Appeal No 124 of 1963
Appeal by special leave from the judgment and order dated January 22 1962 of the Deputy Custodian General of India New Delhi No 472RUP1961
section section Shukla for the appellant
Gopal Singh and R N Sachthey for the respondent
From time to time execution applications were filed by the decree holder against the Zamindar but nothing was recovered
Rani Manraj Koer died on October 1 1941 and the appellant was brought on the record as her heir and legal representative
Nawab Mohammad Ali Khan Qazilbash also died and five persons amongst whom was one Nawab Ali Raza Khan were impleaded as legal representatives in the execution proceedings
In January 1950 Nawab Ali Raza Khan Talukdar of Aliabad Estate who was substantially the only judgment debtor from whose estate the amounts due were liable to be recovered migrated to Pakistan and he was declared an evacuee under the provisions of the Administration of Evacuee Property Ordinance 27 of 1949 which was later replaced by the 31 of 1950
The Custodian of Evacuee Property took possession of the estate of the evacuee and applied to the Civil Judge Lucknow for removal of attachment levied on the estate by the Civil Judge Bahraich in execution of the decrees at the instance of the appellant
The Civil Judge Lucknow by order dated July 22 1950 directed that the transfer certificates issued in the two decrees be recalled and the papers be consigned to the record
Against the order passed by the Civil Judge Lucknow appeals were preferred by the appellant to the High Court at Allahabad
By order dated February 22 1960 the High Court held that after the Custodian entered upon the management of the properties of the evacuee by virtue of section 17 of the Administration 306 of Evacuee Property Act so long as the property remained vested in the Custodian under the provisions of that Act it was not liable to be proceeded against in any manner whatsoever in execution of any decree or order of any court or other authority
On September 27 1960 the appellant applied to the Custodian for an order under section 102 n of the  directing that his claim for Rs 1276382under the two decrees in suits Nos 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to the estate of Nawab Ali Raza Khan
The Assistant Custodian General Evacuee Property UP Lucknow exercising the powers of the Custodian rejected the application holding that he had no power to grant relief to the appellant of the nature claimed
In exercise of his revisional jurisdiction the Custodian General Evacuee Property New Delhi confirmed the order and the appellant has with special leave appealed against that order
The question which falls to be determined in this appeal is whether the Custodian is entitled to entertain the claim of the holder of a money decree against the evacuee for satisfaction of his dues out of the assets vested in the Custodian by section 7 of the 
The Custodian held that he had no such power and the Custodian General agreed with him
Section 10 of the Act deals with the powers and duties of the Custodian generally
By sub section
1 it is provided  Subject to the provisions of any rules that may be made in this behalf the Custodian may take such measures as he considers necessary or expedient for the purposes of securing administering preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may for any such purpose as aforesaid do all acts and incur all expenses necessary or incidental thereto Sub section 2 provides  Without prejudice to the generality of the provisions contained in sub section 1 the Custodian may for any of the purposes aforesaid npay to the evacuee or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto any sums of money out of the funds in his possession 307 By Subs
2 of section 10 specific powers and duties of the Custodian are set out
It illustrates the general powers and duties under sub section
The argument that the expression any other person in cl
n must be construed ejusdem generis with evacuee or any member of his family has in our judgment no force
The rule of interpretation ejusdem generis applies where a general word follows particular and specific words of the same nature as it self  it has no application where there is no genus or category indicated by the Legislature
The clause is intended to confer upon the Custodian power coupled with a duty to pay to the evacuee or to any member of his family or to any other person who in the opinion of the Custodian is entitled to any sum of money out of the estate of the evacuee
The powers of the Custodian and the duties are undoubtedly to be exercised under sub section
2 for the purposes mentioned in sub section
1 ie for securing administering preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him
To ascertain the limits upon and extent of those purposes the position of the Custodian qua the estate of the evacuee vested in him must first be determined
Section 71 allies the Custodian to declare after enquiry any property as evacuee property within the meaning of the Act and the property so declared is deemed to vest in the Custodian from the date specified in section 8
But the vesting of the property in the Custodian is for the purposes of the Act ie for administration and management
By the vesting for purposes of the Act the Custodian does not become the owner of the property  he holds it for the evacuee and is bound to administer it in the manner provided by the Act
The appropriation of the property must depend upon statutory provisions enacted by the Parliament
By section 171 of the Act as amended by Act 22 of 1951 with retrospective operation it was provided that  Save as otherwise provided in this Act no evacuee property which has vested or is deemed to have vested in the Custodian under the provisions of this Act shall so long as it remains so vested be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any court or other authority and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencement of the Administration of Evacuee property Amendment Act 1951 shall cease to have effect on such commencement and shall be deemed to be 308 The second part of the sub section deals with avoidance of attachment or injunction or order for the appointment of a receiver in respect of any evacuee property subsisting on the date of the commencement of the Act of 1951 and the first part interdicts recourse to the evacuee property so long as it remains vested in the Custodian by process of any court or authority for obtaining satisfaction of any claim against the property
