Ebrahim Aboobaker and Another v. Tek Chand Dolwani

Ha!an J. appreciate the point arising for consideration in this

case, it will be necessary to set out a few preliminary facts:--

One Aboobaker Abdul Rehman, a resident of Bom-bay, received on December 16, 1949, from the Addi-tional Custodian, Bombay, a notice under section 7 of Ordinance No, XXVII of 1949 calling npon him to show canse why his interest in certain specific pro-perty shonld not be declared to be evacuee property. A further notice issned 0'1January11, 1950, required him to show cause why he should not be declared an evacuee and all his properties declared to be evacuee properties, On February 8, 1950, foe Additional Custodian decided that Aboobaker was not an evasuee, but at the same time issued a fresh notice to him under section 19, requiring him to show cause why he should not be declared an "intending evacuee" and on the following day, February 9, he declared Aboo-baker as an "intending evacuee" upon the same evid-ence. Aboobaker does '10t appear to have contested this order, but one Tek Chand Dolwani, first infor-mant, 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 Ordinanc~ expired on October 18, 1949, and was replaced by Act XXXI of 1950 (The Administra-tion of Evacuee Property Act) which came into operation on April 17, 1950, It is not denied that although the Ordinance was repealed by section 58, the proceedings taken in the exercise of any powers conferred by the Ordinance shall be deemed to have been taken in the exercise of the powers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 1953 the Act as if the Act were in force on the day the proceedings were taken. Ebrahi"1i Aboob11ker The appeal was heard ou May 13, 1950, when the and Another preliminary objections iu regard to the maintainabi-v. lity of the appeal were argued and the appeal was Tsk Chanel adjourned to May 15 for orders. Ou May 14, Aboo-Dolwani. baker died leaving him surviving three sons and a Ghulam daughter as his heirs under the Mohammedan law, Haaan I. tbe sons taking 2/7th share each and the daughter I/7th. On May 15, the Custodian General pronoun-ced the order which was, however, dated May 13. By this order he dismissed the preliminary objections and directed that further enquiries should be made and that Aboobaker be examined further on August 19, 1950. The hearing of the appeal was adjourned from time to time and was fixed for final disposal on March 7, 1951. Notice 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 February 26, 1951, Miscellaneous Petition No. 15 of 1951, in the Punjab High Court for a writ of pro-hibition 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 from 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 May 24, 1951, the High Court holding that the Custodian General had jurisdiction. Leave to appeal was grant-ed but the High Court did not stay the hearing of the appeal by the Custodian General which was fixed for July 3, 1951, and directed that the Custodian General should not pass final orders until July 23, 1951. On July 3, the Custodian General heard the appeal and

694 SUPREME COURT REPOR'fS [1953]

1958 on July 30 which wa> the date fixed for final orders

he declared Aboobaker to be an evacuee and his pro-Ebrahirn perties to be evacuee properties.

Aboobaker and Another On August 6, 1951, the petitioners filed a petition

v. (Miscellaneous Petition No. 191 of 1951) under arti-Tek Chand cle 2:26 of the Constitution in the Bombay High Dolwani. Comt against the Custodian General and the Custo-GlM,larn dian, Bombay, for a writ of certiorari for quashing and Jlasa1i J. 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 October 4, 1951, on the ground that the 3ombay High Court had no jurisdiction against the Custodian General and that the petition against the local Custodian was pre· mature. Appeal No. 88 of 1951 was filed on October 5, 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 tbe appeal. The appeal came up for hearing on November '20, 1951, 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 May 26, HJ52. See Ebrahim Aboobaker and Another Y. Ciistodian General of Evacuee Property.'). 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 pro-perties after his death open as that question was not raised before it, the order of the 30th July, 1951, having been passed after the filing of the appeal in the Supreme Court and also because that questioI1 was pending determination in the appeal before the 1968 Bombay High Court.

