Appeal No 119 of 1963
Appeal by special leave from the judgment and order dated January 16 1961 of the Deputy Custodian General New Delhi in Appeal No 172 A SUR 1960
M C Setalvad Atiqur Rehman and K L Hathi for the appellant
C K Daphtary Attorney General K section Chawla and B R G K Achar for the respondents
February 19 1964
The Judgment of the Court was delivered by WANCHOO J
This is an appeal by special leave against the order of the Deputy Custodian General and the question involved is whether the appellant is liable to pay Rs 85000 to the Custodian
The matter has a long history behind it which it is necessary to set out in order to understand the point now in dispute in the present appeal
The money in question was deposited with the appellant by his sister as far back as January 1946
The total amount deposited was Rs 90000  but the appellant s sister took back Rs 5000  with the result that the balance of Rs 85000 remained deposited with the appellant
The appellant s sister thereafter migrated to Pakistan sometimes between June to August 840 1949
Sometime later the Assistant Custodian General called upon the appelant to pay this sum lying in deposit under section 48 of the  No XXXI of 1950 hereinafter referred to as the Act
The appellant contested the matter on the ground that the money had been given to him as a loan and its recovery was barred in January 1949 long before his sister had migrated to Pakistan and therefore the amount could not be recovered from him
The Assistant Custodian however directed the recovery of the amount as arrears of land revenue under section 48 of the Act as it then stood
The matter was taken in appeal before the Custodian Saurashtra but the appeal failed
The appellant then went in revision to the Custodian General and the revision also failed
Then followed a writ petition by the appellant before the Saurashtra High Court in 1955
The writ petition was dismissed by a learned Single Judge but on Letters Patent Appeal the appellant succeeded the High Court holding that the amount was not recoverable under section 48 of the Act as it stood at the relevant time
This decision was given on December 9 1957
In the meantime section 48 had been amended on October 22 1956 and we shall refer to this amendment in due course
After the appellant had succeeded in the High Court another notice of demand was served on him by the Assistant Custodian on January 22 1958 and after hearing the objec tions of the appellant the Assistant Custodian again directed the amount to be recovered
The appellant then took the matter in appeal to the Custodian General
The Custodian General allowed the appeal in August 1958 and remanded the proceedings for further enquiry as directed by him
The Custodian General then held that section 48 as amended applied to the fresh proceedings which began on the notice issued by the Assistant Custodian in January 1958
He further held that the amount was recoverable under the amended section 48 provided it was due to the evacuee on the date the property of the evacuee vested in the Custodian
He was therefore of opinion that it would have to be determined when the sister of the appellant migrated and whether the amount was due to her on the date of her migration and had
not become barred by the law of Iimitation on that date
Ho was further 841 of opinion that the question whether the transaction amounted to a loan or a deposit had to be determined as there were different periods of limitation for these two types of transactions
He therefore remanded the matter for disposal after finding the facts in accordance with the directions given by him
After the remand further evidence was taken and it was held that the amount in question was payable by the appellant as it was a deposit and was still recoverable when the property vested in the Custodian
Thereupon the appellant again went in appeal to the Custodian General and that appeal was dismissed on February 6 1961
Then the appellant applied to this Court for special leave which was granted and that is how the matter has come up before us
Two questions have been urged before us on behalf of the appellant
The first is whether the amended section 48 can be applied to the present case
The second is whether the claim of the Custodian is barred even on the basis of the transaction between the appellant and his sister being a deposit and not a loan
The amended section 48 came into the Act by Act No 91 of 1956 from October 22 1956 and runs as follows 48
Recovery of certain sums as arrears of land revenue 1 Any sum payable to the Government or to the Custodian in respect of any evacuee property under any agreement express or implied lease or other document or othervise howsoever may be recovered in the same manner as an arrear of land revenue
2 If any question arises whether the sum is payable to the Government or to the Custodian within the meaning of sub section 1 the Custodian shall after making such inquiry as he may deem fit and giving to the person by whom the sum is alleged to be payable an opportunity of being heard decide the question and the decision of the Custodian shall subject to any appeal or revision under this Act be final and shall not be called in question by any court or other authority 842 3 For the purpose of this section a sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act 1908 9 of 1908 or any other law for the time being in force relating to limitation of action
 It will be seen that this is mainly a procedural section replacing the earlier section 48 and lays down that sums payable to the Government or to the Custodian can be recovered thereunder as arrears of land revenue
The section also provides that where there is any dispute as to whether any sum is payable or not to the Custodian or to the Government the Custodian has to make an inquiry into the matter and give the person raising the dispute an opportunity of being heard and thereafter decide the question
Further the section makes the decision of the Custodian final subject to any appeal or revision under the Act and not open to question by any court or any other authority
