Civil Appeal No 381 of 1965
Appeal by special leave from the judgment and decree dated May 2 1961 of the Allahabad High Court in Execution First Appeal No10 of 1954
Naunit Lal for the appellant
VA Seyid Muhammad and SP Nayar for the respondents
The Judgment of the Court was delivered by Grover J
This is an appeal by special leave from a judgment of the Allahabad High Court confirming the order of the District Judge dismissing an Execution Application filed by the appellant
On June 16 1948 the appellant entered into an agreement with Aziz Ahmed Khan respondent No I for the sale of certain properties comprising houses and plots in the town of Bareilley
The sale consideration of Rs 145000 was stated have been already paid by the appellant to the vendor
Subsequently disputes arose between the vendor and the appellant regarding the completion of the sale
These disputes were refered to the arbitration of Shri RR Agarwal who gave an award on August 30 1949 which was made a rule of the court on November 30 1949
A decree on the basis of the award was granted in favour of the appellant
Sometimes after November 22 1949 the vendor Aziz Ahmed Khan left India for Pakistan
On December 7 1950 the appellant moved the Deputy Custodian Judicial Meerut Circle for confirmation of the transfer under section 38 of the Administration of Evacuee Property Ordinance 1949 Ordinance No 27 of 1949 or under section 40 of the Act 31 of 1950
On 9th May 1951 the Deputy Custodian accorded confirmation
The Additional Custodian however took suo motu action in exercise of his revisional jurisdiction and set aside the order passed by the Deputy Custodian
On April 4
1952 the appellant filed an application for execution of the decree passed on the basis of the award
On May 10 1952 objections were filed on behalf of the Custodian to the execution
The District Judge held that the award made on August 30 1949 could not have the effect of transferring the properties as the approval of the Collector had not been obtained under the notification dated July 29 1949 which had been 798 issued under section 26 of UP Administration of Evacuee Property Ordinance No 1 of 1949 and that on the date of the decree the transfer of properties could not be effected unless confirmed by the Custodian
It was further held by him that no interest by way of charge in favour of the appellant had been created on the properties in dispute
He was further of the view that section 171 of the Central Act of 1950 created a bar to execution of the decree
The Execution application was consequently dismissed
The appellant filed an appeal to the High Court which was dismissed
When the appeal came up for hearing before this Court on February 22 1968 it was
considered expedient to have further findings on certain points
The following questions were therefore framed and remitted to the High Court for that purpose
1 the date on which Aziz Ahmed Khan migrated to Pakistan
2 whether the properties of Aziz Ahmed Khan vested in the Custodian of Evacuee Property under UP Ordinance 1 of 1949 or Central Ordinance 12 of 1949 as made applicable to the State of UP by UP Ordinance 20 of 1949 or under the Central Ordinance 27 of 1949 or under Central Act of 1950
The High Court remitted these matters to the District Judge
His finding on the first question was that Aziz Ahmed Khan had migrated to Pakistan on some date after November 22 1949
On the second question he found that Aziz Ahmed Khan s properties did not vest in the Custodian of Evacuee Property under any of the Ordinances or under the Central Act 31 of 1950
Certain additional evidence was produced before the High Court
The High Court expressed agreement with the conclusions of the District Judge on both the points
It may be mentioned that on certain subsidiary points the
learned District Judge had also found that it had not been proved that a valid declaration under section 71 of the Central Ordinance 27 of 1949 or of the corresponding provision in the Central Act 31 of 1950 was made for declaring Aziz Ahmed Khan an evacuee
In the opinion of the learned Judge such a declaration was necessary if his properties were to be declared evacuee properties
In view of the findings which have been returned by the High Court on the points referred it has been contended on behalf of the appellant that there could be no bar to the execution of the decree which was based on the award
It is 799 pointed out that on the conclusions at which the High Court has now arrived the properties of Aziz Ahmed Khan were never declared to be evacuee properties either under the Central Ordinance 27 of 1949 or the Central Act 31 of 1950 and they could not vest in the Custodian unless they had been so declared after appropriate proceedings
It is urged that the decree in favour of the appellant was of the nature of a decree passed in a suit for specific performance