It is clear from the language of the section that whether the claim be against the evacuee or it is against the Custodian arising out of any acts of administration done by him the evacuee property cannot be attached in execution of any decree or order of any court or other authority
The Legislature has thereby completely excluded the jurisdiction of courts and authorities to execute decrees or orders passed against the Custodian or the evacuee to proceed against the property vested in the Custodian
The intention clearly is that the administration shall continue for the purposes of the Act without any interference by the process in execution of the decrees or orders of courts or other authorities
But it does not appear to be the intention of the Legislature that the Custodian should be entitled to collect the property of the evacuee and not be under an obligation to satisfy his debts and obligations
The argument of counsel for the Custodian that the Custodian is merely to manage the property and is not invested with power to pay the debts due by the evacuee or to discharge liabilities of the evacuee is not borne out by the terms and the scheme of section 10
The powers conferred and the duties imposed by section 101 are for the purposes of securing administering preserving and managing the evacuee property and there is no reason to attribute to the Legislature an attempt at tautology by assuming that administering is used in the same sense as the expression managing
Again sub section
2 makes it abundantly clear that the powers conferred and the duties imposed are not merely incidental to management as a statutory agent of the evacuee
For instance upon the Custodian is conferred the power to carry on the business of the evacuee with all the discretion which the carrying on of the business of the evacuee may necessitate  he is entitled to complete buildings which are required to be completed to keep evacuee property in good repair and to take action as may be necessary for the recovery of any debt due to the evacuee  see cls
d e and i of sub section
2 of section 10
Power is also conferred upon the Custodian by cl
j to institute defend or continue any legal proceeding in any civil or revenue court on behalf of the evacuee  he is given the power to refer disputes between the evacuee and any other person to arbitration or to compromise any claims debts or liabilities on 309 behalf of the evacuee
Clause j implies the power and its concomitant duty to satisfy the claim which may be determined in any legal proceeding instituted defended or continued in any civil or revenue court or awarded against the evacuee or admitted or undertaken by virtue of the compromise
The argument of the Custodian if accepted would lead to the somewhat startling result that a decree or an award made in favour of the evacuee in a proceeding commenced or continued by or against the Custodian may be enforced by the Custodian but the property of the evacuee remains free from all claims obligations and liabilities of the evacuee even if decreed by a competent court or undertaken and accepted by him
There is nothing in the statute which compels us to lend countenance to this inequity
The words used in cl
n empowering the Custodian to pay to any other person any sums of money out of the funds in his possession are not restricted to persons who are members of the family of the evacuee they include other persons as well who are entitled to receive money from the evacuee
The decree of a civil or revenue court or an order of any other authority is it must be observed not decisive of the validity or admissibility of the claim against the evacuee property
It is for the Custodian to be satisfied about the genuineness of the claim
The Custodian must determine whether a person making a claim against the evacuee is entitled to the right claimed and if he is satisfied the claim may be discharged out of the funds in his posession 
But by the use of the expression in the opinion of the Custodian it was not intended to invest the Custodian with arbitrary authority
It is for the Custodian to determine when a claim is made by the evacuee or a member of his family or any other person for payment of a sum of money having regard to all the circumstances whether it is genuine and to satisfy it if in the opinion of the Custodian such a person is entitled to the payment
Where a claim is made by a person who claims to be a creditor of the evacuee and he satisfies the Custodian that he is entitled to any sum of money then normally the Custodian would be justified in discharging the obligations of the evacuee out of the funds in his possession
But counsel for the Custodian relies upon the terms of 3 10 2 m as they originally stood before they were amended by Act 91 of 1956 and the deletion of Rule 22 framed under the Act in support of the contention that the Parliament has deliberately taken away the power to entertain a claim for satisfaction of debts due by the evacuee
Section 10 2 m as it originally stood provided 310 lm15 incur any expenditure including the payment of taxes duties cesses and rates to Government or to any local authority or of any amounts due to any employee of the evacuee or of any debt due by the evacuee to any person Under Rule 22 made in exercise of the powers under section 56 of the Act provision was made for registration of claims by persons claiming to receive payment from any evacuee or from any property of such evacuee whether in re payment of any loan advanced or otherwise by presenting a petition to the Custodian
Tim Custodian was entitled to register a claim under cl
2 where in was supported by a decree of a competent court or a registered deed executed and registered before 14 8 1947 or by a registered deed executed and registered on or after 14 8 1947 and the transaction in respect of which the deed was so executed and registered had been confirmed by the Custodian or where an acknowledgment in writing was executed by the evacuee himself before the 1st March 1947 or where such claim was of the nature referred to in the Explanation to sub rule 1 and the transfer of property in respect of which the claim was made was a bona fide transaction
If the claim did not fall under sub rule 2 the Custodian had to direct the claimant to establish his claim in a civil court Sub rules 3  4 provided  3 The mere registration of a claim shall not entitle the claimant to payment and the Custodian may for reasons to be recorded refuse payment
4No debt incurred by the evacuee before the property vested in the Custodian shall be paid without the sanction of the Central Government or Custodian General
