91 of 1956
Petition under article 32 of the Constitution of India for enforcement of fundamental rights
section P Sinha Shaukat Hussain E Udayarathnam and section section Shukla for the petitioners
N section Bindra R H Dhebar and T M Sen for the respondents Nos 1 to 4 1961
March 22
The Judgment of the Court was delivered by 532 SARKAR J
One Abdul Hai died about 1943
He left certain immovable properties
He had three wives and children by each
One of his wives predeceased him
On his death the wives and children surviving him succeeded  to these properties in certain shares
One of the surviving wives and a daughter died subsequently
It appears that the remaining wife of Abdul Hai and his six children by her went to Pakistan but the time when they did so does not appear
It is not however disputed that they had become evacuees and their shares in the properties could be properly declared evacuee property
A notice under section 7 of the was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties evacuee property
Proceedings were taken pursuant to the notice and on August 14 1952 an order was made declaring the migrants evacuees and a 47th share in certain properties evacuee property as belonging to them
Thereafter other proceedings were taken under  and an order was made on March 23 1954 under section 11 of this Act vesting the entirety of the properties referred to in the order of August 14 1952 in the Custodian of Evacuee Properties Bhopal
This petition under article 32 of the Constitution challenges the validity of the orders of August 14 1952 and March 23 1954 as violating the petitioners  fundamental right to hold property to wit their shares in the properties covered by the orders
It is presented by the surviving children of Abdul Hai by his two deceased wives excepting Abdul Aziz
Abdul Aziz however has been made a respondent to the petition but is not opposing it
It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the Custodian in their entirety
The petition is opposed by the other respondents namely the Government of India and various officers concerned with the Acts and it will be convenient to describe them alone as the respondents
533 The first question raised is as to the validity of the order dated August 14 1952 made under the Act of 1950
It is said that the order is a nullity as the notice under section 7 of this Act on which it was based was bad for the reason that it was issued to Abdul Aziz who was admittedly not an evacuee
It seems to us that it is unnecessary to decide this question for it is not a matter with which the petitioners are in any way concerned
The proceedings under that Act did not purport to affect their interest in the properties and they cannot therefore challenge the order made under it
Further as we have earlier said it is not in dispute that the shares of the surviving wife of Abdul Hai and her children in the properties could properly be declared evacuee property under the Act since they had migrated to Pakistan
The order of August 14 1952 only declared what purported to be their shares to be evacuee property
By such a declaration no right of the petitioners is affected
The second question raised concerns the order of March 23 1954 made under the Act of 1951
This order vests the entirety of certain properties left by Abdul Hai including the petitioners  shares in them as evacuee property and therefore clearly affects the petitioners
We think that the petitioners  grievance against this order is of substance and the order as it stands cannot be sustained
This order was made under section 11 of the Act of 1951
This Act was passed 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 see the preamble to the Act
It creates an officer called the Competent Officer for effecting such separation
The disputed order was made by such an officer
Section 2d defines composite property which so far as is material is in these terms section 2d
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 XXXI of 1950 and 534 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 or 
Section 2b defines a claim as follows section 2b Claim means the assertion by any per person not being in 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 mortagagee 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 authorises a Competent
Officer to issue for the purpose of determining or separating the evacuee interest in a composite property notices requiring persons claiming interest in any composite property to submit their claims to him
Section 7 deals with the procedure the form and the time of making the claims
Section 8 lays down that on receipt of a the Competent Officer shall make an enquiries in the manner provided and pass an order determining the interest of the evacuee and the claimant in the property
It also provides that the order shall contain among others the following particulars 1 in any case where the evacuee and the claimant ire co sharers or partners their respective shares in the property and the money value of such shares 2 in any case where the claim is made by a mortgagor the amount due to the evacuee and 3 in any case where the claim is made by a mortgage the amount due under the claim in accordance with the provisions of section 9 535 Sub section 2 of section 8 is in these terms section 82 Where the Custodian under the XXXI of 1950 has determined that the property in question or any interest therein is evacuee property the decision of the Custodian shall be binding on the competent officer Provided that nothing contained in this sub section shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10
Claims by mortgagees over evacuee properties are dealt with by section 9
Section 10 gives the Competent Officer power to separate the interests of the evacuee from those of the claimant
It provides that the Competent Officer in particular may a in the case of any claim of a co sharer i direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the civil Court or ii transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property or iii sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property or iv partition the propert y according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respec tively 
Then comes section 11 which in certain circumstances vests the entire property in a Custodian
It was under this section that the order now being considered 536 was passed and it will be convenient to set it out later
It is said on behalf of the respondents that notices under section 6 of the Act of 1951 both general and special
the latter addressed to the petitioners asking for submission of claims in respect of the properties had been issued but no claim was submitted by any one
The learned counsel for the respondents produced a copy of one of such notices which was in  the form set out below Subject 10510 acres agricultural land and one house in village Junapari Tahsil Berosia 47 share of Abdul Aleem etc
evacuees To Shri Abdul Aziz and his two brothers village Junapani Tahasil Berosia
