patna in Miscellaneous Judicial Cases Nos 140 and 107 of 1950. The appellant in both appeals was the State of Bihar, represented by the Attorney-General for India together with counsel G N Joshi, Lal Narain Sinha and P G Gokhale. The respondents, numbered one to four, were represented by counsel B Sen and I N Shroff. The judgment of the Supreme Court was delivered on 10 February 1955 by Justice Jagannadhadas.

These two appeals were connected because they arose from a single judgment of the Patna High Court that disposed of two applications filed on 5 July 1950 and 28 July 1950 under article 226 of the Constitution. In each appeal the State of Bihar challenged the actions of its own government officers. The first three respondents in Appeal No 97 were the sons of the fourth respondent, Kumar Rani Sayeeda Khatoon, who is also identified as the first respondent in Appeal No 98. The remaining respondents in both appeals were government officers acting under the authority of the State of Bihar.

The applications before the High Court concerned two distinct aspects of the State’s action against Kumar Rani: the deprivation of her property and the expulsion of her as a person. Kumar Rani was born in the territory of India and asserted that she was lawfully married to Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya, first according to Arya Samaj rites in 1920 and later according to Muslim rites. She owned and possessed extensive lands. In May 1946 she executed a deed of Wakf-ul-Aulad, creating a wakf comprising 427 villages for the maintenance and support of herself, her three sons and their descendants. By that deed she transferred all her interest in the properties to Almighty God, appointed herself as the sole mutawalli for her lifetime, and designated her three sons as joint mutawallis succeeding her. The deed stipulated that the net income of the wakf should be used for the maintenance of herself and her sons, with a direction that not more than half of the income could be spent by the wakif for her own use.

In July 1948 Kumar Rani travelled to Karachi. She returned to India from Pakistan in December 1948 on a temporary permit, but went back to Pakistan in April 1949. The Bihar Administration of Evacuee Property Ordinance, 1949 (Bihar Ordinance No III of 1949) came into force on 21 June 1949. On 2 September 1949 the Deputy Custodian of Evacuee Property issued a notification under section 5 of that ordinance, declaring that all the properties forming the wakf estate mentioned above had vested in the

The Deputy Custodian of Evacuee Property issued a notification on 2 September 1949 under section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949, declaring that the entire wakf estate constituted evacuee property and consequently took possession of it between 20 September and 2 October 1949. On 14 May 1950, Kumar Rani returned to India on a permanent permit that had been obtained from the High Commissioner for India in Pakistan. However, on 12 July 1950, the Deputy High Commissioner cancelled that permit, holding that it had been issued without the required concurrence of the Government as stipulated by the rules framed under the Influx from Pakistan (Control) Act, 1949. Following the cancellation, the Sub-Inspector of Police in Gaya issued a notice directing Kumar Rani to leave India by 31 July 1950 because her permanent permit was no longer valid. In response to these events, two separate applications were filed before the High Court of Patna: the first, dated 5 July 1950, contested the Deputy Custodian’s declaration that the wakf estate was evacuee property and the subsequent possession; the second, dated 28 July 1950, challenged the Sub-Inspector’s order directing Kumar Rani to depart the country. The first application was filed jointly by Kumar Rani and her three sons, while the second was filed solely by Kumar Rani. The High Court allowed both applications, and the State subsequently filed appeals against those rulings, which were granted leave by the High Court. These two related appeals were heard before this Court on 26 and 27 October 1953. After hearing counsel for both sides, the Court observed that an essential fact necessary for a proper decision in Appeal No. 97 had been assumed without investigation and that a factual finding was required after taking evidence. Consequently, the Court remanded Appeal No. 97 to the High Court for a finding and directed that, upon receipt of that finding, both appeals—Nos. 97 and 98—be heard together. The required finding has now been received, and the appeals have been reheard.

At this stage, it is necessary to note that the counsel who had appeared for the respondents in both appeals at the earlier hearing was present again and informed the Court that he had been instructed to withdraw his appearance, thereby allowing the hearing to continue ex parte. Having set out the preliminary facts, the Court will now consider the two appeals separately. Appeal No. 98 raises the fundamental question of Kumar Rani’s continuing citizenship, and therefore it will be addressed first. Civil Appeal No. 98 of 1952 arises from the application filed on 28 July 1950, which challenged the validity of the order dated 23 July 1950 issued by the Sub-Inspector of Police, Gaya.

