Abdul Hakim Khan And Ors. vs The Regional Settlement Commissioner

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 22 March, 1961

Coram: B.P. Sinha, A.K. Sarkar, J.R. Mudholkar, N. Rajgopala Ayyangar, S.K. Das

In the matter titled Abdul Hakim Khan and others versus the Regional Settlement Commissioner, the Supreme Court of India heard arguments on 22 March 1961. The bench hearing the case comprised Justice B. P. Sinha, Justice A. K. Sarkar, Justice J. R. Mudholkar, Justice N. Rajgopala Ayyangar and Justice S. K. Das, and the judgment was delivered by Justice A. K. Sarkar. The factual background began with the death of one Abdul Hai around the year 1943. At the time of his death he owned certain immovable properties. He had been married three times and had children by each of his wives. One of the three wives died before Abdul Hai, leaving her share in the estate to be dealt with at his death. When Abdul Hai died, the surviving wives and all of his children who were alive at that moment succeeded to his property in shares that were allocated among them according to the prevailing rules of succession. Subsequent to this distribution, one of the surviving wives succumbed to death, as did one of the daughters who had inherited a portion of the estate. These later deaths altered the composition of the heirs but did not affect the legal title to the property, which remained held collectively by the surviving spouses and children.

The remaining wife of Abdul Hai, together with her six children, eventually migrated to Pakistan; the precise date of their migration was not recorded in the material before the Court. Nevertheless, it was not contested that the wife and her children had become evacuees under the relevant statutory scheme, and that their respective shares in Abdul Hai’s immovable properties could lawfully be declared evacuee property. To that effect, a notice was issued under section 7 of the Administration of Evacuee Property Act, 1950, specifically for the purpose of designating these persons as evacuees and classifying their interests in the property as evacuee property. Following that notice, proceedings were instituted and, on 14 August 1952, an order was passed which formally declared the migrants to be evacuees and identified a four‑sevenths share in certain immovable properties as evacuee property belonging to them. Subsequent to that order, further proceedings were initiated under the Evacuee Interest (Separation) Act, 1951. By virtue of an order dated 23 March 1954, made under section 11 of that Act, the entirety of the properties referred to in the 14 August 1952 order was vested in the Custodian of Evacuee Properties, Bhopal, thereby transferring full legal ownership of those assets to the Custodian.

The petitioners, invoking article 32 of the Constitution, challenged the validity of both the 14 August 1952 order and the 23 March 1954 order. Their contention was that the two orders infringed upon their fundamental right to hold property, specifically their undivided shares in the properties that were the subject of the orders. The petition was filed by the surviving children of Abdul Hai who were born to his two deceased wives, with the sole exception of Abdul Aziz, who, although named as a respondent, did not oppose the relief sought. It was not in dispute that neither the petitioners nor Abdul Aziz had ever become evacuees, and consequently they were entitled to retain undivided shares in the properties that had been declared to have vested wholly in the Custodian. The respondents opposing the petition comprised the Government of India and various officers responsible for the administration of the relevant Acts; for brevity, these parties were collectively referred to as “the respondents.”

The first question framed before the Court concerned the validity of the order dated 14 August 1952, which had been issued under the Administration of Evacuee Property Act, 1950. The petitioners argued that the order should be treated as a nullity because the notice issued under section 7 of that Act, on which the order was based, had been served upon Abdul Aziz, who was, as the parties admitted, not an evacuee. The Court observed that it was unnecessary to resolve this issue, as the question of the notice’s validity and the consequent status of the 1952 order did not affect the petitioners’ rights. In other words, the proceedings under the 1950 Act did not purport to alter the petitioners’ interest in the properties, and therefore the petitioners could not challenge the order on that basis. The Court further noted that the shares belonging to the surviving wife of Abdul Hai and her children could properly be declared evacuee property because of their migration to Pakistan, and that the 14 August 1952 order merely declared those shares to be evacuee property without impinging on the petitioners’ own rights.

In this case, the Court observed that the petitioners were not affected by the proceedings under the 1950 Act because those proceedings did not purport to affect their interest in the properties, and consequently they could not challenge the order made under that Act. The Court further noted that it was not contested that the shares of the surviving wife of Abdul Hai and her children could correctly be declared evacuee property under the Act, since they had migrated to Pakistan. The order dated 14 August 1952 merely declared those alleged shares to be evacuee property, and by making such a declaration no right of the petitioners was altered.

The second issue raised before the Court concerned the order dated 23 March 1954, which was made under the 1951 Act. That order vested the entire property left by Abdul Hai, including the petitioners’ shares, as evacuee property, and therefore directly affected the petitioners. The Court found that the petitioners’ grievance with respect to that order was substantial and that the order, as it stood, could not be sustained. The Court explained that the order was made under section 11 of the 1951 Act, an Act enacted “to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested,” as set out in the preamble. The Act creates a “Competent Officer” to effect such separation, and the disputed order was issued by such an officer.

