Abdul Hakim Khan And Others vs The Regional Settlement Commissioner

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

Court: Supreme Court of India

Case Number: Petition No. 91 of 1956

Decision Date: 22 March 1961

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

In this case the Supreme Court of India examined a petition filed under article 32 of the Constitution that sought to enforce fundamental‑rights claims against orders dated 14 August 1952 and 23 March 1954; the judgment was delivered on 22 March 1961 and the author of the report was A K Sarkar. The bench that heard the matter consisted of A K Sarkar, Bhuvneshwar P Sinha, S K Das, N Rajagopala Ayyangar and J R Mudholkar. The petitioners were Abdul Hakim Khan and others and the respondent was the Regional Settlement Commissioner. The case is reported at 1961 AIR 1391 and 1962 SCR (1) 531, and it is cited in later authorities such as 1965 SC 1885 (3,6). The dispute involved the Evacuee Property‑Declaration of share in joint property and separation proceedings, specifically the legality of an order made under section 11 of the Evacuee Interest (Separation) Act 1951 (64 of 1951) that vested the entire property in the Custodian. The headnote summarises that a Muslim died leaving immovable property and several heirs; some heirs became evacuees and their four‑sevenths share was declared evacuee property under section 7 of the Administration of Evacuee Property Act 1950. Subsequent separation proceedings were instituted, but because none of the claimants appeared, the Competent Officer issued an order under section II of the Evacuee Interest (Separation) Act 1951 that vested the whole property in the Custodian. The Court held that such an order was illegal because the evacuees’ share had already been fixed at four‑sevenths and section II could not transfer any portion that was not declared evacuee property; that section applies only where the entire property is declared evacuee property and where a claim as mortgagor, mortgagee or to an undivided share is absent or unsustainable, in which case the whole property may vest in the Custodian. The decision referred to Ebrahim Aboobaker v. Tek Chand Dolwani [1953] SCR 691. The original jurisdiction was Petition No 91 of 1956, a petition under article 32 for enforcement of fundamental rights. Counsel for the petitioners included S P Sinha, Shaukat Hussain, E Udayarathnam and S S Shukla, while N S Bindra, R H Dhebar and T M Sen represented respondents 1 to 4. The Court’s judgment, delivered by Justice Sarkar, began by stating that Abdul Hai died about 1943, leaving certain immovable properties. He had three wives and children by each; one wife predeceased him. On his death the surviving wives and children succeeded to the properties in specific shares. One of the surviving wives and a daughter later died. The remaining wife of Abdul Hai and her six children migrated to Pakistan at an unspecified time, became evacuees, and their shares could properly be declared evacuee property. A notice under section 7 of the Administration of Evacuee Property Act 1950 was subsequently issued for that purpose.

In this case the Administration of Evacuee Property Act, 1950 was invoked to declare certain persons as evacuees and to designate their shares in the disputed immovable properties as evacuee property. Following the issuance of the declaration notice, the authorities commenced proceedings and, on 14 August 1952, issued an order that formally identified the migrants as evacuees and assigned a four‑sevenths share in selected properties to them as evacuee property. Subsequent to that order, additional proceedings were instituted under the Evacuee Interest (Separation) Act, 1951, culminating in an order dated 23 March 1954 made pursuant to section 11 of that Act, which transferred the full ownership of the properties referred to in the 1952 order to the Custodian of Evacuee Properties, Bhopal. The petitioners, who invoked article 32 of the Constitution, challenged the legality of both the 14 August 1952 order and the 23 March 1954 order on the ground that the orders infringed their fundamental right to hold property, specifically their undivided shares in the properties that had been vested in the Custodian. The petition was filed by the surviving children of Abdul Hai born of his two deceased wives, with the exception of Abdul Aziz, who was named as a respondent but did not oppose the petition. It was uncontested that neither the petitioners nor Abdul Aziz were ever declared evacuees and that they were entitled to undivided shares in the properties that the Custodian now claimed to hold in their entirety. The remaining respondents, namely the Government of India and the officials charged with administering the two Acts, were collectively described as the respondents for brevity. The first question presented before the Court concerned the validity of the order dated 14 August 1952 issued under the 1950 Act. The petitioners argued that the order was a nullity because the notice issued under section 7 of the Act had been addressed to Abdul Aziz, who, by admission, was not an evacuee. The Court observed that it was unnecessary to resolve that argument, as the issue did not pertain to the petitioners’ interests; the proceedings under the 1950 Act were not intended to affect the petitioners’ shares, and consequently they could not challenge the order. Moreover, the Court reiterated that it was not disputed that the shares belonging to the surviving wife of Abdul Hai and her six children could rightfully be declared evacuee property, given their migration to Pakistan. The 14 August 1952 order merely declared those shares as evacuee property and, by that limited declaration, did not impair any right of the petitioners.