Appeal No. 88 of 1951 was dismissed on 1st/2nd Ebrahim Aboobn.ker July, 1952, by the Chief Justice and Gajendra-and Another gadkar J. on the preliminary ground that they had no v. jurisdiction to quash the order of the Custodian Tek Oh•11d General passed on 30th July, 1951. They declined to Dolwani. pass any order against the local Custodian observing Ghula1n that they could not do indirnctly what could not be Hasan J. done directly. A petition for leave to appeal was also rejected by the High Court on the 14th July, 1952.

Petition No. 105 of 1952 is for special leave to appeal against tpe order of the Custodian General dated July 30, 195l. 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. 24 7 of 1952 is an independent petition under article 3:.l of the Constitution, challenging the order of the Custodian General dated July 30, 1951, as being in violation of the fundamental rights of the petitioners and being without jurisdiction.

'rek Chand Dolwani has filed a caveat against the Petition No. 105 of 1952, while the petition under article 32 has been heard upon notice to the Custo-dian General. In this petition it is submitted that on a true construction of the relevant provisions of the Ordinance and the Administration of Evacuee Pro-perty Act, the Custodian General had no jurisdiction to hear the appeal after the death of Aboobaker, or to make any order declaring the properties left by him to be evacuee properties as the appeal abated on his death and the propertie:> 1·ested in specific shares in his heirs under the Mohammedan law. It was urged that as the said properties did not fall within the definition of evacuee property on the 30th July, 1951, or at any time after the death of Aboobaker, the Custodian General had no jurisdiction to declare the properties to be evacuee properties. As a matter of fact, the deceased had no right, title or interest in the said properties after his death; nor were the said pro-perties acquired by his heirs by any mode of transfer

1958 from the deceased. The order of the 30th July, 1951,

is challenged as heiug void and inoperative as it Ebr(lhini yiolates the fundamental rights of the petitioners Aboobaker under articles 19(1) (f) and 31(1) of the Constitution. and Another

v. 'rhe petitioners pray for the issue of a writ of certiorari Tek Chand .against the Cuotodian General calling for the records Dolwani. of the case relating to the above order and after look-

ing into the same and going into the question of the Ghularn legality thereof quash and set aside the same. They Hasan J.

also ask for a writ of prohibition or mandamus or directions or an order or a writ directing the Custodian General, his servants and agents to forbear from acting upon or enforcing the order dated the 30th July, 1951, or from taking any ;;tops or proceedings in enforce-ment of the same. We heard the petitioners and the Solicitor-General on the petition under article 3:2 and reserved orders till we had heard Dolwani who was the caveator in the application for special leave to appeal. Dolwani was served with a notice personally and through his ageut but neither put in appearance. We granted the appliclltion for leave to appeal against the order of the Custodian General and directed the appeal to be posted for hearing along with the appli-cation under article 3:2. Dolwani again did not appear and we proceed, therefore, to dispose of the appeal and the petition by a common judgment.

The crucial question which arises for consideration before us is ,whether a person can be declared an evacuee after his death and whether the properties which upon his death vest· in his heirs under the Mohammedan law can be declared evacuee proper-ties. Before we proceed to determine that question we must notice the objection raised by the Solicitor-General about the maintainability of the petition under article 3:2 of the Constitution. He contends that t,here is no question of any infraction of funda-mental 1righ t in the present case as the petitioners have not beeh deprived of any property without the authority of law. The Gustodian General, it is said, undoubtedly purported to act under an express statutory enactment. He might have misapplied or misappreciated the law or committed an error in the 1963 assumption or exercise of jurisdiction, but that would not bring the case within tbe purview of article 31 (1) Ebrahini read with article UJ( I) (f) of the Constitution. The Aboobnker and dn.other point is debatable and we do not desire to express v. any opinion upon this point as we propose to T•k Chand examine the validity of the order of the Custodian Dolwani. General dated July 30, 1951, in the appeal (Civil Appeal No. 65 of 1953) which arose out of Petition Ghulani Hasan J. No. 105 of 1952 for special leave and not on the petition under article 32.

