ASSISTANT CUSTODIAN Vs. MATA PRASAD AND OTHERS

JUDGEMENT

(1.) One Mohd. Hanif Gul Khan applied under the U. P. Encumbered Estates Act for the liquidation of his debts. The Special Judge passed a decree on the basis of a mortgage and ultimately made an award which was in due course transmitted to the Collector for liquidation. In 1947 the sons and daughters of Mohd Hanif Gul Khan migrated to Pakistan. In 1949 Mohd. Hanif Gul Khan died. His heirs were substituted in the liquidation proceedings. After the order of stay of liquidation proceedings had been lifted, the proceedings commenced in 1954. At that stage the Custodian, Evacuee Property applied for the stay of proceedings on the plea that the property inherited by the sons of the original debtor was evacuee property and he was entitled to administer it and to liquidate the debts of the evacuees. This claim was at first accepted by the Sub-Divisional Officer but on appeal his order was reversed and the order of the Commissioner was maintained by the Board of Revenue. Aggrieved, the Assistant Custodian filed a writ petition: A learned single Judge in a very well-reasoned judgment repelled the various submission advanced in support of the writ petition and dismissed it. Hence the present appeal.

(2.) Relying on the provisions of the Administration of Evacuee Property Act the learned counsel for the appellant argued that the Assistant Custodian was in law entitled to administer and manage the properties of the evacuee and to liquidate his debts. Since the provisions of the Evacuee Property Act override all other law, the proceedings under the Encumbered Estates Act could not validly continue. Reliance was placed upon Bhanu Pratap Vs. Assistant Custodian, A.I.R. 1966 S. C. 245 . In that case it was held that the Custodian can entertain the claim of the holder of a money decree against the evacuee for satisfaction of his dues out of the assets vested in the Custodian. Sec. 17(1) does not preclude the Custodian from satisfying the debts and obligations of the evacuees. In our opinion, this case is inapplicable. In the present case the sons and daughter of the original debtor had become evacuees. They were not the debtors. They were not persons liable to pay any one anything. When the original debtor died, they inherited his estate subject to various liabilities. Sec. 50 of the U.P. Encumbered Estates Act provides:-

(3.) It is equally well settled that a legal representative cannot in the same legal proceedings put up an independent claim of his own. On being substituted he is entitled to prosecute or defend the proceedings in the same manner and on the same pleas as were or could have been taken by the original party. The Custodian as a representative of the heirs of the original debtor could not take up any fresh plea based upon the rights of the legal representatives in liquidation proceedings.