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

These are two connected appeals arising out of a. common judgment of the High Court of Patna on two applications to it dated the 5th July, 1950 and 28th July, 1950, under article 226 of the Constitution. The State of Bihar is the appellant in both the appeals. The first three respondents in Appeal No. 97 are the sons of the fourth respondent therein, viz. Kumar Rani Sayeeda Khatoon (hereinafter referred to as Kumar Rani). The said Kumar Rani is also the first respondent in Appeal No. 98. The other respondents in both the appeals are Government Officers under the appellant, the State of Bihar. The applications before the High Court arose with reference to action taken against (1) the property, and (2) the person, of Kumar Rani by the Officers of the Government of Bihar, under the followingRani was admittedly born in the territory of India and claims to be the lawfully wedded wife of Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya by virtue of an alleged marriage between them in 1920 according to Arya Samaj rites and subsequently according to Muslim rites, She owned and possessed considerable properties. In 1946 she created a wakf of her properties consisting of 427 villages for the maintenance and support of herself, her sons and their descendants, by executing a deed of Wakf-ulalAulad dated the 4th May, 1946, by which she divested herself of all her interest in the said properties and vested them in Almighty God. She appointed, herself as the sole mutwalli for her life time or until relinquishment, and her three sons to succeed her as joint mutwallis. The deed also provided that the net income was to be spent for the maintenance of herself and her three sons with the direction that not more than half should be spent by the wakifa for her own use. In July, 1948, Kumar Rani went to Karachi. In December, 1948, she returned to India from Pakistan on a temporary permit and went back to Pakistan in April,On the 21st June, 1949, the Bihar Administration of Evacuee Property Ordinance, 1949 (Bihar Ordinance No. III of 1949) came into force. The Deputy Custodian of Evacuee Property issued a notification on the 2nd September, 1949, under section 5 of this Ordinance, declaring all the properties comprised in the abovementioned wakf estate to have vested in the Custodian as being evacuee property. He took possession thereof between the 20th September and 2nd October,On the 14th May, 1950, Kumar Rani again came back to India under a permanent permit obtained from the High Commissioner for India in Pakistan. This permit was, however, cancelled on the 12th July, 1950, by the Deputy High Cominissioner, on the ground that this was wrongly issued, without the concurrence of the Government, a.-, required by the rules made under the Influx from Pakistan (Control) Act,In view of this cancellation, the Sub-Inspector of Police, Gaya, issued notice to Kumar Rani directing her that since her permanent permit had been cancelled, she should leave lndia by the 31st July, 1950. In view of these happenings two applications were filed before the High Court of Patna, one dated the 5th July, 1950, challenging the validity of the action taken by the Deputy Custodian declaring the wakf estate as evacuee property and taking posses- sion thereof on the basis of that declaration, and another application dated the 28th July, 1950, challenging the validity of the order of the Sub-Inspector of Police, Gaya, directing Kumar Rani to leave India. The first of these applications was filed by Kumar Rani along with her three sons as petitioners and the second by Kumar Rani alone. Both these applications were allowed by the High Court and hence these appeals by the State on leave granted by the High Court. These two connected appeals came up for hearing be-fore this Court on the 26th and 27th October, 1953. This Court after hearing counsel on both sides was of the opinion that one of the essential facts (to be mentioned in detail herein below when dealing with Appeal No. 97) requisite for a proper decision of Appeal No. 97 had been assumed without investigation and that it was necessary to have a finding thereupon after taking evidence. This Court accordingly re- manded Appeal No. 97 to the High Court to submit a finding and directed that on the receipt of the finding both the appeals (Appeals Nos. 97 and 98) should be heard together. The finding has now been received and the appeals have been re heard. It is necessary at this stage to mention that the advocate who appeared for the respondents in both the appeals at the prior hearing appeared before us at this hearing and stated that he had been instructed to withdraw his appearance in these appeals and to allow the hearing to proceed ex parte.The preliminary facts having been stated as above, it will now be convenient to deal with these two appeals separately. Appeal No. 98 which raises the fundamental question as to the continuing citizenship of Kumar Rani will be taken up first.Civil Appeal No. 98 ofappeal arises out of the application to the High Court dated the 28th July, 1950, challenging the validity of the order dated the 23rd July, 1950, issued by the Sub-Inspector of Police,Appeal No. 97 ofappeal arises out of the application to the High Court dated the 5th 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.

Reasoning:
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