Appeals Nos 97 and 98 of 1952
Appeals under Articles 1321 and 1331c of the Constitution of India from the Judgment and Decree dated the 13th October 1950 of the High Court of Judicature at Patna in Miscellaneous Judicial Cases Nos 140 and 107 of 1950
M C Setalvad Attorney General for India G N Joshi Lal Narain Sinha and P G Gokhale with him for the appellant in CA Nos 97 and 98 of 1952
B Sen and I N Shroff for the respondents Nos
I to 4 1955
February 10
The Judgment of the Court was delivered by JAGANNADHADAS J
These are two connected appeals arising out of a common judgment of the High Court of Patna on two applications to it dated the 5th July 1950 and 28th July 1950 under article 226 of the Constitution
The State of Bihar is the appellant in both the appeals
The first three respondents in Appeal No 97 are the sons of the fourth respondent therein viz Kumar Rani Sayeeda Khatoon hereinafter referred to as Kumar Rani
The said Kumar Rani is also the first respondent in Appeal No 98
The other respondents in both the appeals are Government Officers under the appellant the State of Bihar
The applications before the High Court arose with reference to action taken against 1 the property and 2 the person of Kumar Rani by the Officers of the Government of Bihar under the following circumstances
Kumar Rani was admittedly born in the territory of India and claims to be the lawfully wedded wife of Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya by virtue of an alleged marriage between them in 1920 according to Arya Samaj rites and subsequently according to Muslim rites She owned and 1261 possessed considerable properties
In 1946 she created a wakf of her properties consisting of 427 villages for the maintenance and support of herself her sons and their descendants by executing a deed of Wakf ulalAulad dated the 4th May 1946 by which she divested herself of all her interest in the said properties and vested them in Almighty God
She appointed herself as the sole mutwalli for her life time or until relinquishment and her three sons to succeed her as joint mutwallis
The deed also provided that the net income was to be spent for the maintenance of herself and her three sons with the direction that not more than half should be spent by the wakifa for her own use
In July 1948 Kumar Rani went to Karachi
In December 1948 she returned to India from Pakistan on a temporary permit and went back to Pakistan in April 1949
On the 21st June 1949 the Bihar Administration of Evacuee Property Ordinance 1949 Bihar Ordinance No III of 1949 came into force
The Deputy Custodian of Evacuee Property issued a notification on the 2nd September 1949 under section 5 of this Ordinance declaring all the properties comprised in the abovementioned wakf estate to have vested in the Custodian as being evacuee property
He took possession thereof between the 20th September and 2nd October 1949
On the 14th May 1950 Kumar Rani again came back to India under a permanent permit obtained from the High Commissioner for India in Pakistan
This permit was however cancelled on the 12th July 1950 by the Deputy High Cominissioneron the ground that this was wrongly issued without the concurrence of the Government a  required by the rules made under the Influx from Pakistan Control Act 1949
In view of this cancellation the Sub Inspector of Police Gaya issued notice to Kumar Rani directing her that since her permanent permit had been cancelled she should leave lndia by the 31st July 1950
In view of these happenings two applications were filed before the High Court of Patna one dated the 5th July 1950 challenging the validity of the action taken by the Deputy Custodian declaring the wakf estate as evacuee property and taking posses 1262 sion thereof on the basis of that declaration and another application dated the 28th July 1950 challenging the validity of the order of the Sub Inspector of Police Gaya directing Kumar Rani to leave India
The first of these applications was filed by Kumar Rani along with her three sons as petitioners and the second by Kumar Rani alone
Both these applications were allowed by the High Court and hence these appeals by the State on leave granted by the High Court
These two connected appeals came up for hearing be fore this Court on the 26th and 27th October 1953
This Court after hearing counsel on both sides was of the opinion that one of the essential facts to be mentioned in detail herein below when dealing with Appeal No 97 requisite for a proper decision of Appeal No 97 had been assumed without investigation and that it was necessary to have a finding thereupon after taking evidence
This Court accordingly re manded Appeal No 97 to the High Court to submit a finding and directed that on the receipt of the finding both the appeals Appeals Nos 97 and 98 should be heard together
The finding has now been received and the appeals have been re heard
It is necessary at this stage to mention that the advocate who appeared for the respondents in both the appeals at the prior hearing appeared before us at this hearing and stated that he had been instructed to withdraw his appearance in these appeals and to allow the hearing to proceed ex parte
The preliminary facts having been stated as above it will now be convenient to deal with these two appeals separately
Appeal No 98 which raises the fundamental question as to the continuing citizenship of Kumar Rani will be taken up first
Civil Appeal No 98 of 1952
This appeal arises out of the application to the High Court dated the 28th July 1950 challenging the validity of the order dated the 23rd July 1950 issued by the Sub Inspector of Police Gaya
