Case: Begum Noorbanu &amp; Others Vs. Deputy Custodian General of Evacuee Property

1. This is an appeal by special leave against an order of the Deputy. Custodian General, Evacuee Property dated September 12, 1960 holding that one Zarina who migrated to Pakistan in the year 1949 had 7/48th interest in certain specified items of property left by her father Khan Bahadur Ahmed Alladin who died on December 21, 1954. The appellants before us are the widow and the two sons of this gentleman whom we shall hereafter refer to as Khan Bahadur2. After his death proceedings were initiated by the Custodian of Evacuee Property, Hyderabad to declare the share of Zarina in the properties left by her father as evacuee property. Pursuant thereto a notice dated February 17, 1955 under S.7 of the Administration of Evacuee Property Act, 1950 was issued by the Senior Assistant Custodian and served on the firm of M/s. Khan Bahadur Ahmed Alladin and Sons stating that Zarina was an evacuee and as all properties belonging to her were evacuee properties including her share in the properties mentioned in the said notice the Custodian would hold an enquiry on March 2, 1955 in the matter. A similar notice bearing the same date was served on Noorbanu, the widow of the Khan Bahadur3. On March 2, 1955 a preliminary objection was lodged by the appellants before the Senior Assistant Custodian in which they challenged the validity of notice and made a request that this question be tried as a preliminary issue. The Senior Assistant Custodian by his order dated March 3, 1955 overruled the preliminary objection and set down the matter for March 10, 1955 for recording evidence4. Against the order the appellants preferred a writ petition in the former High Court of Hyderabad on or about March 10, 1955. This was dismissed on the ground that the appellants had a remedy under the Administration of Evacuee property Act by way of an appeal against the order of the Custodian. Accordingly the appellants filed an appeal before the additional Custodian of Evacuee Property. The appeal was dismissed on April 4, 1955 whereupon the appellants preferred a second writ petition before the High Court issue of a writ of prohibition against the Assistant Custodian from continuing the proceedings and holding any further enquiry in the matter and for quashing those proceedings by issuing a writ of certiorari. This writ petition was dismissed by the High Court on September 15, 19555. In the meantime the Senior Assistant Custodian issued a notice under S. 8 (4) of the Act calling upon the first appellant to surrender possession of the 7/48th share of Zarina in to properties mentioned in that notice on or before March 29, 1955. This notice was sent on March 14, 1955. On March 21, 1955 he issued a notification stating that all the properties belonging to Zarina, including her 7/48th share left by her father and certain other properties were evacuee properties and that they were vested in the Custodian. On that very day a notice under S. 7 of the Act was issued and served on the firm of M/s. Khan Bahadur Ahmad Alladin and Sons stating that as Zarina was an evacuee and properties belonging to her were evacuee properties, including her share in the properties specified in the said notice, the Custodian would hold an enquiry on April 2, 1955 in the said Matter. A notice to this effect was also issued to the first appellant. A third notice was issued on April 6, 1955 also under S. 7 stating the same things and stating also that an enquiry will be held by the Custodian on April 15, 1955. On April 6, 1955 a similar notice was served on the first appellant. Thereupon an enquiry was held by the Senior Assistant Custodian6. The contentions raised by the appellants at the enquiry were briefly these. The family belongs to the Khoja sect of Muslims and in the matter of succession the Khojas being governed by the Hindu law a Khoja is competent to make a will disposing of his property. According to them the Khan Bahadur executed a will on September 6, 1948 whereunder he created a wakf of certain property, made certain cash bequests including one of Rs.50,000 in favour of Zarina and bequeathed his remaining property, movable and immovable to the appellants. Therefore, according to them, Zarina could not be regarded as one of the heirs of the Khan Bahadur and consequently no share in the property of the Khan Bahadur could vest in the Custodian of Evacuee Property. The Senior Assistant Custodian of Evacuee Property set out in his order dated March 31, 1956 that the following properties were left by the Khan Bahadur:2. House bearing No. 3914 situate at Market Street, Secunderabad3. Houses bearing Nos.4. Mulgi No.7 (old)5. S. Nos. 59, 60/1, 57/1 and 75, measuring about 200 acres situate at village Fatehnagar Tq., Dist. Hyderabad and Survey No. 67/I at Pahool Khan Guda, Taluq Hyderabad, Distt. Hyderabad7. Houses bearing Nos.12. Properties mentioned in the will executed by the deceased and any other property left by him7. Rejecting the contentions of the appellants he held that Zarina had 7/48th share in each of these items. His order was upheld in appeal by the Additional custodian of Evacuee Property. It is from that decision that the appellants went to the Deputy Custodian General by way of revision. He excluded some properties but held that in the remaining ones Zarina had 7/48th share which vested in the Custodian. The question about the validity of the notices issued by the Custodian was also raised before him but he held that the notices were good in law.