The court could and should have executed d conveyance in favour of the appellant since Aziz Ahmed Khan was no longer available or was refusing to do so and the confirmation of the Custodian could be obtained before the registration was effected
According to the counsel for the appellant the Additional Custodian had declined to confirm the transfer at the previous stage because there was no deed of sale or transfer
Counsel for the respondent has drawn attention to a decision of this Court in Azimunissa  Others vs The Deputy Custodian Evacuee Properties District Deoria  Ors1 in which the effect of the declaration of UP Ordinance l of 1949 to be invalid by the courts came up for the consideration as also of the subsequent evacuee legislation namely Central Ordinance 27 of 1949 Central Act 31 of 1950 and the Administration of Evacuee Property Amendment Act 1960
It appears to have been held in that case that the property which had vested under the UP Ordinance 1 of 1949 continued to vest in the Custodian notwithstanding the fact that the High Court of Allahabad in Azimunnissa  Ors
vs Assistant Custodian2 held the vesting to be invalid
This was the result of the introduction of section 82 A in the Central Act of 1931 by the Central Amendment Act I of 960
In the present case however Aziz Ahmed Khan migrated to Pakistan after November 22 1949
At that point of time it was Central Ordinance 27 of 1949 which was in force
It appears highly doubtful that the respondent could take advantage of the
provisions of automatic vesting contained in UP Ordinance 1 of 1949
There is however a serious hurdle in the way of the appel lant even when the provisions of Central Ordinance 27 of 1949 or the Central Act 31 of 1950 are taken into consideration
Section 381 of that Ordinance provided that no transfer of any right or interest in any property after the 14th day of August 1947 by or on behalf of an evacuee or by or on behalf of a person who had become an evacuee after the date of  the transfer shall be effective so as to confer any rights or remedies on the parties to such transfer unless it was confirmed by the Custodian
The provision of section 40 of the Central Act 1  2 AIR 1957 All
LI5SupCI69 7 800 31 of 1950 were similar though there was a certain change in the language
Sub section 1 of that section was in the following terms  No transfer made after the 14th day of August 1947 but before the 7th day of May 1954 by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them if at any time after the transfer the transferor becomes an evacuee within the meaning of section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act
Under both these enactments transfer of property was ineffective unless confirmed by the Custodian even if it was made by a person who became an evacuee
after the date of the transfer
It was not necessary that the property should have been declared or notified to be evacuee property before the aforesaid provisions were attracted
Under section 401 of the Act the transfer was to be ineffective in both eventualities 1 if the transferor became an evacuee within the meaning of section 2 after the transfer or 2 if the transferor s property had been declared or notified to
be evacuee property
It is abundantly clear that if Aziz Ahmed Khan became an evacuee even after the transfer
section 381 of the Ordinance and section 401 of the Act became applicable
One of the meanings of the word evacuee as given in the definition in section 2d of the Ordinance and of the Act was  Section 2di evacuee means any 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 March 1947 left any place in a Province for any place outside the territories now forming part of India Aziz Ahmed Khan became an evacuee within the meaning of the above definition
It was necessary therefore for the appellant to have obtained the confirmation of the Custodian in respect of the transfer which had been made by Aziz Ahmed Khan in his favour of the properties in question
The Additional Custodian declined to confirm the transfer and thus the condition precedent for the transfer to become effective remained 801 unsatisfied
It is significant that even in the award which formed the basis of the decree it had been provided the second party Aziz Ahmed Khan is hereby directed to execute the necessary documents in respect of the transfer by him of the properties referred to above within one month from the date of the receipt of the confirmation or approval according to law failing which the first party will at his option get the same executed and registered through court on the basis of this award which would be made a rule of the court
Therefore according to the award the confirmation or approval of the Custodian had to be obtained before the transfer documents were to be executed and completed in accordance with law
It was incumbent on the appellant to obtain the confirmation order before he could ask for any further steps to be taken by the courts in the matter of execution and registration of the transfer deed
