Case: The State Of Bihar Vs. Kumar Amar Singh And Others(And Connected Appeal)

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- 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 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 55(2) 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".8. 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".9. The Central Ordinance which repealed the Bihar Ordinance as well as the Central Act which repealed the Central Ordinance, each contain section 8(2) providing that" 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".10. 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.11.

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

Explanation:
1[ds]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 accordinglylearned 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 wifes 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.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 underArticle 7 clearly overridesIt is peremptory in its scope and makes no exception for such a case, i.e., 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 toThis proviso is asthat 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 anythe 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.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 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 seconddefinitions 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