The second question raised before the Court concerned the order dated 23 March 1954, which had been made under the Evacuee Interest (Separation) Act, 1951. That order transferred the entire title of the properties left by Abdul Hai, including the petitioners’ undivided shares, to the Custodian as evacuee property, thereby directly affecting the petitioners’ proprietary rights. The Court found that the petitioners’ grievance with respect to the 23 March 1954 order was substantial because the order effectively extinguished their legal interest in the properties without any adjudication on their claim. Consequently, the Court held that the order, as it stood, could not be sustained against the petitioners’ constitutional right to hold property and required further judicial scrutiny. The Court therefore declined to uphold the order and indicated that it must be set aside or modified to protect the petitioners’ vested interests.

The Court observed that the order under challenge could not be set aside because it had been issued pursuant to section eleven of the 1951 Act. That statute, the Court explained, was 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 to the Act. The legislation creates a designated official known as the “Competent Officer” who is empowered to carry out the required separation of interests. The disputed order had been made by that very officer.

In order to understand the scope of the officer’s power, the Court turned to the definitions contained in the Act. Section two, sub‑paragraph (d), defines “composite property.” The definition reads in full: “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 who is not an evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form in favour of a person who is not an evacuee; or (iii) in which the interest of a person who is not an evacuee is subject to mortgage in any form in favour of an evacuee.” Section two, sub‑paragraph (b), defines a “claim.” The provision states: “Claim” means the assertion by any person who is not 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 six authorises the Competent Officer to issue notices, for the purpose of determining or separating the evacuee interest in a composite property, requiring any person who claims an interest in such property to submit his claim to the officer. Section seven then prescribes the procedure, form and time within which such claims must be made. Under section eight, upon receipt of a claim, the Competent Officer is required to make inquiries in the manner prescribed and to pass an order that determines both the evacuee’s interest and the claimant’s interest in the property. The order must contain, among other things, the following particulars: (1) where the evacuee and the claimant are co‑sharers or partners, their respective shares in the property and the monetary value of those shares; (2) where the claim is made by a mortgagor, the amount due to the evacuee; and (3) where the claim is made by a mortgagee, the amount due under the claim in accordance with the provisions of section nine. Finally, subsection two of section eight provides that when the Custodian under the Administration of Evacuee Property Act, 1950 has determined that the property in question or any interest in it is evacuee property, the decision of the Custodian shall be binding on the Competent Officer, subject only to the limited exceptions later stipulated.

The judgment explained that once the Custodian makes a decision under the Act, that decision must be followed by the Competent Officer; however, the provision also makes clear that this requirement does not prevent the Competent Officer from independently determining any mortgage debt that may be due on the property or from separating the evacuee’s interest from the claimant’s interest pursuant to section ten. Section nine, the Court noted, governs claims that mortgagees may assert over evacuee property. Section ten, on the other hand, confers on the Competent Officer the authority to disentangle the rights of an evacuee from those of a claimant. In particular, the statute empowers the Officer, where a co‑sharer makes a claim, to take one of several actions: first, to order the Custodian to pay the claimant the monetary amount assessed for the claimant’s share in the composite property, or alternatively to place that amount in a civil court that has jurisdiction over the property, while also delivering possession of the property to the Custodian, allowing the claimant to withdraw the deposited sum from the civil court; second, to transfer the entire property to the claimant provided the claimant pays the amount that has been assessed for the evacuee’s share; third, to sell the property and to divide the proceeds between the Custodian and the claimant in proportion to the respective shares of the evacuee and the claimant; and fourth, to partition the property according to the shares of the evacuee and the claimant and to deliver possession of each allotted share to the Custodian and to the claimant respectively. The Court then turned to section eleven, which in certain situations vests the whole property in the Custodian. The order that is presently before the Court was issued under this section, and the Court indicated that it would set out the details of that order later. According to the respondents, notices required under section six of the Evacuee Interest (Separation) Act 1951—both general notices and special notices addressed specifically to the petitioners—had been issued asking any interested parties to submit claims concerning the property, but no claim was filed by anyone. The respondents’ counsel introduced a copy of one such notice, which read in part: “Subject: 105.10 acres agricultural land and one house in village Junapari, Tahsil Berasia (four‑sevenths share of Abdul Aleem etc. evacuees). To Shri Abdul Aziz and his two brothers, village Junapani (Tahsil Berasia). FORM C. WHEREAS information has been received that you have an interest in the composite property described in the schedule annexed hereto. AND WHEREAS the evacuee interest in the said property is to be separated from other interests. I NOW hereby call upon you to submit your claim to me in the prescribed form within sixty days from the date of this notice.” The notice identified Abdul Aleem, who is one of the children of Abdul Rai, a person who had vacated for Pakistan. The order that the Competent Officer issued under section eleven of the 1951 Act was based on the circumstances described in that notice.

