Har Govind v. Aziz Ahmad & Anr.

Grover, J. This fo an appeal by special leave from a judgment of the Allahabad High Court confirming the order of the Dis- :rict Judge dismissing an Execution Application filed by the appellant.

Or. June i6, 1948 the appellant entered into an agreement with Aziz Ahmed Khan-respondent No. 1-for the sale of certain properties comprising houses and plots in the towu of Bareilley. The sale consideration of Rs. 1,45,000/- was stated to have been already paid by the appellant to the vendor. Sub-sequently disputes arose between the vendor and the appellant regarding the completion of the sale. These disputes wece refer-ed to the arbitration of Shri R. R. Agarwal who gave an award on August 30, 1949 which was made a rule of the court on November 30, 1949. A decree on the basis of the award was granted in favour of the appellant.

Sometimes after ·November 22, 1949 the vendor Aziz Ahmed Khan left India for Pakistan. On December 7, 1950 the appel-lant moved the 'Deputy Custodian (Judicial) Meerut Circle for confirmation of the transfer under s. 3 8 of the Administration of E~acuec Property Ordinance, 1949, (Ordinance No. 27 of 1949), or under s. 40 of the Administration of Evacuee Property Act 1950 (Act 31 of 1950). On 9th May 1951 the Deputy Custo-dian accorded motu confirmation. The Additional Custodian, how-ever, took suo action in exercise of his revisional juris-diction and set aside the order passed by the Deputy Custodian. On April 4, 1952 the appellant filed an application for execution of the decree passed on the basis of the award. On May 10, 1952 objections were filed on behalf of the Custodian to the execution. The District Judge held that the award made on August 30, 1949 'C&nld not have the effect of transferring the properties as the approval of the Collector had not been obtain-ed under the notification dated July 29, 1949 which had been issued under s. 26 of U.P. Administration of Evacuee Property Ordinance No. 1 of 1949 and that on the date of the decr~e the transfer of properties could not be effected unle5' confirmed by the Custodian. It was further held by him thai no interest by way of charge in favour of the appellant had been created on the properties in dispute. He was further of the view that s. 17(1) of the Central Act of 1950 created a bar to execution -Of the decree. The Execution application was consequently dis-missed.

The appellant filed an appeal to the High Court which was dismissed. When the appeal came up for hearing before this Court on February 22, 1968 it was considered expedient to have further findings on certain points. The following questions were therefore framed and remitted to the High Court for that pur-pose.

( 1 ) the date on which Aziz Ahmed Khan migrated

to Pakistan.

(2) whether the properties of Aziz Ahmed Khan r·

vested in the Custodian of Evacuee Property under U.P. Ordinance I of 1949 or Central Ordinance 12 of 1949 as made appiicable to the State of U.P. by U.P. Ordinance 20 of 1949 or under the Centrai Ordinance 27 of 1949 or under Central Act of 1950.

The High Court remitted these matters to the District Judge. Hi< finding on the first que.stion was that Aziz Ahmed ¥.han had migrated to Pakistan on some date af!er November 22. 1949. On the second question he found that Aziz Ahmed Khan·s pro-perties did not vest ir. the Custodian of Evacuee Propcrtv under any of the Ordinances or under the Central Act 31 of 1950. Certain additional evidence was produced before the High Court. The High Court expressed agreement with the conclusion> of the District Judge on both the points. It may be mentioned that on certain subsidiary points the learned District Judge had also found that it had not been proved that a valid deciaration under s. 7(1) of the. Central Ordinance 27 of I 949 or of the corres-ponding provisivn in the Central Act 31 of 1950 was made for declaring Aziz Ahmed Khan ari evacuee. ln the opinion of the learned J udgc such a declaration was necessary if his properties were to be declared evacuee properties.

In view of the findings which have been returned by the High Court 011 the points referred, it has been contended on behalf of the appellant that there could be no bar to the e~e­ cution of the decree which was based on the award. It is pointed out that on the conclusions at which the High Court has now arrived Ihe properties of Aziz Ahmed Khan were never declared to be evacuee properties either under the Central Ordinance 27 of 1949 or the Central Act 31 of 1950, and they could not vest in the Custodian unless they had been so declared after appropriate proceedings. It is urged that the decree in favour of the appellant was of the nature of a decree passed in a suit for specific perfonnance. The court could and should have executed a conveyance in favour of the appellant since Aziz Ahmed Khan was no longer available or was refus-ing to do so and the confirmation of the Custodian could be obtained before the registration was effected. According to the counsel for the appellant the Additional Custodian had declined to confirm the transfer at the previous stage because there was no deed of sale or transfer.

Counsel for the respondent has drawn attention to a decision of this Court in Azipwnissa & Others v. The Deputy Custodian Evacuee l'roperties, District Deoria & Ors.(') in which the effect of the declaration of U.P. Ordinance 1 of 1949 to be invalid by the courts came up for the consideration, as also of the sub-sequent evacuee legislation namely, Central Ordinance 27 of 1949, Central Act 31 of 1950 and the Administration of Evacuee Pro-perty (Amendment) Act, 1960. It appears to have been held in that case that the property which had vested under the U.P. Ordi-nance 1 of 1949 continued to vest in the Custodian notwithstand-ing the fact that the High Court of Allahabad in Azimunnissa & Ors. v. Assistant Custodian(") held the vesting to be invalid. This was the result of the introduction of s. 8(2-A) in the Central Act of 1931 by the Central Amendment Act I. of 1960. 1n the pre-sent case, however,. Aziz Ahmed Khan migrated to Pakistan after Noveml;>er 22,;1949. At that point of ti.me it was Central Ordi-na;nce 27 of 1949 which was in force. It appears highly doubtful that the respondent could take advantage of the provisions of auto-matic vesting contained in U.P. Ordinance 1 of 1949.