Reasoning: It is true that on an earlier occasion, that is, on February 17, 1965 notice was given only to the firm and not to the first appellant. However, if the notices issued on March 21, 1955 are valid and adequate in law, they would be sufficient to confer jurisdiction upon the Custodian to proceed further under Chapter II. It is not contended that the notice issued to the first appellant is invalid or insufficientThere is no substance in this contention because apart from them, there are no other partners in the firm and in pursuance of that notice both these appellants entered appearance and submitted to the jurisdiction of the Custodian. But then it is said no notice was issued to Zarina who was obviously a person interested because according to the Custodian she has 7/48th share in the property. It is true that no separate notice was issued to Zarina on this occasion but on April 29, 1950 a notice was issued to her under S. 5(3) of the Hyderabad Administration of Evacuee Property Regulation No. XII of 1359F. It may be mentioned that at the time Zarina migrated to Pakistan it was this regulation which was in force in the former State of Hyderabad and it was after action had been taken under this Regulation against Zarina that the Administration of Evacuee Property Act, 1950 was applied to the State of HyderabadIt is not contended before us that no notices were issued to Zarina before she was declared an evacuee and her properties were declared as evacuee propertiesIt seems to us that the notice contemplated by S. 7 of the Act is in the first place intended to provide an opportunity to the person whose property is in the opinion of the Custodian an evacuee property to satisfy the custodian that he is not an evacuee as defined in S. 2(d) of the Act. For, if he is not an evacuee his property cannot be declared evacuee property. In the second place it is to afford an opportunity to persons who have not migrated to Pakistan to satisfy the Custodian that the property which in the opinion of the Custodian, is evacuee property does not belong to an evacuee or that an evacuee has no interest therein. Therefore, once a person has been declared an evacuee after due notice it would be unnecessary to give notice to him thereafter under S. 7 of the Act. No purpose will be served by issuing such notice because the earlier notification would be conclusive against the evacuee on the question of his migration to Pakistan. Having migrated to Pakistan the evacuee loses all interest in the property left by him in India in the sense that upon its being declared as evacuee property it would vest in the Custodian alone u/S. 8(1) of the Act. That is to say, where any property of a person has been declared evacuee property he must be deemed to be an evacuee. The only persons who could claim to be interested in the property would, therefore, be those who have not migrated to Pakistan and who may possibly claim that the property is theirs and did not belong to the evacuee. It is immaterial for the purposes of S.7 whether a particular property had actually devolved on the evacuee before migration to Pakistan or devolved later. Whatever be the point of time at which the property devolved on the evacuee it would become evacuee property in the sense that it is liable to be declared as evacuee property and to vest in the Custodian, provided that the devolution occurred before the power of the Custodian to declare any property as evacuee property came to an end underA of the Act. It is not disputed that the devolution of the Khan Bahadurs estate occurred and the declaration of Zarinas share of evacuee property was made at a time when it was competent to the Custodian to make it. Apart from that there is a good deal of force in the argument that the objection ofe of notice could properly be taken only by the person on whom the notice is not served and not by third partiesNeither of them appeared before the Custodian to assert their rights or to challinge the jurisdiction of the Custodian to proceed in the matter. Apart from that Abdulla clearly had no interest in the property under the Mohammadan law. In so far as Putli is concerned, being a daughter she would get the same share in her fathers property as Zarina add that absence of notice to her would not affect her interest in the property adversely. After all the main ground upon which the claim of the appellants is based is that the Khan Bahadur had validly disposed of the property by his. If the will is upheld it is the appellants alone who stand to gain and not Putli because all that she was to get under the will was a sum of Rs. 50,000 whereas the value of 7/48th share in her fathers property would be very much more. For these reasons we do not think that the absence of notice to these two persons affects the validity of the declaration made by the Custodian or the proceedings