Case: Ebrahim Aboobaker and Another  Vs. Tek Chand Dolwani

done in consequence thereof."The section shows that where the property has vested in the Custodian, then the death of the evacuee or his ceasing to be an evacuee afterwards shall not affect the vesting or render invalid anything done in consequence thereof. The section seems to suggest that the vesting must take place in the life-time of the alleged evacuee, otherwise there was no point in providing that the vesting will not be affected by the death of the evacuee or the evacuee ceasing to be so.24. The Solicitor-General contended that s. 43 embodies the principle "once an evacuee always an evacuee." This conclusion is hardly justified on the terms of S. 43 as explained above and it finds no support from the other provisions of the Act. The object and the scheme of the Act leave little doubt that the Act was intended, as its title shows, to provide for the administration of evacuee property and it is common ground that this property has ultimately to be used for compensating the refugees who had lost their property in Pakistan. The Act contains elaborate provisions as to how the administration is to be carried out.25. Section 9 enables the Custodian to take possession of the evacuee property vested in him under S. 8 and S. 10 which defines the powers of the Custodian generally enables him to take such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property. These are mentioned in detail in sub-s. (2) of S. 10, cl. (j), which authorizes the Custodian to institute defend or continue any legal proceedings in any civil or Revenue court on behalf of the evacuee.26. Section 15 imposes an obligation on him to maintain a separate account of the property of each evacuee.27. Section 16 empowers the Custodian to restore the evacuee property upon application to the evacuee or any person claiming to be his heir provided he produces a certificate from the Central Government that the evacuee property may be restored to him. Upon restoration the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored.28. By S. 52 of the Act, it is open to the Central Government by notification in the Official Gazette, to exempt any person or class of persons or any property or class of property from the operation of all or any of the provisions of this Act. In pursuance of this section the Central Government issued Notification No. S. R. O. 260, dated 3-7-1950 which was published in the Gazette of India Part II-S. 3, dated 15-7-1950, page 254, in which broadly three categories of persons were exempted:(a) Any person who on or after 1-3-1947, migrated from India to Pakistan but had returned to India before 18-7-1948, and had settled therein;(b) Any person who has left or leaves for Pakistan on a temporary visit taking with himself a No objection to return certificate, and has returned, or returns, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India; and(c) Any person who has come from Pakistan to India before 18-10-1949, under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India.29. These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and into property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.30. Mr. Desai, counsel for the petitioner, referred in the course of the arguments to S. 93.Presidency-Towns Insolvency Act and S. 17, Provincial Insolvency Act. According to the former ;"If a debtor by or against whom an insolvency petition has been presented dies, the Proceedings in the matter shall, unless the court otherwise orders, be continued as if he were alive."By the latter section :"if a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the matter shall, unless the court otherwise orders, be continued so far as may be necessary for the realisation and distribution of the property of the debtor."Though there is slight difference in the language of these two sections, the principle underlying the Insolvency law seems to be that the death of the insolvent during the pendency of the application for insolvency does not cause the proceedings to abate but that they must be continued so that his property could be administered for the benefit of the creditors. There is no such provision in the Act before us. It follows, therefore, that if the intention of the legislature had been to treat the person proceeded against under S. 7 as alive for purposes of the proceedings even after his death, such a provision would have been incorporated into the Act.31. After giving our best consideration to the case we are of opinion that the order of 30-7-1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set aside

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

Explanation:
1[ds]He might have misapplied or misappreciated the law or committed an error in the assumption or exercise of jurisdiction, but that would not bring the case within the purview of Art. 31 (1) read with Art. 19 (1) (f) of the Constitution. The point is debatable and we do not desire to express any opinion upon this point as we propose to examine the validity of the order of the Custodian General dated 30-7-1951, in the appeal (Civil Appeal No. 65 of 1953) which arose out of Petition No. 105 of 1952 for special leave and not on the petition under Art. 32.The use of the present tense "leaves or has left in the definition of evacuee and has in the definition of evacuee property is relied upon in support of the contention that the object of the legislature in enacting these provisions was to confine their operation to a living person only. This line of argument may not per se be of any compelling force but it receives support from the rest of the provisions of the Act16. It is obvious that property must be declared to be evacuee property under S. 7 before it can vest under S. 8. There is no doubt that when the property does so vest the vesting takes effect retrospectively, but where the man dies before any such declaration is made, the doctrine of relation back cannot be invoked so as to affect the vesting of such property in the legal heirs by operation ofReading ss. 7 and 8 together, it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the inquiry made under s. 7, but until the proceeding is taken under S. 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property ?If he cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs. The inquiry under S. 7 is a condition precedent to the making of a declaration under S. 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason, therefore, why the heirs should be deprived of their property before the Custodian obtains dominion.The matter may be looked at from another point of view. Section 141, Civil P. C. which makes the procedure of the Court in regard to suits applicable in all proceedings in any Court of civil jurisdiction does not apply, as the Custodian is not a Court, though the proceedings held by him are of a quasi-judicial nature. Section 45 of the Act applies the provisions of the Code only in respect of enforcing the attendance of any person and examining him on oath and compelling the discovery and production of documents.19. The provision of the Code relating to substitution are, therefore, inapplicable and there is no other provision in the Act for the heirs to be substituted in place of the deceased so as to continue proceedings against them. If the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it is logical to hold that they cannot be initiated against them. We hold, therefore, that the proceedings must lapse upon the death of such person.It is a well-recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and the is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts. It is also well understood that property vests in the heirs under the Mohammedan law, unlike the Indian Succession Act, without the intervention of an administrator.It was contended before us that the Act aims at fixing the nature of the property from a particular date and that the proceedings taken are against the property and not against the person.This argument is fallacious. There can be no property evacuee or otherwise unless there is a person who owns that property. It is the property of the owner which is declared to be evacuee property by reason of the fact that he is subject to disability on certain grounds.These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and into property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.After giving our best consideration to the case we are of opinion that the order of 30-7-1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set