Case: Memon Abdul Karim Haji Tayab Vs. Deputy Custodian General, New Delhi And Others

property, namely, ;the actionable claim. The contention of the appellant that S. 48(1) will not apply to the recovery of this sum of money must therefore fail and the Custodian would have the right to recover the sum of money as it is payable in respect of the evacuee property of the appellants 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 S. 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 appellants 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 S. 48 as amended and not under S. 9 of the Act. The contention of the appellant that S. 48(1) and (2) do not apply to this case must therefore fail.5. 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-s. (3) of S. 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 appellants 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 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 appellants sister migrated to Pakistan, assuming Art. 60 of the Limitation Act, No. 9 of 1908 applied. Consequently the right of the appellants 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.6. 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 Art. 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 S. 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-s. (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-s. (3) of S. 48, for the appellant never contested before the authorities concerned that recovery could not be made under S. 48 even if the amount was treated as a deposit. What the appellant had contended before the authorities concerned was that recovery would be barred as the amount was given to him as a loan. The appellant therefore cannot now for the first time in this Court take the plea that recovery could not be made under S. 48 and sub-s. (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-s. (3) of S. 48.Besides the effect of S. 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 even for the case proceeded in the assumption that Article 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made i.e. either in demand or otherwise and acknowledgments of liability made by the appellant. 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 as a deposit and should be confined to his case 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 S. 48 (3) 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 S. 48 as amended read with S. 10(2) (1). It is also a misconception to think that the amount of Rs. 85,000/- which is involved in this case is actually evacuee property. It is true that under S. 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. 85,000/- which was deposited with the appellant is actually evacuee property, the Custodian may not be able to take action under S. 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 appellants 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 S. 48, sub-secs. (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 S. 48(1) will not apply to the recovery of this sum of money must therefore fail and the Custodian would have the right to recover the sum of money as it is payable in respect of the evacuee property of the appellants 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 S. 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 appellants 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 S. 48 as amended and not under S. 9 of the Act. The contention of the appellant that S. 48(1) and (2) do not apply to this case must thereforethe findings of the authorities concerned, it appears that the deposit was made sometime in January 1946. The appellants 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 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 appellants sister migrated to Pakistan, assuming Art. 60 of the Limitation Act, No. 9 of 1908 applied. Consequently the right of the appellants 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 thecontention thus raised in this Court for the first time raises a question as to the effect of sub-s. (3) of S. 48.Besides the effect of S. 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 even for the case proceeded in the assumption that Article 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made i.e. either in demand or otherwise and acknowledgments of liability made by the appellant. 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 as a deposit and should be confined to his case 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 S. 48 (3) 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.