Case: Raja Bhanupratap Singh Vs. Assistant Custodian Evacuee Property U.P

1. Rani Manraj Koer obtained money decrees in the two suits Nos. 9 of 1932 and 42 of 1932 filed by her in the Court of the Subordinate Judge, Lucknow, against Nawab Mohammad Ali Khan Qazilbash Zamindar, Aliabad Estate, in Uttar Pradesh. From time to time execution applications were filed by the decree holder against the Zamindar, but nothing was recovered. Rani Manraj Koer died on October 1, 1941 and the appellant was brought on the record as her heir and legal representative. Nawab Mohammad Ali Khan Qazilbash also died and five persons amongst whom was one Nawab Ali Raza Khan were impleaded as legal representatives in the execution proceedings.2. In January 1950 Nawab Ali Raza Khan (Talukdar of Aliabad Estate) who was substantially the only judgment debtor from whose estate the amounts due were liable to be recovered, migrated to Pakistan and he was declared an evacuee under the provisions of the Administration of Evacuee Property Ordinance 27 of 1949-which was later replaced by the Administration of Evacuee Property Act 31 of 1950. The Custodian of Evacuee Property took possession of the estate of the evacuee and applied to the Civil Judge, Lucknow, for removal of attachment levied on the estate by the Civil Judge, Bahraich, in execution of the decrees at the instance of the appellant. The Civil Judge, Lucknow, by order, dated July 22, 1950 directed that the "transfer certificates" issued in the two decrees be recalled and the papers be consigned to the record. Against the order passed by the Civil Judge, Lucknow, appeals were preferred by the appellant to the High Court at Allahabad. By order, dated February 22, 1960 the High Court held that after the Custodian entered upon the management of the properties of the evacuee by virtue of S. 17 of the Administration of Evacuee Property Act, so long as the property remained vested in the Custodian under the provisions of that Act it was not liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or other authority.3. On September 27, 1960 the appellant applied to the Custodian for an order under S. 10 (2) (n) ofthe Administration of Evacuee Property Act, 1950, directing that his claim for Rs. 1,27,638-2-0 under the two decrees in suits Nos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to the estate of Nawab Ali Raza Khan. The Assistant Custodian General, Evacuee Property, U. P., Lucknow, exercising the powers of the Custodian rejected the application holding that he had no power to grant relief to the appellant of the nature claimed. In exercise of his revisional jurisdiction, the Custodian General Evacuee Property, New Delhi, confirmed the order, and the appellant has, with special leave, appealed against the order.

Reasoning: 8. We are, however, unable to agree that because of the amendment made in S. 10 (2) (m) and the deletion of R. 22 the power which is vested in the Custodian under S. 10 (2) (n) must be held restricted. Sub-s. (1) of S. 10 sets out the powers of the Custodian generally, and the diverse clauses in sub-s. (2) illustrate the specific purposes for which the powers may be exercised, and there is no reason to think that the clauses in sub-s. (2) are mutually exclusive. If power to pay the debts was derived both under Cls. (m) and (n) as it appears it was, deletion of the provision which authorised the Custodian to pay debts due by the evacuee to any person from Cl. (m) and of R. 22 setting up the machinery for registration of debts did not, in our judgment, affect the power which is conferred by Cl. (n) by sub-s. (2) and also by S. 10 (1). In our judgment, the power to administer is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian merely to recover and collect the assets of the evacuee, but to discharge his obligations as well. The power to administer for purposes mentioned, having regard to the diverse clauses in sub-s. (2), includes the power to pay such debts which in the opinion of the custodian are binding upon the evacuee. Specific enunciation of that power in Cl. (n) authorising the Custodian to pay to any other person who in the opinion of the Custodian is entitled to any sum of money supports that conclusion.9. As already observed, the decree of the civil Court is not decisive of the question whether a person making a claim is entitled to the sum of money claimed by him. It is for the Custodian to determine whether the claimant is entitled to receive the sum of money claimed by him out of the funds in his possession. He has to form his "opinion" on this question: of course, in forming his opinion he must act judicially and not arbitrarily. As the Tribunals below have determined the claim raised before them only on the question of jurisdiction to entertain it and not on the merits, we are unable to pass any effective order in favour of the appellant. The orders passed by the Custodian and the Custodian General must, therefore, be set aside and the proceeding remanded to the Custodian to determine the question whether in the opinion of the Custodian the appellant is entitled to any sum of money out of the funds in his possession and whether for the purpose of administration and management of the evacuee property or for enabling him to satisfactorily discharge his duties under the Act the amount claimed should be paid.