 The Explanation to sub rule 4 set out cases in which the sanction of the Central Government was not necessary
The was amend ed by Act 91 of 1956 and the words or of any amounts duly to any employee of the evacuee or of any debt due by the evacue to any person in section 102 m were deleted
The Central Government thereafter issued on February 20 1957 an order deleting Rule 22
Relying upon this legislative development it was con tended that an express power to entertain a claim for satisfaction of debts due by the evacuee was conferred upon the Custodian by section 102 m and machinery was provided for effectuating the 311 exercise of that power in Rule 22 and the Legislature having deleted the clause which authorised the Custodian to exercise the power to pay debts and the machinery in that behalf no such power remained vested in the Custodian
We are however unable to agree that because of the amend ment made in section 102 m and the deletion of Rule 22 the power which is vested in the Custodian under section 102 n must be held restricted
Sub section 1 of section 10 sets out the powers of the Custodian generally and the diverse clauses in sub section
2 illustrate the specific purposes for which the powers may be exercised and there is no reason to think that the clauses in sub section
2 are mutually exclusive
If power to pay the debts was derived both under cls
m  n as it appears it was deletion of the provision which authorised the Custodian to pay debts due by the evacuee to any person from cl
m and of Rule 22 setting up the machi nery for registration of debts did not in our judgment affect the power which is conferred by cl
n by sub section
2 and also by section 101
In our judgment the power to administer is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian merely to recover and collect the assets of the evacuee but to discharge his obligations as well
The power to administer for purposes mentioned having regard to the diverse clauses in sub section
2 includes the power to pay such debts which in the opinion of the Custodian are binding upon the evacuee
Specific enunciation of that power in cl
n authorising the Custodian to pay to any other person who in the opinion of the Custodian is entitled to any sum of money supports that conclusion
As already observed the decree of the civil court is not decisive of the question whether a person making a claim is entitled to the sum of money claimed by him
It is for the Custodian to determine whet her the claimant is entitled to receive the sum of money claimed by him out of the funds in his possession
He has to form his opinion on this question  of course in forming his opinion he must act judicially and not arbitrarily
As the Tribunals below have determined the claim raised before them only on the question of jurisdiction to entertain it and not on the merits we are unable to pass any effective order in favour of the appellant
The orders passed by the Custodian and the Cus todian General must therefore be set aside and the proceeding remanded to the Custodian to determine the question whether in the opinion of the Custodian the appellant is entitled to any sum of money out of the funds in his possession and whether for the purpose of administration and management of the evacuee property 312 or for enabling him to satisfactorily discharge his duties under the Act the amount claimed should be paid
The appeal is therefore allowed
The appellant would be entitled to his costs in this appeal from the Custodian
Appeal allowed


Summary:
The appellant was the holder of a money decree against an evacuee whose property had vested in the Custodian
Under section 17 of the  the property was not liable to be proceeded against in execution so long as it remained vested in the Custodian and the appellant could not take steps to execute the decree
He therefore applied to the Custodian under section 102n of the Act for satisfaction of his claim out of the assets of the evacuee
The application was rejected on the ground that the Custodian had no power to grant the relief and the order was confirmed by the Custodian General in revision
In his appeal to this Court the appellant contended that the Custodian should have entertained his claim
HELD  The orders passed by the Custodian and the Custodian General must be set aside and the proceeding remanded to the Custodian to determine the questions whether in the opinion of the Custodian the appellant was entitled to any sum of money out of the funds in the Custodian s ion and whether for the purpose of administration and management of the evacuee property or for enabling him satisfactorily to dis charge his duties under the Act the Custodian should pay the amount claimed
311 H 312 A Section 101 of the Act sets out the powers of the Custodian generally and the diverse clauses of section 102 illustrate the specific purposes for which the powers may be exercised These clauses are not mutually exclusive
Under cl
in before its amendment by Act 91 of 1956 express power to entertain a claim for satisfaction of debts due by the evacuee was conferred upon the Custodian
Clause n confers upon the Custodian power coupled with a duty to pay to the evacuee or to any member of his family or to any other person who in the opinion of the Custodian is entitled any sum of money out of the estate of the evacuee Me words any other person are not restricted to persons who are members of the evacuee s family but include other persons as well who are entitled to receive money from the evacuee
Thus the power to pay the evacuee s debts was derived both under cls
in and n of section 102 Therefore the deletion from cl
in of the Custodian s power to pay the debts by the Amending Act of 1956 and the consequential deletion of r 22 of the rules framed under the Act by which a machinery was provided for exercising that power did not affect the power which is conferred by section 102n and by section 101
The power to administer under section 101 is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian only to recover and collect the assets of the evacuee it includes power to discharge his obligations as well to pay such debts which in the opinion of the Custodian are binding upon the evacuee
307 C 309 C D 311 C E 305 A decree of the civil court is not decisive of the question whether a Person making a claim is entitled to the money claimed by him it is for the Custodian to determine whether he is so entitled
The Custodian has to form his opinion on this question and in forming his opinion he must act judicially and not arbitrably
311 F G