This order is challenged on the ground that Kumar Rani was and throughout continued to be a citizen of India and 1263 that the order dated the 23rd July 1950 which in substance amounted to an order of her externment from India was in violation of Kumar Rani s fundamental right under article 19 of the Constitution as a citizen of India
The question that arises is whether in the circumstances Kumar Rani was a citizen of India at the date of the order
The contention of Kumar Rani is that though it is a fact that she did go to Pakistan in the year 1948 she went there only for a temporary purpose viz for securing the medical treatment of a reputed Hakim and that she was always and continued to be a citizen of India and that therefore the High Commissioner for India in Pakistan had no power to cancel the permit issued to her
As regards her allegation that when she first went to Karachi in July 1948 she did so temporarily for the purpose of medical treatment the learned Judges of the High Court were not inclined to accept her story
But all the same they held that she was and continued to be a citizen of India on the ground that she was born in India and that her domicile continued to be that of her husband Captain Maharaj Kumar Gopal Saran Narayan Singh who it is not disputed throughout continued to be in India
The learned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wife s domicile continues throughout to be that of her husband during the continuance of marriage
It appears to us with respect that the learned Judges of the High Court completely overlooked article 7 of the Constitution
The relevant portion of article 5 of the Constitution says as follows At the commencement of this Constitution every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India
In the view of the High Court since Kumar Rani was born in India and bad the Indian domicile of her husband she was a citizen of India
But article 7 says Notwithstanding anything in article 5 a person 162 1264 who has after the first day of March 1947 migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India
There is a proviso to this article which will be noticed presently
But before noticing the proviso and its effect it is necessary to mention the following facts which may be taken to have been made out on the record
1 Kumar Rani went to Karachi in July 1948
2 Her story that she went there temporarily for medical treatment has been doubted by the High Court and appears to us to be unfounded
3 When she came to India in December 1948 she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani national
4 She went back to Pakistan in April 1949 on the expiry of that temporary permit
5 She made an attempt to obtain a permit for permanent return to India only after steps had been taken to vest the property in the Custodian and after the same was taken possession of
There can be no doubt on these facts that she must be held to have migrated from the territory of India after the 1st March 1947
Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband the facts bring her case under article 7
Article 7 clearly overrides article 5
It is peremptory in its scope and makes no exception for such a case ie of the wife migrating to Pakistan leaving her husband in India
Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso to article 7
This proviso is as follows 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 is contended with reference to this proviso that 1265 since she in fact returned under a permanent permit she is entitled to the benefit there of and that the subsequent cancellation of the said permit is both illegal and irrelevant
Rule 10 of the Permit System Rules 1949 framed by the Central Government under section 4 of the Influx from Pakistan Control Act 1949 provides that a permit for permanent resettlement in India may be granted by the High Commissioner or Deputy High Commissioner only after securing the agreement of the State or the Province where the applicant intends to settle
Rule 29 provides that every permit issued under the rules shall be liable to cancellation at any time without any reason being assigned by the issuing authority
In the present case the permit has been cancelled in a reasoned order on the ground that on the facts of the case the consent of the State Government concerned should have been obtained before the permit could be issued
This is a case therefore not of a valid permanent permit having been issued and the permit holder returning to India on the strength thereof and the same having been arbitrarily cancelled
It is a case of an unauthorised issue of an invalid permit which has been properly cancelled
Hence the proviso to article 7 can have no possible application
The applicant is therefore not a citizen of India and the order passed by the Sub Inspector of Police Gaya dated the 23rd July 1950 directing Kumar Rani to leave India was accordingly valid
This appeal must therefore succeed
Civil Appeal No 97 of 1952
This appeal arises out of the application to the High Court dated the 5th July 1950 challenging the validity of the notification dated the 2nd September 1949 issued by the Deputy Custodian under the Bihar Administration of Evacuee Property Ordinance 1949 declaring the wakf estate as evacuee property and taking possession thereof
Three main grounds on which this has been contested are as follows 1 Kumar Rani was not an evacuee
2 She had written a letter dated the 2nd June 1949 addressed to her second son Kumar Fateh Singh whereby she relin 1266 quished the office of mutwalli in the wakf estate and therefore by virtue of the said letter and in pursuance of the terms of the original deed of wakf her three sons respondents I to 3 had become the joint mutwallis as well as the owners of the beneficial interest in the wakf estate