Section 2 (d) and (f) define "evacuee" and "evacuee property" respectively as follows:-

(d) "Evacuee" means any person,- (i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil distnrbances or the fear of such distnrbances, leaves or has, on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India, or

(ii) who is resident in any place now forming part of Pakistan and who for that reason is nnable to occupy, supervise or manage in person his property in any part of the territories to which this Act ex-tends, or whose 'property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied, super-vised or managed by an unauthorised person, or

(iii) who has, after the 14th day of August, 1947, obtained, otherwise than by way of purchase or ex-change. any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan;

( f} " Evacuee property " means any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity), and includes any property-

(1) which has been obtained by any person from an evacuee after the 14th day of August, 1947, by

698 SUPREME COURT, REPORTS [1953]

1953 any mode of transfer, unless such transfer has been

confirmed by the Custodian.

Ebr11.hint AboobJker The u>e of the present tense "leaves" or "has left" and Another in the definition of evacuee and "bas" in the defini-

v. tion of evacuee property is relied upon in support of Tek Chand the contention that tbe object of the legislature in Dolwani. enacting these provisions was to confine their opera-Gkulani tion to a liviµg psrson only. This line of argument Hasan J. may not per se be of any compelling force but it

receives support from the rest of the provisions of the Act to which reference will be made hereafter. It may, however, be pointed out here that clause (£) (l) will not apply to the case of the petitioners for they do not claim the property from the evacuee after the 14th day of August, 1947, by any mode of transfer but by right of succession under the Mohammedan law. Succession to property implies devolution by opera-tion of law and cannot appropriately be described as a mode of tra.nsfer, a~ contended for by the tiolicitor-General, which ob,-ionsly contemplates a transfer inter vivos.

Section 7 r.efer' to the notification of tbe evacuee property. It lays down that "where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after hold-ing such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property."

Rule 6, which is framed in exercise of the powers conferred by section 56 of the Act, lays down the manner of inquiry under section 7 and is as follows:-

" (1) Where the Custodian is satisfied from inform-ation in bis possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served, in .Form No. 1, on the person claiming tit'.e to such property or in-terest and on any other person or persons whom he 9onsiders to be interested in the property.

{2) The notice shall, as far as practicable, mention 1953 the grounds on which the prop~rty is sought to be declared evacuee property and shall specify the pro-Ebrahini Aboobiks1· vision of the Act under which the person claiming and Another ·any title to, or interest in, such property is alleged v. to be an evacuee. Tek Chand Dolwaiii. (3) The notice shall be served personally, but if that is not practicable the service may be effected in Gh1,l1un any manner provided in rule 28. (Tbis rule refers to Hasan J. a mode of substituted service).

( 4) Where a notice has been duly served, and the party called upon to show cause why the property should not be declared an evacuee property, fails to appear on the date fixed for hearing, the cu~todian may proceed to hear the matter ex parte and pass such order on the material before him as he deems fit.

(5) Where such party appears and contests the notice he shall forthwith file a written statement ver1 lied in the same manner as a pleading under the Code of Civil Procedure, 1908, stating the reasons why he should not be deemed to be au evacuee and why the property or bis interest-therein should not be declared as evacuee property. Any person or perwns claiming to he interested in the enquiry or in tbe property being declared as evacuee property, may file a reply to such written statement. Tbe Custodian shall then, either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party appearing to show cause way produce and also evidence which tbe party claiming to be interested as mentioned above may adduce.

(6) After the whole evidence has been duly record-ed in a summary manner, the Custodian shall proceed to pronounce his order. The order shall state the points for determination, and the findings thereon with brief reasons."