Lastly the section provides that the sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act or any other law for the time being in force relating to limitation of action
Sub sections 1 and 2 are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October 22 1956 even though the claim may have arisen before the amended section was inserted in the Act
It is well settled that procedural amendments to a law apply in the absence of anything to the contrary retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date
Therefore when the Assistant Custodian issued notice to the appellant on January 22 1958 claiming the amount from him the recovery could be dealt with under sub sections
1 and 2 of the amended section 48 as they are merely procedural provisions
But it is urged on behalf of the appellant that sub section
1 in terms does not apply to the present case and if so sub section
2 would also not apply
The argument is that under sub section
1 it is only any sum payable to the Government or to the Custodian in respect of any evacuee property which can be recovered as arrears of land revenue
843 Therefore the argument runs evacuee property itself cannot be recovered under sub section
1 for that sub section only provides for recovery of any sum payable in respect of any evacuee property
In this connection reference has been made to section 9 of the Act which lays down that if any person in possession of any evacuee property refuses or fails on demand to surrender possession thereof to the Custodian the Custodian may use or cause to be used such force as may be necessary for taking possession of such property and may for this purpose after giving reasonable warning and facility to any woman not appearing in public to withdraw remove or break open any lock bolt or any door or do any other act necessary for the said purpose
The argument is that the Custodian can only take action for recovery of evacuee property under this section
We are of opinion that the argument is misconceived
Section 9 deals with the recovery of immovable property or specific movable property which can be physically seized it does not deal with incorporeal evacuee property which may vest in the Custodian and which for example may be of the nature of an actionable claim
So far as actionable claims are concerned they are dealt with by section 48 as amended read with section 10 2 i
It is also a misconception to think that the amount of Rs 85000 which is involved in this case is actually evacuee property
It is true that under section 48 as amended the Custodian can take action for recovery of such sums as may be due in respect of any evacuee property and if the sum of Rs 85000 which was deposited with the appellant is actually evacuee property the Custodian may not be able to take action under section 48 1 and 2 in respect of the same
But the property which vested in the Custodian was not the actual money in specie lying with the appellant who must be treated as a banker with respect to the property with him  on the other hand the property which vested in the Custodian would be the right of the appellant s sister to recover the amount from the appellant and that would be incorporeal property in the form of an actionable claim
It is in respect of that actionable claim that the Custodian can proceed under section 48 sub sections
1 and 2 to recover the sum payable to him in respect of that property namely the actionable claim
The contention of the appellant that section 48 1 will not apply to the recovery of this sum of money must 844 therefore fail and the Custodian would have the right to recover this sum of money as it is payable in respect of the evacuee property of the appellant s sister namely the right which she had to recover the sum from the appellant and it is this right which vested in the Custodian
The Custodian could not take action under section 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that section
If the appellant s sister had the right to recover this amount from the appellant that right would be incorporeal property which would vest in the Custodian and in respect of which action could be taken under section 48 as amended and not under section 9 of the Act
The contention of the appellant that section 48 1 and 2 do not apply to this case must therefore fail
The next contention is that in any case treating the amount as a deposit the right to recover it had become barred and therefore the Custodian could not recover it under this section and that sub section
3 of section 48 would not apply as it affects vested rights and is not procedural in nature and therefore could not be applied retrospectively
Some dates would be relevant in this connection
On the findings of the authorities concerned it appears that the deposit was made sometime in January 1946
The appellant s sister migrated sometimes between June to August 1949
According to the law in force in that area at the relevant time on the date of migration of the appellants sister she became an evacuee and her property would vest in the Custodian on such date
So her right to recover this amount from the appellant would vest in the Custodian sometime between June to August 1949 if it was still alive under the law of limitation even apart from the question that in such cases only the remedy is barred though the right remains
Further as this was a deposit limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellants sister for the return of the money before she migrated to Pakistan
Therefore the period of limitation had not even begun to run on the date the appellant s sister migrated to Pakistan assuming article 60 of the Limitation Act No 9 of 1908 applied
Consequently the right of the appel 845 lant s sister to recover the amount vested in the Custodian and was not barred by limitation at the time when she became an evacuee
The demand was made for the first time on January 10 1952 by the Assistant Custodian and time would run from that date at the earliest
Then it is urged that even if the actionable claim vested in the Custodian the demand in this case was made for the first time on January 10 1952 and therefore under article 60 of the Limitation Act the right to recover the amount would be barred in January 1955 and consequently no proceeding could be taken under section 48 to recover the same after January 1955