Section 2(d) of the 1951 Act defines “composite property.” For the purposes of this judgment, the definition is as follows: “composite property” means any property which, or any property in which, an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950) and – (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co‑sharer or partner of any other person, not being an evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form, in favour of a person, not being an evacuee; or (iii) in which the interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; ….” Section 2(b) defines a “claim” as follows: “Claim” means the assertion by any person, not being an evacuee, of any right, title or interest in any property – (i) as a co‑sharer or partner of an evacuee in the property; or (ii) as a mortgagee of the interest of an evacuee in the property; or (iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee; ….” Section 6 empowers a Competent Officer to issue notices, for the purpose of determining or separating the evacuee interest in a composite property, requiring persons claiming interest in any such property to submit their claims to him. Section 7 then prescribes the procedure and form of making those claims.

Section 8 required that, upon receiving a claim, the Competent Officer conduct an enquiry in the manner and then issue an order defining the interests of both the evacuee and the claimant in the property. The order was mandated to contain, among other details, specific particulars depending on the nature of the claimant’s relationship to the property. If the evacuee and the claimant were co‑sharers or partners, the order had to state their respective shares and the monetary value of each share. When the claim originated from a mortgagor, the order needed to specify the amount payable to the evacuee. When the claim originated from a mortgagee, the order had to indicate the sum due under the claim in accordance with the provisions of section nine. Section eight, sub‑section two, provided that the Custodian’s determination that a property or interest therein was evacuee property bound the Competent Officer. However, the sub‑section also allowed the Competent Officer to still assess any mortgage debt related to the property and to separate the evacuee’s interest from the claimant’s interest under section ten. Claims made by mortgagees against evacuee properties were governed by section nine. Section ten empowered the Competent Officer to separate the interests of the evacuee from those of the claimant and enumerated several possible courses of action. In a co‑sharer claim, the Officer could order the Custodian to pay the claimant the monetary amount for his share, or to deposit that amount in a civil court having jurisdiction over the property. Alternatively, the Officer could transfer the whole property to the claimant upon receipt of payment equal to the assessed value of the evacuee’s share. The Officer also had authority to sell the property and allocate the proceeds between the Custodian and the claimant in proportion to their respective shares. A further option permitted the Officer to partition the property according to the shares of the evacuee and the claimant, delivering possession of each portion to the Custodian and the claimant respectively. Section eleven, in certain situations, allowed the entire property to be vested in the Custodian, and the order presently under consideration was issued under this provision. The respondents argued that notices issued under section six of the 1951 Act, both general and special, had been served but no person had filed any claim.

According to the counsel for the respondents, notices issued under section six of the Evacuee Interest (Separation) Act, 1951, were sent to the petitioners requesting that they submit claims concerning the properties in question, yet no claim was filed by any party. The respondents produced a specimen of one such notice, which was formatted as follows: the subject line identified “105.10 acres agricultural land and one house in village Junapari, Tahsil Berosia (4/7 share of Abdul Aleem etc. evacuees)”. The notice was addressed to Shri Abdul Aziz and his two brothers of village Junapani, Tahsil Berosia, and began with the statement that information had been received indicating that they possessed an interest in the composite property described in the attached schedule. It further declared that the evacuee’s interest in that property was to be separated from other interests and commanded the addressees to submit their claim in the prescribed form within sixty days from the date of the notice. The name Abdul Aleem appearing in the notice referred to one of the children of Abdul Hai, who had evacuated to Pakistan. On the basis of the claim that such notices had been issued but remained unresponded to, the Competent Officer issued an order under section eleven of the 1951 Act on 23 March 1954. The order recorded that notices inviting claims had indeed been served, yet no claim had been filed, and it concluded that “it is proved that no claim is filed deliberately though the individual notice has been served by post under a postal certificate.” Consequently, the order declared that the entire composite property listed by the Custodian would vest free of all encumbrances and liabilities in the Custodian pursuant to section eleven of the Evacuee Interest (Separation) Act, 1951. The petitioners challenged the validity of this order. While they admitted that they had not filed any claim, they denied that any notice had been served upon them and raised other objections to the order’s legality. The Court observed that it was unnecessary to adjudicate on the propriety of the notice itself, because even assuming the notice to have been validly served, the order under scrutiny could not be sustained.

The central issue before the Court was whether the order was justified under section eleven of the 1951 Act. Section eleven(1) provides that where a notice under section six is issued concerning any property and either no claim is filed or no claim is found to exist, or where a claim does exist and the competent officer separates the evacuee’s interest under section ten, the whole property—or, as the situation may require, the evacuee’s interest that has been separated—shall vest in the Custodian free of all encumbrances and liabilities. Furthermore, any payment, transfer, or partition effected under section ten in satisfaction of a claim shall constitute a full and valid discharge of all claims relating to the property. The respondents argued that because a notice under section six had been issued and no claim was subsequently filed, the entirety of the property was required by the statute to vest in the Custodian, rendering the order of the Competent Officer valid. The Court was tasked with interpreting whether this statutory provision supported the order, taking into account the nature and purpose of the notice, the statutory mechanism for separating an evacuee’s interest, and the procedural requirements set out in the Act.