Form No. 1 in Appendix A to the ndes (s a,:;

follows:-

195.1 "WHEREAS there is credible information in

possession of the Cµstodian that you are an evacuee Ebrahitn under clause (iii) of sectiori 2(d) of the Administration Aboob iker and Another of 1£vacuee Property Act on account of the grounds

v. mentioned below:- Tek Chand AND WHEHEAS it is desirable to hear you in Dolwani. person;

Ghulatn Now, therefore, you are hereby called upon to show Hasan J. cause (with all material evidence on which you wish

to rely) why orders should not be passed declaring yon an evacuee aud all your property as evacuee property under the provisions of the said Act.

Deputy -------Custodian." Assistant The next important section is secti,on 8 the relevant portion of which is as follows:-

" (l) Any property declared to be evacuee property under section 7 shall be deemed to have veoted in the Custodian for the State,-

(a) in the case of the property of an evacuee as defined in sub-clause (i) ot clause (d) of section 2, from the date on which he leaves or left any pl.ace in a State for any place outside the territories now forming part of India;"

If we substitute in section 8 the defiriition of evacuee property given in section 2, the meaning of section 8 will become clearer. Any property declared to be:

(i) property in which an evacuee has any right or interest,

(ii) property wbich has been obtained by any person from an evacuee after the 14th of August, 1947, by auy mode of tran8fer unless that transfer has been confirmed by the Custodian under section 7, shall be deemed to have vested in the Custodian for the State:

(a) in the ca8e of the property of an evacuee as. defined in sub-clause (i) of clause (d) of section 2, from the date on which he leaves or left any place in 1968 a State for any place outside the territories uow form-ing part of India." Ebrahini Aboobaker The language of the rule read with the Form given and Another above, the notice issued to the person claiming v, interest in the property which, according to the • Tek Chand information in the possession of the Custodian, is D.olwan.i. prima facie evacuee property, the manner of its Ghulam service and the mode of inquiry, lead to the unmistak-Hasan J. able conclusion that the object of section 7 was to take proceedings against a living person and to tbat extent the use of the present tense in the definition of "evacuee" and "evacuee property" lends corrobora-tion to the contention raised that the proceedings are intended to be applicable to living persons only. 'l'he property which is declared to vest under (i) must be one in which an evacuee has any right or interest but the deceased has no right or interest after bis death as his property vests in his heirs. Nor does (ii) apply as petitioners have not obtained the property from an evacuee by any mode of transfer.

It is obvious that property must be declared to be eva.cuee property under section 7 before it can vest under. section 8. There is no doubt thaR when the property does so vest the vesting takes effect retros-pectively, 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 of law. To take a simple illustration, if a person leaves India after the 1st of March, 1947, tb,e date given in section 2(d), and dies in Pakistan before any notice is issued to him under section 7 and before any inquiry is held in pursuance thereof, it is obvious that the heirs, who have succeeded to his property, cannot be deprived of it by conducting an inquiry into the status of the deceased and investigating bis right or interest in property which bas already devolved on legal heirs. Section 8 in such a case will not come into play and there can be no vesting of the property retros-pectively before such property is declared as e1'acuee

J9!J3 property within the meaning of section 2(£) of

the Act.

Ebrahini Abooba.ker Reading sections 7 and 8 together it appears that and A1iother the Custodian gets dominion over the property only

v. after the declaration is made. The declaration follows T6lc Cha.nd. upon the inquiry made under section 7, but until the Dolwani.

proceeding is taken nuder section 7, there can be no O-h1dain vesting of the property and consequently no right in flasan J. 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 heir>. The enquiry under section 7 is a condition precedent to the making of a declara-tion under section 8 and the rig ht of the Custodian to exercise dominion over the property does not arise until the declaration is made. · Tbere is no reason therefore why the heirs should be deprived of their property before-the Custodian obtains dominion.

'rhe matter may be looked at from another point of view. Section 141 of the Civil Procedure Code wbich makes the ·procedure of tbe 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, thougb the proceedings held by him are of a quasi-judicial nature. 8ection 45 of the Act applies the provisions of the Code only in respect of enforcing the attendance of any person and examining him on 011th and compelftng the discovery and production of documents.