It is further urged that the amended Act came into force on October 22 1956 and sub section
3 would only apply to such cases where the limitation had not expired before that date
We do not think it necessary for purposes of the present appeal to decide the effect of sub section
3 of section 48 for the appellant never contested before the authorities concerned that recovery could not be made tinder section 48 even if the amount was treated as a deposit
What the appellant had contended before the authorities concerned was that the recovery would be barred as the amount was given to him
 as a loan
The appellant therefore cannot Dow for the first time in this Court take the plea that recovery could not be made under section 48 and sub section
3 thereof would not apply even if the amount is treated as a deposit
This contention thus raised in this Court for the first time raises a question as to the effect of sub section
3 of section 48
Besides the effect of section 48 3 it is contended for the respondent that if this question had been raised before the proper authorities evidence might have been led to show that the recovery was not barred for the case proceeded on he assumption that At 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made ie whether on demand or other wise and acknowledgements of liability made by the appel lant
Such defence would have raised questions of fact which have never been investigated
Therefore it is urged that the appellant should not be allowed to raise the point that the recovery would be barred even if the amount was treated is a deposit and should be confined to his case 846 that this was a loan and not a deposit for he never pleaded at any time before the authorities concerned that even if it was a deposit the recovery would be barred by time
We are of opinion that there is force in this contention on behalf of the respondents and we are not prepared to allow the appellant to raise the question whether the recovery would be barred even if the amount is treated as a deposit
In this view of the matter it would not be necessary to consider the exact effect of section 483 and to decide whether it will apply even to cases where the recovery had become barred under the Limitation Act before October 22 1956
We therefore do not allow the appellant to raise the point that the recovery would be barred even if the amount was a deposit
The appeal therefore fails and is hereby dismissed with costs
Appeal dismissed


Summary:
Rupees 85000 was deposited with the appellant by his sister in January 1946
The appellant s sister migrated to Pakistan sometimes between June to August 1949
The Assistant Custodian called upon the appellant to pay this sum lying in deposit under section 48 of the 
The appellant pleaded that the amount could not be recovered from him because the money had been given to him as a loan and its recovery was barred in January 1949
The Assistant Custodian rejected the contention of the appellant and directed him to pay the amount under section 48 of the Act as it then stood
This decision was affirmed in appeal as well as in revision
Then the appellant moved a writ petition before the High Court which was dismissed by the single Judge
On Latters Patent Appeal the High Court held that the amount was not recoverable under section 48 of the Act as it stood at the relevant time
This decision was given on December 9 1957
In the meantime section 48 had been amended on October 22 1956
On January 22 1958 another notice of demand was served on the appellant by the Assistant Custodian
The Assistant Custodian again directed the amount to be recovered The appellant preferred an appeal before the Custodian General
The Custodian General allowed the appeal and remanded the proceedings for further enquiry as directed by him
After the remand further evidence was taken and it was held that the amount in question was payable by the appellant as it was a deposit and was still recoverable when the property vested in the Custodian
Thereupon the appellant preferred an appeal to the Custodian General and that appeal was dismissed
Then the appellant applied to this Court for special leave which was granted
Hence the appeal
Held i Sub sections 1 and 2 of the amended section 48 of the are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October 22 1956 even though the claim may have arisen before the amended section was inserted in the Act
It is well settled that procedural amendments to a law apply in the absence of anything to the contrary retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date
In the present case when the Assistant Custodian issued notice to the appellant on January 22 1958 claiming the amount from him the recovery could be dealt with under sub sections
1 and 2 of the amended a 48 as they are merely procedural provisions
ii In the present case the property which vested in the Custodian was not the actual money in specie lying with the appellant who must be treated as a banker with respect to the property with him on the other hand the property which vested in the Custodian would be the right of the appellant s sister to recover the amount from the appellant 839 and that would be incorporeal property in the form of an actionable claim
It is in respect of that actionable claim that the Custodian can proceed under section 48 sub sections
1 and 2 to recover the sum payable to him in respect of that property namely the actionable claim
The Custodian could not take action under section 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that section
iii As this amount was a deposit limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellant s sister for the return of the money before she migrated to Pakistan
Therefore the period of limitation had not even begun to run on the date the appellant s sister migrated to Pakistan assuming article 60 of the Limitation Act No 9 of 1908 applied
Consequently the right of the appellant s sister to recover the amount vested in the Custodian and was not barred by limitation  the time when she became an evacuee