On 23 March 1954 the Competent Officer issued an order that recorded that notices inviting claims had been sent but that no claim had been filed. The order then concluded that no claim had been filed deliberately even though an individual notice had been served by post with a postal certificate. It further stated that the whole composite property listed by the Custodian would therefore vest free of all encumbrances and liabilities in the Custodian pursuant to section 11 of the Evacuee Interest (Separation) Act 1951. The petitioners challenged the validity of that order. They acknowledged that they had not filed any claim, but they denied that any notice had ever been served on them and they also questioned the validity of the notice itself. The Court said that it was not necessary to examine the question of whether the notice was valid, because even assuming that the notice had been valid, the order that was being challenged could not be sustained. The real issue, the Court held, was whether the order was justified under section II of the 1951 Act. That provision read as follows: “Section 11(1) – Where in respect of any property a notice under section 6 is issued but no claim is filed or found to exist, or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under section 10, the whole property, or as the case may be the evacuee interest in the property thus separated, shall vest in the Custodian free from all encumbrances and liabilities, and any payment, transfer or partition made or effected under section 10, in satisfaction of any claim in respect of the property, shall be a full and valid discharge of all claims in respect of the property.” The respondents argued that because a notice under section 6 had been issued and no claim had been filed, the entire property had to vest in the Custodian and therefore the order of the Competent Officer was valid. The Court found that argument to be based on a misreading of the provision. Notices issued under section 6 are sent “for the purpose of determining or separating the evacuee interest in a composite property.” Accordingly, the purpose of a notice may be either to determine the evacuee interest or to separate the evacuee interest, and these two purposes are distinct. The Act treats them as separate matters, as shown by the definitions of composite property and by sections 8, 9 and 10. Determination of the evacuee interest arises when the interest is a mortgagor’s or mortgagee’s interest in the property, or when an undivided share exists but its extent is unknown. In such cases the determination is made according to clauses (b), (c) and (d) of section 8(1), which ascertain the quantum of the interest as mortgagor, mortgagee or co‑sharer, as appropriate. By contrast, a question of separation of interest can arise only when the interest is already known, and such separation is carried out under section 10.

In the present matter the Court explained that a separation of interest may arise, for instance, when an evacuee is shown to possess a specific undivided share in a piece of property. Such a definite undivided share can be discovered either through an enquiry conducted under section 8 of the Act of 1951 or by virtue of an order issued by the Custodian pursuant to paragraph 7 of the Act of 1950. In the facts before the Court the Custodian, relying on section 7 of the Act of 1950, had determined that the evacuees were entitled only to a four‑sevenths share in certain properties, a conclusion that is reflected in the notice issued under section 6 of the Act of 1951 and reproduced earlier in the judgment. Section 8(2) provides that a declaration made by the Custodian under the 1950 Act, stating that any interest in property is evacuee property, binds the Competent Officer; however, that provision does not stop the Officer from carrying out a separation of the evacuee’s interest from that of a claimant in accordance with section 10. The notice in the instant case was expressly issued for the purpose of effecting such a separation. Consequently, the Court held that section 11 of the Act of 1951 must be interpreted read together with the preceding sections. In doing so, it was necessary to remember that the purpose of the 1951 Act is not to vest in the Custodian any property that does not belong to an evacuee, but merely to vest in the Custodian the evacuee’s interest after that interest has been determined or separated from the interests of other persons as prescribed by the statute. The Court also recalled its earlier decision that no property vests in the Custodian unless proceedings under section 7 of the 1950 Act have been instituted, as affirmed in Ebrahim Aboobaker v. Tek Chand Dolwani (1). Accordingly, section 11 cannot be read to vest in the Custodian property that is not evacuee property, nor can it be construed to make the entire property vest in the Custodian when the order under section 7 of the 1950 Act declared only a particular share to be evacuee property. The Court explained that when section 11 provides for vesting the whole property in the Custodian in the absence of a claim, or where a claim has been filed but found untenable, the statute is dealing with a scenario where the claim concerns a mortgagor, a mortgagee, or an undivided share and where the order under section 7 of the 1950 Act has declared the whole property to be evacuee property. If section 11 were read otherwise, it would allow property that does not belong to an evacuee to be vested in the Custodian, a result that the Court held could not have been intended by the legislature and would run contrary to its earlier decision. Therefore, the Court concluded that section 11 does not justify the order dated 23 March 1954, which attempted to vest the entire properties in the Custodian.

Although the order issued under Section 7 of the Act of 1950 had found that only a share equal to four sevenths of the property in question was evacuee property, the Court noted that the respondent had not advanced any argument that the petition was non‑maintainable. Because the respondent did not challenge the maintainability of the petition, the Court chose not to examine that aspect of the matter and expressly clarified that it was not deciding any issue relating to the petition’s maintainability. Having therefore left the maintainability question untouched, the Court set aside the order dated 23 March 1954. The Court further observed that no order as to costs would be made in these proceedings. In addition, the Court stated that the present order would not hinder the proper steps that must be taken to separate the evacuee’s interest from the remaining portion of the properties, and that such separation should be carried out in accordance with the provisions of the Act of 1951 as well as any other relevant legal provisions. Accordingly, the petition was allowed.