The provisions of the Code relating to substitution are, therefore, inapplicable and there is no other pro-vision 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 tbe death of the alleged evacuee, it is logical to hold that tb ey cannot be initiated against them. We hold, therefore, that the 1953 proceedings must.Japse upon the death of such person.

There is no provision in the Act that after a man Ebrahitii Aboob•ker is dead, his property can be declared evacuee property. and Another If such a provision had been made, then the vesting v. contemplated in section 8 of the Act would have by Tek Ohand its statutory force displ:j;ced tbe vesting of the pro-Dolwa1~i. perty under the Mohammedan law in the heirs after Ghulani death. It is a well recognised proposition of law that ·Hasan J. the est1:1te of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and tbe devQlution is neither suspended by reason -of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of !be debts. It is also well understood that property vests in the heir"s under the Mohammedan law, unlike the.Indian Succession Act, without the intervention of an administrator.

Section 40 of the Act imposes a restriction upon the right of an evacuee to transfer property after the 14th August, 194 7. This section prohibits transfers inter vivos but cannot affect devolution by operation of law such as, on death. According to this section where the property of a person is notified or declared to be an evacuee property, he cannot transfer that property after the 14th of August, 1947, so as to con-fer any right on the transferee unless it is confirmed by the Custodian~ This shows that a transfer bet-ween the 1st of March and the 14th of August, 1947, is immune from the disability of being treated as evacuee property notwithstanding the fact that the transferor migrated after the lst of March. If he made a bona fide transfer of bis e\jtire property before the 14th of August, 1947, then the property does not acquire the character of evacuee property and such a transfer does not require confirmation by the Custo-dian, altho~gh all transfers after that date are held suspect. If tbe transfer between the two crucial dates· is held valid, then on a parity of reasoning tho death of the transferor before the declaration after the 14th of August should lead to the same re~ult.

70.4 SUPREME COURT REPOR'rS (1953]

1968 It was contended before us that the Act aims at

fixing the nature of the property from a pa_rticula.r Ebrnhim date and that the proceedings taken are agamst the Aboob'lker property and not against the person. This argument and Another

v. is fallacious. There can be no property, evacuee or Tek Chand otberwisP, unless there is a person wbo owns that pro-Dolwani. perty. It is the property of the owner which is declar-

ed to be evacuee property by reason of the fact that Ghula.m be is subject to disability on certain grounds. The Hasan J •.

definition of evacuee property in the Act begins by saying "property in which an evacuee bas any right or interest in any capacity". The Act alw shows that the p rnperty cannot be notified· as evacuee property unless and until the person claiming interest in it bas been given notice.

Reference may also be· made-to section 43 as indi-cating that the declaration under section 8 was in-tended to be made during the lifetime of the alleged evacuee. This section lays down ''where in pursuance of the provisions of this, Act any property has vested in the Custodian neither the death of the evacuee at any time thereafter, nor the fact that the evacuee who had a right or interest in that property bad ceased to be an evacuee at auy material time shall affect the vesting or render invalid anything done in consequence thereof." The section shows that where the property bas vested in the Oust,odian, then the death of the evacuee or his ceasing·to be an evacuee afterwards shall not affect the vesting or render in-valid anything done in consequence thereof. The sec-tion seems to suggest that the vesting must take place in the lifetime of the alleged evacuee, otherwise there was po point in providing that the vesting will not be affected by "the death of the evacuee or the evacuee ceasing to be so.

The Solicitor-General contended that section 43 embodies th,e principle "once an evacuee always an ·evacuee". This conclrn;ion is hardly justified on the terms of section 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 prn-1953 vide for the administration of evacuee property and it is common grnund that this property bas ultimately Ebrahim to 'be used for compensating the refugees who bad Aboobnker and Another lost their property in Pakistan'. The Act contains v, elaborate provisions as to how the administration is Tek Chand to be carried ·out. Dolwani.

