Case: Ebrahim Aboobaker and Another  Vs. Tek Chand Dolwani

2. One Aboobaker Abdul Rehman, a resident of Bombay, received on 16-12-1949, from the Additional Custodian, Bombay, a notice under S. 7 of Ordinance No. 27 of 1949 calling upon him to show cause why his interest in certain specific property should not be declared to be evacuee property. A further notice issued on 11-1-1950, required him to show cause why he should not be declared an evacuee and all his properties declared to be evacuee properties. On 8-2-1950, the Additional custodian decided that Aboobaker was not an evacuee, but at the same time issued a fresh notice to him under S. 19, requiring him to show cause why he should not be declared an "intending evacuee" and on the following day, February 9 he declared Aboobaker as an "intending evacuee" upon the same evidence. Aboobaker does not appear to have contested this order, but one Tek Chand Dolwani, first informant, carried the matter in appeal to the Custodian General, praying that Aboobaker be declared an evacuee and that the Imperial Cinema, one of his properties, be allotted to him.The Ordinance expired on 18-10-1949, and was replaced by Act 31 of 1950 (The Administration of Evacuee Property Act) which came into operation on 17-4-1950. It is not denied that although the Ordinance was repealed by S. 58, the proceedings taken in the exercise of any powers conferred by the Ordinance shall be deemed to have been taken in the exercise of the powers conferred by the Act as if the Act were in force on the day the proceedings were taken.The appeal was heard on 13-5-1950, when the preliminary objections in regard to the maintainability of the appeal were argued and the appeal was adjourned to May 15 for orders. On May 14, Aboobaker died leaving him surviving three sons and a daughter as heirs under the Mohammedan law, the sons taking 2/7th share each and the daughter 1/7th. On May 15, the Custodian General pronounced the order which was, however, dated MayBy this order he dismissed the preliminary objections and directed that further enquiries should be made and that Aboobaker be examined further on 19-8-1950. The hearing of the appeal was adjournd from time to time and was fixed for final disposal onNotice of this hearing was issued to Ebrahim Aboobaker (son ) and Hawabai Aboobaker (daughter) who owned between themselves 3/7th share to appear as the heirs and legal representatives of the deceased. The petitioners, who are residents of India - their two brothers are said to have migrated to Pakistan-filed on 26-2-1951, Misc. Petn. No. 15 of 1951, in the Punjab High Court for a writ of prohibition or for directions or order directing the Custodian General to forbear from proceeding with the hearing of the appeal or making any order in the said appeal or form declaring the properties left by the deceased as evacuee properties. The petitioners contended inter alia that after the death of Aboobaker the Custodian General had no jurisdiction to proceed with the appeal. The petition was dismissed on 24-5-1951, the High Court holding that the Custodian General had jurisdiction. Leave to appeal was granted but the High Court did not stay the hearing of the appeal by the Custodian General which was fixed for 3-7-1951, and directed that the Custodian General should not pass final orders untilOn July 3, the Custodian General heard the appeal and on July 30 which was the date fixed for final orders he declared Aboobaker to be an evacuee and his properties to be evacuee properties.On 6-8-1951, the petitioners filed a petition (Misc. Petn. No. 191 of 1951) under Art. 226 of the Constitution in the Bombay High Court against the Custodian General and the Custodian Bombay for a writ of certiorari for quashing and setting aside the said order and for an order directing the Custodian General and the local Custodian from acting upon the order or from taking possession of the property which was situate in Bombay. The petition was dismissed by Shah J. on 4-10-1951, on the ground that the Bombay High Court had no jurisdiction against the custodian General and that the petition against the local Custodian was premature. Appeal No. 88 of 1951 was flied on 5-10-1951, against the said order to the Bombay High Court. An interim order was passed whereby the petitioners undertook to keep accounts and not to dispose of the properties while the Custodian General gave an undertaking not to take possession pending the hearing of the appeal. The appeal came up for hearing on 20-11-195l, before the Chief Justice and Gajendragadkar J. but it was allowed to stand over with a view to await the decision of this court in appeal against the order of the Punjab High Court as they did not wish to pass any order which might conflict with the decision of this Court. That appeal was dismissed by this Court on.. . .. See Ebrahim Aboobaker v. Custodian General of Evacuee Property, A. I. R. 1952 S. C. 319 (A). This Court decided only the preliminary point that Tek Chand Dolwani was entitled to prefer an appeal but left the question about the jurisdiction of the Custodian General to declare the properties of Aboobaker as evacuee properties after his death open as that question was not raised before it, the order of 30-7-1951, having been passed after the filing of the appeal in the Supreme Court and also because that question was pending determination in the appeal before the Bombay High Court.Appeal No. 88 of 1951 was dismissed on 1st/ 2nd July 1952, by the Chief Justice and Gajendrgadkar J. on the preliminary ground that they had no jurisdiction to quash the order of the Custodian General passed on 30-7-1951. They declined to pass any order against the local custodian observing that they could not do indirectly what could not be done directly. A petition for leave to appeal was also rejected by the High Court on 14-7-1952.Petition No. 105 of 1952 is for special leave to appeal against the order of the custodian General dated 30-7-1951. Petition No. 106 of 1952 is against the order of the Appellate Bench of the Bombay High Court dated 1st/2nd July 1952. Petition No. 247 of 1952 is an independent petition under Art. 32 of the Constitution, challenging the order of the Custodian General dated 30-7-1951, as being in violation of the fundamental rights of the petitioners and being without

Court's reasoning:
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