Under section 39 of the Central Ordinance 27 of 1949 no document could be registered of the nature mentioned in section 38 unless the Custodian had confirmed the transfer
Similar provisions were contained in section 40 of the Central Act 31 of 1950
The prayer in the Execution Application that the court might grant assistance by execution of sale deed under the enabling para 5 of the Decree could not be entertained or acceded to by the Executing Court
There is one matter however on which we would like to express no view and leave it open to the appellant to take such steps as he may be advised
Para 6 of the award which became part of the decree was as follows  The claim of the first party for this transfer and exchange consideration is Rs 150000 one lac fifty thousand on account of all principal money and interest and other expenses calculated to date against the second party Sri Aziz Ahmed Khan which the second party will pay with interest at 12 per cent per annum in case the transaction and transfer of the properties referred to above in favour of the first part Sri Sardana is not confirmed or approved in any way and for any other reasons whatsoever
Sri Sardana will force the payments against the properties referred to above
and these properties are hereby charged with this claim and Sri Sardana will have his remedies to enforce the payment of the above claim against all other properties of the second party and also against his person
 The High Court in the judgment under appeal dealt with this question as if the charge was on the evacuee property
On the reasoning which has been pressed before us about the necessity 802 Of a declaration under the provisions of Central Ordinance 27 of 1949 or Central Act 31 of 1950 this part of the judgment does not appear to be correct
We would however refrain from expressing any final opinion as in fairness to both sides this question should be left for being decided if taken in appropriate proceedings including proceedings before the Executing Court
With the above observations the appeal is dismissed but in view of the entire circumstances we make no order as to costs
YP Appeal dismissed


Summary:
The first respondent entered into an agreement to sell his properties to the appellant
Disputes relating to completion of the sale were referred to arbitration
An award was made directing the first respondent to execute the documents in respect of the transfer by him within one month from the date of the receipt of the confirmation or approval according to law failing which the appellant was at liberty to get it executed and registered through court
The award was made a rule of the court on November 30 1949 and a decree on the basis of the award was granted
The first respondent left India for Pakistan some date after November 22 1969
The appellant moved the Deputy Custodian of Evacuee Property for confirmation of the transfer under section 38 of the Administration of Evacuee Property Ordinance 1949 or under section 40 of the 
The Deputy Custodian accorded confirmation but the Additional Custodian set aside the order of the Deputy Custodian
The appellant filed an application for execution of the decree on the basis of the award to which objections were filed by the Custodian
The District Judge held that on the date of the decree transfer of properties could not be effected unless confirmed by the Custodian The appellant s appeal to the High Court was dismissed
In appeal to this Court it was contended that there could be No bar to
the execution of the decree based on the award since the respondent s properties were never declared to be evacuee properties either under Central Ordinance 27 of 1949 or Central Act 31 of 1951 and that they did not vest in the Custodian unless they were so declared after appropriate proceedings
Dismissing the appeal HELD Under the provisions of section 381 of Central Ordinance 27 of 1949 and section 401 of Central Act 31 of 1951 transfer of property was ineffective unless confirmed by the Custodian even if a person became an evacuee after the date of transfer
It was not necessary that the property should have been declared or notified to be evacuee property before those provisions were attracted
800 D In the present case the respondent had become an evacuee within the meaning of section 2d of the Ordinance and the Act
The Additional Custodian declined to confirm the transfer made by the respondent and therefore the condition precedent for a valid transfer remained unsatisfied
Further even according to the award the confirmation or approval of the Custodian had to be obtained before the transfer of documents were to be executed and completed in accordance with law
It was incumbent on the 797 appellant to obtain the confirmation order before he could ask for any further steps to be taken by the courts in the matter of execution and registration of the transfer deed
800 H