The Court held that the order issued by the Competent Officer could not be sustained because the contention advanced by the respondents relied on an incorrect interpretation of section 11 of the 1951 Act. Section 6 of that Act, the Court explained, authorises the issuance of notices “for the purpose of determining or separating the evacuee interest in a composite property”. Consequently, a notice under section 6 may have one of two distinct objectives: either to determine what portion of the composite property belongs to the evacuee, or to separate that evacuee portion from the rest of the property. These two objectives are fundamentally different, and the Act treats them separately, as is evident from the definition of “composite property” and from the provisions contained in sections 8, 9 and 10. Determination of the evacuee interest becomes necessary when the interest in question is a mortgagor’s or mortgagee’s stake, or an undivided share whose exact extent is uncertain. In such cases, the quantum of the interest is ascertained pursuant to clauses (b), (c) and (d) of section 8(1), which direct the authorities to measure the interest as that of a mortgagor, mortgagee or co‑sharer, as appropriate. By contrast, a request for separation of interest can arise only after the nature of the interest has been identified; the separation is carried out under section 10 of the Act. For example, separation is required when the evacuee is found to hold a definite undivided share in the property.

The Court observed that an evacuee may acquire a definite undivided share either through an enquiry conducted under section 8 of the 1951 Act or by virtue of an order made by the Custodian under section 7 of the 1950 Act. In the case before the Court, the Custodian, relying on section 7 of the 1950 Act, had concluded that the evacuees were entitled only to a four‑sevenths share in certain properties. This conclusion is reflected in the notice issued under section 6 of the 1951 Act, which the Court had reproduced earlier. Section 8(2) provides that a declaration by the Custodian, made under the 1950 Act, that any interest in a property constitutes evacuee property, is binding on the Competent Officer. However, that provision does not prohibit the Competent Officer from effecting a separation of the evacuee’s interest from that of any claimant under section 10. In the present matter, the notice in question was expressly issued for the purpose of separation, not merely for determination.

Turning to section 11 of the 1951 Act, the Court emphasized that this provision must be read in harmony with the preceding sections. The Court also reminded that the primary purpose of the 1951 Act is not to vest the entire property in the Custodian when the property is not evacuee property; rather, the Act intends to vest only the evacuee interest in the property in the Custodian after that interest has been determined or separated in accordance with the procedural scheme laid down in the Act. Moreover, the Court noted that it has previously held, in Ebrahim Aboobaker v. Tek Chand Dolwani [1953] S.C.R. 691, that no property vests in the Custodian unless proceedings under section 7 of the 1950 Act have been initiated. Consequently, section 11 cannot be construed to vest in the Custodian any portion of a property that has not been declared evacuee property under the 1950 Act. The Court therefore concluded that section 11 does not support the order dated 23 March 1954, which sought to vest the whole property in the Custodian despite the earlier determination that only a specific share was evacuee property.

The Court explained that Section 11 of the Act of 1951 cannot be interpreted to vest in the Custodian any part of a property that was never declared evacuee property. In other words, the provision must not cause the whole of a piece of land to become the Custodian’s by virtue of it being treated as evacuee property when, under Section 7 of the Act of 1950, the order had identified only a specific share of that land as evacuee. Accordingly, when Section 11 causes the entire property to vest in the Custodian, this situation can arise only if either no claim concerning the property has been filed, or a claim has been filed but has been rejected as untenable. The Court further observed that such a vesting situation would typically involve a claim by a mortgagor, a mortgagee, or an interest in an undivided share, provided that the order under Section 7 had already declared the whole property to be evacuee property. If the provision were read otherwise, it would allow land that does not belong to an evacuee to be transferred to the Custodian, a result that the Court held could not be the intention of the legislation and would contradict an earlier decision of this Court. Therefore, the Court concluded that Section 11 does not support the order dated 23 March 1954, which attempted to vest the entirety of the properties in the Custodian even though the Section 7 order had recognized only a four‑sevenths share as evacuee property.

The Court noted that the respondent had not raised any argument questioning the maintainability of the petition. Because no such contention was made, the Court did not examine the issue of whether the petition was maintainable and expressly clarified that it should not be understood as having decided any question relating to the petition’s maintainability. The absence of a challenge on that point meant that the Court’s focus remained on the proper interpretation of the statutory provisions and the validity of the order under review, without venturing into procedural objections that were not pleaded.

In the final analysis, the Court set aside the order dated 23 March 1954. No order as to costs was made. The Court further directed that the setting aside of the order would not impede the appropriate legal steps required to separate the evacuees’ interest from the remaining interest in the properties, to be carried out in accordance with the Act of 1951 or any other relevant law. Finally, the petition was allowed.