There is, however, a serious hurdle in the way of the appel-lant even when the provisions of Central Ordinance 27 of 1949 or the Central Act 31 of 1950 arc taken into consideration. .c Section 3 8(1) of that Ordinance provided that no transfer rf

any right or interest in any property after the 14th day of August 194 7 by or on behalf of an evacuee or by or on be-half of a person who had become an evacuee after the date of the transfer shall be effective so as to confer any rights or remedies on the parties to such transfer unless it was confirmed by the Custodia,n. The provision of s. 40 of the Central Act

(I) (1961) 2 S.C:R. 91.

(2) A.I.R. 1957 All. 561. L15S·.1pCl/69 -7 31 o( 1950 were similar though ther~ was a certain change in the language. Sub-section (!)of that section was in the following terms:-

"No transfer made after the 14th day of August, 1947, but before the 7th day of May 1954, by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if, at any time after the transfer, the transferor becomes an evacuee within the meaning of section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act, unless the transfer i5 confirmed by the Custodian in accordance with the provisions of this Act".

Under both these enactments transfer of property was ineffective unless confirmed by the Custodian even if it was made by a person who became an evacuee after the date of the transfer. It was not necessary that the property should have been d~­ clared or notified to he evacuee property before the aforesaid provisions were attracted. Under s. 4011) oi the Act, the trans-fer was to be ineffective in both eventualitb; (1) if the trans-feror became an evacuee within the meaning of s. 2 after the transfer or (2) if the transferor's property had been declared or notiiicd to be evacuee pwpcrty. It is abundantly clear that if At.iz Ahmed Khan became an evacuee even after the trans-fer, s. 38(1) of the Ordinance and s. 4(111) o[ the Act be.ceme applicable. One of the meanings of the word "evacuee" as ~iven in the definition in s. 2\d) of the Ordinance and of the Act \\'<.IS:-

Section 2(d) (i) "evacuee" means any person,- who, on account of the setting up of the Dominions of Jndia and Pakistan or 011 account of civil distur-bances or the fear of such disturba11ces leaves or has, on or after the !st day of March, 1947, left any place in a Province for nny place outside the territories now forinin;i part of India,"

Aziz Ahmed Khan became an evacuee within the meaning ol the above definition. It was necessary. therefore, for the appellant to have obtai11cd the confirmation of the Custodian in respect of the trat.sfer which had been made by Aziz 'Ahmed Khan in his fayour of the properties in question. The Additional Custodian declined to confirm the transfer and thus the con-dition precedent for the transfer to become effective remained umaiisfied. -It is ~ignifi_cant that even in the award which form-ed the basis· of the decree' it had been provided "the second party (Aziz Ahmeq Khan) is _hereby directe<jl to execute the necessary documents in respect . of the transfer by him of the properties referred to -above within one month from the date of the receipt of the confirmation or approval according to law failing which the first· party will, at his option, get the same executed and registered through court on the basis of this award which would be' made a· rule of the court. Therefore according to the award Jh~ confirmation or approval of the Custodian had to be obtained before the transfer documents were to be executed and completed jn accordance ·with law. It was incumbent on the appellant to obtain· the confirmation order "before he could ask for any further steps to be taken by the courts in the matter of execution and registration Of the transfer deed. Under s. 39 of the Central Ordinanc-e 27 of 1949 no document could be registered of the nature -mentioned in s. 38 11nless the Custodian had confirmed the t,ransfer;' Similar provisions were contained in s. 40 of the Central ,Act. 31 .of 1950. The prayer in the Execution Appli- , cati9n ma:r:;the 'court might grarit assistance "by execution of sale 9~ed UI!der;:;the: en~bling para 5 ·of the Decree" . could not be .e~tertaip:ed.' . iw ii~'*ded to by ti\e Executing Court.

" There: is one matter, however, on 'which we would like to ~xprtss no ·view and leave it open to the appellant to take such E'·' 'stiai$' a~ he may be-adviSed. Para 6 of the award which became

part of'the decree was as follows :-

t-.. -· .,,. .

. ·.. · "The .plaim of the first party for this transfer and -· · exchange consideration is Rs. 1,50,000/- (one lac fifty

thousand) on account of all principal money and interest and other expenses C?lculated to date against the second party Sri Aziz Ahmed Khan; which the second party ~ill pay with interest at 12 p~r cent per annum in case the tran~action and transfer (lf the properties referred to above in favour of the first part Sri Sardana is not confirmed or approved in any way and for any other reasons whatsoeyer.

'sri Sardana will Jorce the payments against the properties r,eferred to above ;,tnd these properties are here'by charged with this cfaim and Sri Sardana will have" l;lis remedies to enforce the payment of the above claim· against all other properties of the second party and also against his persmi."

The High Court in the judgment 'under appeal dealt with this question as if the charge was on the evacuee property. On the reasoning which has been pressed before us about the necessity -0f a declaration under the provisions of Central Ordinance 27 of 1 ~49 or Central Act 31 of 1950 this pan of the judgment does not appear to be correct. We would, however, refrain from expressing any final opinion as in fairness to both sides this question should be left for being decided, if taken, in appropriate proceedings including proceedings before the Executing Court.

With the above observations the appeal is dismissed but in view of the entire circumstan°es we make no order as to costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of 1965.

Appeal by speciail leave .from the judgment and decree dated May 2, 1961 -of the Allahabad High Court in Execution First Appeal No. 10 of 1954.

Naunit Lal, for the appellant.

V. A. Seyid Muhammad and S. P. Nayar, for the respondents.