FORM C  WHEREAS information has been received that you have an interest in the composite property described in the Schedule hereto annexed
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
 Abdul Aleem mentioned in this notice is one of the children of Abdul Rai who had evacuated to Pakistan
The order that was passed by the Competent Officer under section 11 of the Act of 1951 on March 23 1954 recited that notices inviting claims were issued but no claims had been submitted and then concluded So it is proved that no claim is filed deliberately though the individual notice has been served by post under a postal certificate
The whole Composite property listed by Custodian shall vest free of encumbrances and liabilities in the Custodian Bhopal Us 11 of the 
 It is the validity of this order that is questioned by the petitioners
They admit that they filed no claims but they deny that any notice was served on them 537 and also otherwise challenge its validity
We do not think it necessary to go into the question of the validity of the notice for it seems to us that even if there was valid notice the order challenged cannot be upheld
The question is was the order justified by section II of the Act of 1951 That section so far as relevant reads thus section 111
Where in respect of any property 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 sepa rated 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 contend that the notice mentioned in the section having been issued and no claim pursuant thereto having been filed the whole property had to vest in the Custodian and therefore the order of the Competent Officer was valid
This contention seems to us to proceed on a misreading of the section
Notices under section 6 are issued for the purpose of determining or separating the evacuee interest in a composite property
The object of the notice can therefore be one or other of two things namely for determining the evacuee interest or for separating the evacuee interest in a composite property
These are two entirely different things and are so treated in the Act as will appear from the definition of composite property and sections 8 9 and 10
The question of determining the evacuee interest arises when the interest is either a mortgagor s or mortgagee s interest in property or an undivided share in property the extent of which is not known
The determination is then made as provided in cls
b c and d of section 81 ascertaining the quantum of the interest as mortgagor 68 538 mortgagee or co sharer as the case may be
A question as to separation of interest can arise of course only when that interest is known
This is done under section 10 of the Act
A case of separation may arise for example when the evacuee is found to have a definite undivided share in property
Now an evacuee may be found to have a definite undivided share as a result of enquiry under section 8 of the Act of 1951 or under the order made by the Custodian under a 7 of the Act of 1950
In the present case the Custodian had held under section 7 of the Act of 1950 that the evacuees were only entitled to 47th share in certain properties
This will appear from the notice under section 6 of the Act of 1951 which we have earlier set out
Section 82 says that the declaration by the Custodian under the Act of 1950 that any interest in property is evacuee property shall be binding on the Competent Officer but this shall not prevent him from separating under section 10 the interest of the evacuee from that of the claimant
In the present case the notice was expressly for the purpose of separation
We have to read section 11 of the Act of 1951 in the light of the preceding sections
We have also in doing so to remember that the object of the Act of 1951 is not to vest in the Custodian property which was not evacuee property but to vest in him only the evacuee interest in property after determining or separating as the case may be that interest from the interests of other persons in the manner laid down
It has further to be remembered that it has been held by this Court that no property vests in the Custodian unless proceedings under section 7 of the Act of 1950 had been taken Ebrahim Aboobaker vs Tek Chand Dolwani 1
Section 11 therefore cannot vest in the Custodian any property which was not evacuee property it cannot have the effect of making the entire property vest in the Custodian as evacuee property where the order under section 7 of the Act of 1956 held that a certain share in it only was evacuee property
It would follow that when section 11 makes the whole property vest in the Custodian in the absence of a claim 1  539 having been filed or such claim having been filed but found to be unsustainable it deals with a case where the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under section 7 of the Act of 1950 has declared the whole property to be evacuee property
If it were not to be so read then it would enable property admittedly not belonging to an evacuee to vest in the Custodian
Such could not have been the intention of the Act and would be against the decision of this Court earlier referred to
The section therefore does not warrant the order of March 23 1954 which purported to vest the entire properties in the Custodian though the Order under B 7 of the Act of 1950 found only a four seventh share therein to be evacuee property
We think it right to point out that it has not been contended on behalf of the respondent that the petition was not maintainable
We have therefore not gone into that aspect of the case and are not to be understood as having decided any question as to the maintainability of the petition
In the result we get aside the order of March 23 1954
There will be no order as to costs
This order will not however prevent proper steps being taken for the separation of the evacuees  interest in the properties from the rest in accordance with the Act of 1951 or other provisions of law
Petition allowed


Summary:
A Muslim died leaving some property and several heirs
Some of the heirs became evacuees and their 47th share in the property was declared under section 7 of the  to be evacuee property
There after proceedings were taken for the separation of the interest of the evacuees but as none of the claimants appeared the Competent Officer passed an order under section II of the  vesting the entire property in the Custodian
Held that the order vesting the entire property in the Cus todian was illegal
The share of the evacuees had been determined as 4 7ths and the Competent Officer was only required to separate it
Section II could not vest in the Custodian any property which was not evacuee property
This section deals only with cases where the whole property has been declared to be evacuee property and the claim is as mortgagor or mortgagee or to an undivided share in the property
In such cases in the absence of a claim having been filed or having been filed and found unsustainable section
II vests the whole property in the Custodian
Ebrahim Aboobaker vs Tek Chand Dolwani   referred to