taken by him under the ActThe scheme of the Act does not require that grounds should be specified in the notification. But of course a sufficient description of the properties is required to be given so that the properties could be readily. In so far as items 1 to 10 are concerned it was not seriously contended before us by Mr. Agarwala that the description was inadequate. His argument concerned items 11 and 12 only. Item 11 already quoted by us pertains to the assets of the firm of which the father and the sons were partners. This, in our opinion, is sufficient to identify the assets of that film. It is item 12 which needs careful scrutiny. What is specified therein is "Properties mentioned in the Will executed by the deceased Khan Bahadur Ahmed Allanddin, and any other property left by him". In so far as the last portion is concerned, that is any other property left by him we are clear that it is far too vague and unless it is shown that a particular item falls under items 1 to 11 or is a property mentioned in the will as belonging exclusively to the Khan Bahadur it will have to be left outThe Deputy Custodian General, however, after considering the entire evidence has come to the conclusion that though the property stood in her name it was held by her benami for her husband and that, therefore, it must be treated as his property. In an appeal under Art. 136 we cannot allow a finding of fact to be challenged13. For the same reason we hold that the Market Street property found by the Deputy Custodian General to be that of the late Khan Bahadur was his and not that of Noorbanu as claimed by her. As regards Paterghatti lands the contention is that they were orally dedicated by the Khan Bahadur for charitable purposes. The Deputy Custodian General accepted the finding of the Assistant Custodian as well as the Additional Custodian to the effect that the dedication has not been proved and that no evidence was led to indicate either, the objects of the wakf or the beneficiaries thereunder. So far as the Rockland is concerned it is included in the will and the Assistant Custodian in his order dated March 31, 1956 has recorded in his finding that the appellants did not dispute the fact that this property belonged to the late Khan Bahadur. As regards the assets of the firm of Messrs Khan Bahadur Ahmed Alladin and Sons we have it from the deed of partnership dated January 5, 1947 that the Khan Bahadur had 1/3rd share therein, 7/48 share in the Khan Bahadurs share would, therefore, vest in the Custodian. It was not seriously contended by Mr. Agarwala that it did notWe agree. There is no reference to the assets of this company either in the notification or in the will of the late Khan Bahadur. In these circumstances we hold that no part of the assets of this company has vested in the Custodian. Barring this property we are satisfied that the notification sufficiently describes the late Khan Bahadurs property in which Zarina had a shareIn the first place what the various cases deal with is custom applicable to the Khojas living in the former State of Bombay. There is no evidence to indicate that such a custom obtained amongst Khojas living in other parts of the countryIt is true that the largest number of Khojas are to be found in the former State of Bombay. But it the absence of evidence it is not possible to say that Khojas wherever they may be resident in India, must be deemed to have migrated from that State. Moreover it is not disputed that large number of Khojas lived in that part of India which for some time was known as Saurashtra. It may as well be that Kohjas living in other parts of India migrated from the Saurashtra area. There is nothing to show that those who lived in Saurashtra were by custom governed by Hindu law. Apart from that even if the late Khan Bahadur or his ancestor had migrated to Hyderabad from an area in which they were governed by custom by Hindu law, after migration to Hyderabad State it was incompetent to them to plead a custom which is at variance with Mahomadan lawThe Judicial Committee of the former State of Hyderabad was at the apex of the judiciary in that State and the law laid down by it must be deemed to have been the law of Hyderabad till the Shariat Act was extended to it. In the circumstances, therefore, we hold that the Khan Bahadur was incompetent to make a will and that consequently the property left by him must devolve on his heirs as if he had died intestate. It was contended by Mr. Agarwala that the will was accepted by the heirs of the late Khan Bahadur and therefore the question of his capacity to make it could not arise. Apart from anything else, there is no proof of this on the record. We, therefore, reject his contention15. The third point raised by Mr. Agarwala concerned property which we have dealt with while dealing with the question as to the sufficiency of the notice.