The Court noted that the order issued by the Sub-Inspector of Police at Gaya on 23 July 1950 was challenged on the basis that Kumar Rani had been, and continuously remained, a citizen of India, and that the order, which effectively amounted to her externment from India, violated her fundamental right under article 19 of the Constitution as a citizen. The pivotal question therefore was whether Kumar Rani was a citizen of India at the date the order was made. Kumar Rani argued that, although she had travelled to Pakistan in 1948, the purpose of that visit was only temporary—to obtain medical treatment from a reputed Hakim—and that she had always retained her Indian citizenship. Consequently, she contended that the High Commissioner for India in Pakistan possessed no authority to cancel the permit that had been issued to her. The High Court, however, was not persuaded by her explanation that her initial trip to Karachi in July 1948 was for temporary medical reasons, but nevertheless held that she remained an Indian citizen because she was born in India and her domicile was that of her husband, Captain Maharaj Kumar Gopal Saran Narayan Singh, who throughout resided in India. The learned judges appeared to rely on article 5 of the Constitution, together with the English legal principle that a wife’s domicile follows that of her husband for the duration of the marriage. The Court observed that the High Court had apparently ignored article 7 of the Constitution. Article 5 provides that, at the commencement of the Constitution, every person whose domicile is in the territory of India and who was born in India shall be a citizen of India. By this reasoning, the High Court concluded that Kumar Rani, being Indian-born and sharing her husband’s domicile, qualified as a citizen. However, article 7 states that, notwithstanding article 5, any person who migrated from India to the territory now forming Pakistan after 1 March 1947 shall not be deemed to be a citizen of India, subject to a proviso. Before analysing the effect of that proviso, the Court set out certain material facts recorded in the proceedings: (1) Kumar Rani travelled to Karachi in July 1948; (2) the High Court had expressed doubt about the authenticity of her claim that the visit was only for temporary medical treatment; and (3) further facts would be considered in the subsequent discussion.

The Court observed that the claimant’s explanation for her travel to Karachi was without foundation. When she re-entered India in December 1948, she did so on a temporary permit, and in the application for that permit she declared herself domiciled in Pakistan, thereby representing herself as a Pakistani national. She subsequently returned to Pakistan in April 1949 after the temporary permit had expired. Only after the relevant property had been vested in the Custodian and possession taken did she seek a permit for a permanent return to India. These facts leave no doubt that she migrated from Indian territory after the first of March 1947. Even assuming that Article 5 might apply to her on the basis that Captain Narayan Singh was her husband and that she shared his domicile, the factual matrix nonetheless subjects her to Article 7. Article 7 expressly supersedes Article 5, is absolute in its reach and makes no exception for a situation where a wife migrates to Pakistan while her husband remains in India. Accordingly, a wife in such circumstances must be treated as not a citizen of India unless her case falls within the proviso to Article 7. The proviso reads: “Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law.” It was argued that, because she had returned under a permanent permit, she was entitled to the benefit of the proviso and that the later cancellation of that permit was illegal and irrelevant. However, Rule 10 of the Permit System Rules, 1949—made under section 4 of the Influx from Pakistan (Control) Act, 1949—stipulates that a permanent-resettlement permit may be granted by the High Commissioner or Deputy High Commissioner only after obtaining the agreement of the State or Province where the applicant intends to settle. Rule 29 further provides that any permit issued under those rules may be cancelled at any time without assigning any reason. In this case, the permit was cancelled by a reasoned order on the ground that the consent of the concerned State Government had not been secured before the permit’s issuance. Hence, the situation does not involve a valid permanent permit that was later arbitrarily revoked; rather, it involves the issuance of an unauthorized, invalid permit that was correctly cancelled. Consequently, the proviso to Article 7 cannot be invoked, and the applicant remains outside the protection of that exception.

In this case the Court observed that Kumar Rani was not a citizen of India and consequently the order issued by the Sub-Inspector of Police at Gaya on 23 July 1950, which directed Kumar Rani to leave the territory of India, was legally valid. The Court therefore concluded that the appeal challenging that order must succeed. The appeal in question is Civil Appeal No 97 of 1952. It arose from an application filed before the High Court on 5 July 1950, wherein the appellant contested the validity of a notification dated 2 September 1949. That notification had been issued by the Deputy Custodian pursuant to the Bihar Administration of Evacuee Property Ordinance, 1949, and it declared the wakf estate in question to be “evacuee property” and placed the estate under the custody of the Deputy Custodian. The appellant raised three principal grounds of contest. First, it was pleaded that Kumar Rani was not an evacuee within the meaning of the Ordinance. Second, it was submitted that Kumar Rani had, by a letter dated 2 June 1949 addressed to her second son Kumar Fateh Singh, relinquished her office as mutwalli of the wakf estate; consequently, under the terms of the original deed of wakf, her three sons—identified as respondents 1, 2 and 3—had become joint mutwallis and thereby the owners of the beneficial interest in the wakf estate. It was undisputed that these three sons had remained in India throughout the relevant period, and the appellant argued that at the date of the 1949 notification the property therefore belonged to the three sons and not to Kumar Rani, rendering the Ordinance inapplicable. The third ground asserted that the Bihar Administration of Evacuee Property Ordinance, 1949, could not be applied to wakf property or to the beneficial interest of the mutwalli therein.