Section 9 ·enables the Custodian to take possession ol the evacuee property vested in him under section 8 Ghutant Hasan J. and section 10 which defines the powers of the Custo-dian generally enables him to take such measures as be considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property. These are mentioned in detail in sub-section (2) of section 10, clause (j), which autho-rises the Custodian to institute, defend or continue any legal proceedmgs in any civil or revenue Court on behalf of the evacuee.

Section 15 imposes an obligation on him to main-tain a separate account of the property of each evacuee.

Section 16 em powers the Custodian to restore the evacuee property upon application to the evacuee or any person claiming to be his heir provided he pro-duces 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 per-son may be entitled to enforce against the person to whom the property bas been so restored. -

By section 52 of the Act it is open to the Central Government by notific:otion in the Official Gazette, to exempt any person or class of persons or any pro-perty 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 the 3rd July, 11!50,'which was published in tbe Ga7.ette of India, Part II, section 3, 1958 dated the 15th July, 1950, page 254, in which broadly

three categorie·s of persons were exempted: -- Ebrahini Aboobnker (a) Any person who on or after the 1st day: of and Another March, .1947, migrated from India to Pakistan but

v. had returned to India before the 18th day of July, Tek Chand 1948, and had settled therein;

Dolwani. (b) Any person who has left or le·aves for Pakis-Ghula1n tan on a temporary visit taking with himself a "No Hasan J. 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 the 18th day of October, l949, under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India.

These provisions far from suggesting that the per-son declared an evacuee suffers a civil death and re-mains an evacuee for all time show on the other hand that the person may cease to be an erncuee under certain circumsta·-rces that he is reinstated to his original position and his property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property wb1cb any other person may he entitled to enforce against him. These provisions also establish that tbe fact of a pro-perty being evacuee property is not a permanent attribute of rnch property and that it may qease to be so under gi.,en conditions. Tbe property does not suffer from any inherent infirmity but becomes evacuee property because of tbe disability attaching to the owner. Once that disability ceases, tbe pro-perty is rid of that disability and becomes liable to be restored to the owner. •

Mr. Desai counsel for the petitioner referred i.n the course of the arguments to section 93 of the Presi-dency Towns Insolvency Act and section 17 of the Provincial Insolvency Act. According to the former "if a debtor by or against whom an insolvency peti .. tion has been presented dies, tbe proceedings in the matter shall, unless the Court otherwise orders, be 1908 continued as if he were alive". By the latter section "if a debtor by or against whom an insolvency peti-Ebrahim Aboob'1ker tion has been presented dies, the proceedings in the and Another matter shall, unless the Court otherwise orders, be v. continued so far as may be necessary for the realisa-Tek Chand tion and distribution of the property of the debtor". Dolwani. 'rhough there is slight difference in the language of Ghularn these two sections, the principle underlying the in-Hasan J. solvency law seems to be that the death of the in-solvent 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 snch provision in the Act before us. It follows therefore that if the intention of the legisla-ture had been to treat the person proceeded agains1l under section 7 as alive for purposes of the proceed-ings even after his death, such a provision would have been incorporated into the Act.

After giving our best consideration to the case we are of opinion that the order of the 30th July, 19.51, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the pro-perty left by him as evacuee property cannot stand and must be set aside. We accordingly allow Appeal No. 65 of 19.53, arising out of Petition No. 10.5 of 19.52 and hold that the Custodian General had no jurisdiction to pass the order of the 30th July, 1951, and set it aside. We make no order as to costs.

Petition No. 106 of 1952 is not pressed and no order need be passed in respect thereto. In view of our order in Appeal No. 65 of 1953, no orders are called for in Petition No. 247 of 1952.

Appeal allowed.

Agent for the appellants and petitioners: Rajinder Narain.

Agent for the respondent in Petition No. 247:

G. H. Rajadhyaksha.