It being undisputed that these three remained in India throughout it is contended that the property at the date of the notification was the property of these three sons and not of Kumar Rani and that therefore the Bihar Administration of Evacuee Property Ordinance 1949 has no application to the facts
3 The Bihar Administration of Evacuee Property Ordinance 1949 is not applicable to wakf property and to the beneficial interest of the applicants therein
So far as the first point is concerned an evacuee is defined as follows in the Bihar Administration of Evacuee Property Ordinance 1949 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
It is clear that as already found above Kumar Rani migrated to Pakistan from India after the 1st March 1947
In view of the fact that her plea as to the reason for such migration has not been accepted she can well be taken to have left India for Pakistan in the circumstances set out in this definition and after the prescribed date
She has therefore been rightly taken to be  an evacuee by the Custodian
As regards the second point the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons respondents 1 to 3 as joint mutwallis thereof by virtue of the terms of the  deed of wakf is based on a letter addressed to the second respondent her second son Kumar Fateh Singh purporting to have been written by her and dated the 2nd June 1949
The genuineness of this letter has been challenged and it is the issue as to it 1267 genuineness that was remanded to the High Court for a finding by the previous order of this Court
The 7 High Court having taken evidence on the matters at the hearing after remand and having considered the same has clearly found that the letter was not genuine
We have gone through the finding and the material relevant thereto and can find no reason not to accept it
There is therefore no substance in this second contention
As regards the third point the contention is based on the definition of the phrase evacuee property in the Bihar Administration of Evacuee Property Ordinance 1949 which is 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
It is contended that this definition does not apply either to the wakf property or to the beneficial interest of the mutwalli therein and that therefore the property in question did not vest in the Custodian
Now as already stated the original notification vesting the wakf property in the Custodian was made under section 5 of the Bihar Administration of Evacuee Property Ordinance 1949
This Ordinance was repealed by section 552 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 in turn repealed by Cenral Act No XXXI of 1950 and evacuee property has been defined therein as meaning 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 word property is defined as meaning  property of any kind and includes any right or interest in such property
The Central Ordinance which repealed the Bihar Ordinance as well as the Central Act which repealed the Central Ordinance each contain section 82 providing that 1268  where immediately before the commencement of this Ordinance Act any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby the evacuee property shall on the commencement of the Ordinance Act be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance Act and shall continue to so vest
The definitions of the phrase evacuee property in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary
There is no reason to think that evacuee property as defined in the Bihar Ordinance was meant to be anything different
The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein
We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian places the matter beyond any doubt
This contention must therefore fail
This appeal also must accordingly succeed
In the result both the appeals are allowed
The appellant in the circumstances will get only the costs incurred before the High Court on remand in Civil Appeal No 97 of 1952
Appeals allowed


Summary:
The relevant portion of article 5 of the Constitution reads At the commencement of this Constitution every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India
Article 7 of the Constitution lays down Notwithstanding anything in article 5 a person who has after the first day of March 1947 migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India
It was contended on behalf of the respondent Kumar Rani who had migrated from India to Pakistan in 1948 that she was and continued to be a citizen of India on the ground that she was born in India and her domicile continued to be that of her husband who throughout continued to be in India and that her case was covered by article 5 of the Constitution
Held repelling the contention that article 7 of the Constitution clearly overrides article 5
As the respondent had migrated from India to Pakistan after the 1st March 1947 her case fell under article 7 of the Constitution and that inasmuch as it was a case of an unauthorised issue of an invalid permit which had been properly cancelled the proviso to article 7 did not apply and that therefore the respondent could not be deemed to be a citizen of India
Held also that the definitions of the phrase evacuee property in the Administration of Evacuee Property Ordinance 1949 and the XXXI of 1950 clearly include the interest of an evacuee in any property held as a trustee or beneficiary
The definition of evacuee property in Evacuee Property Ordinance 1949 Bihar Ordinance No III of 1949 is not 1260 different and the words used therein comprise also wakf property and any interest therein