The Court then turned to the first ground and examined the definition of “evacuee” contained in the Bihar Administration of Evacuee Property Ordinance, 1949, which provides: “A person 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 November, 1946, left, any place in the Province of Bihar for any place outside the territories now forming part of India.” The Court noted that, as already established in the earlier findings, Kumar Rani migrated from India to Pakistan after 1 March 1947. Because her explanation for the migration had not been accepted, the Court held that she could properly be said to have left India for Pakistan under the circumstances described in the definition and after the prescribed date. Accordingly, the Custodian was correct in treating her as an “evacuee.” Regarding the second ground, the Court observed that the claim of relinquishment of the mutwalli office by Kumar Rani, and the alleged vesting of the wakf interest in her three sons as joint mutwallis, was founded upon a letter purportedly addressed to her second son, Kumar Fateh Singh, and dated 2 June 1949. The Court emphasized that the genuineness of that letter was a material issue, noting that it would have to be established before any conclusion could be drawn about the transfer of beneficial interest. The Court therefore indicated that the authenticity of the letter was a crucial factual point that needed to be resolved.

The authenticity of the letter dated 2 June 1949, which purported to have been written by Kumar Rani, was placed in dispute. The question of whether the letter was genuine was referred by this Court to the High Court for determination, as directed by an earlier order of this Court. After the remand, the High Court conducted a hearing, took evidence on the issue, and examined the material presented. Upon consideration of the evidence, the High Court concluded unequivocally that the letter was not genuine. This Court has reviewed the High Court’s finding together with the supporting material and finds no reason to reject that conclusion. Consequently, the argument that the letter was authentic lacks any substantive basis and must be rejected.

The third contention concerns the scope of the term “evacuee property” as defined in the Bihar Administration of Evacuee Property Ordinance, 1949. That Ordinance defined the phrase as follows: “Evacuee property means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument.” The contention advanced was that this definition should not be applied to the wakf property or to the beneficial interest of the mutwalli, and therefore the property in question should not have vested in the Custodian. It is necessary to note that the original notification vesting the wakf property in the Custodian was made under section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949. That Ordinance was subsequently repealed by section 55(2) of Central Ordinance No. XXVII of 1949. The Central Ordinance defined “evacuee property” as “any property in which an evacuee has any right or interest, whether personal or as a trustee or as beneficiary or in any other capacity.” The Central Ordinance was later repealed by Central Act No. XXXI of 1950, which defined “evacuee property” to mean “any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity.” The Act also defined “property” as “property of any kind and includes any right or interest in such property.” Both the Central Ordinance and the Central Act contain section 8(2), which provides that where, immediately before the commencement of the Ordinance or Act, any evacuee property in a Province had vested in a person exercising the power of Custodian under any repealed law, such property shall, on commencement of the new Ordinance or Act, be deemed to have vested in the Custodian appointed or deemed to have been appointed for the Province and shall continue to vest in that Custodian. The definitions of “evacuee property” in the Central Ordinance and the Central Act are clear and unambiguous, expressly encompassing the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to infer that the Bihar Ordinance intended a narrower construction. The language used in that definition is sufficiently broad to include wakf property and the attendant interests, and the subsequent legislative repeals and continuance of vesting in the Custodian leave no doubt as to the applicability of the definition.

In this case the Court observed that the definition contained in the Bihar legislation was intended to include wak property together with any interest that might exist in such property. The Court further explained that the Bihar Ordinance had subsequently been repealed first by the Central Ordinance and later by the Central Act, and that despite those repeals the vesting of the property in the Custodian continued in accordance with the provisions of the later statutes. This sequence of legislative changes, the Court held, removed any uncertainty and placed the legal position beyond doubt. Accordingly, the Court concluded that the contention raised by the opposing party could not succeed and therefore had to fail. On the basis of that conclusion the Court determined that the appeal lodged by the appellant must be allowed. As a consequence of the Court’s finding, the order was made that both pending appeals be allowed in their entirety. The Court further directed that the appellant would be entitled to recover only those costs that had been incurred before the High Court in connection with the remand order made in Civil Appeal No. 97 of 1952. In summary, the Court allowed both appeals and limited the award of costs to the specified portion of the litigation expenses.