SAIRA BAI Vs. S S JOSHI

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution of India for the issue of a writ of certiorari against the Asstt. Custodian and Custodian of Evacuee Property, Indore. The circumstances leading to the petition are as follows: 1a. One Mohd. Khan s/o Karim Khan of Neemuch owned agricultural lands in four villages Chouth-Kheda, Raatdia, Jamunia and Kana-Kheda. He also owned a house No. 7 in Kotmohalla Neemuch. Besides this property he also had mortgagee rights with respect to certain lands in the village Khatria and he was in possession of them as a usufructuary mortgagee. Said Mohammad Khan had a son Asgar Hussain. Mohammad Khan by his deed dated 5-8-1935 effected 'Hiba' (Gift) of most of his property including lands in the aforesaid villages and the house in Kotmoholla Neemuch in favour of his son Asgar Hussain. The hiba-nama thus made by him was registered the same day. Mobammad Khan provided by means of a deed dated 4-1-1946 that he would give half the income out of the land in which he had mortgagee rights and which was situated in Mouja Raatdia as also land bearing Khata No. 646/ 9 (1) of Mouja Chouthkheda to his second wife Hamidunnisa as long as he was alive and that subsequent to his death she would be entitled to realise income therefrom for her maintenance and on her death those lands would pass on to whosoever be her heir. This document too was registered. Subsequent to this deed Asgar Hussain met with his death due to drowning. Hamidunnisa the second wife of Mohammad Khan migrated to Pakistan. Consequently the Asst. Custodian of Evacuee Property, Neemuch started proceedings under Section 7 of the Administration of Evacuee Property Act and issued notice to Mohammad Khan why the property of Hamidunnisa be not declared as evacuee property.

(2.) Mohammad Khan objected and contested the title of Hamidunnisa to the land covered by the deed of 1946.

(3.) The Assistant Custodian Evacuee Property, Neemuch on being satisfied that the proprietary interest in any property had not vested in Hamidunnisa closed the case by his order dated 2-2-1952. The matter was however again taken in hand by the Asstt. Custodian on representation probably made by the department that Hamidunnisa had certain property which had been given to her as her dower debt (Mehr) and that she had interest in certain other property under the deed dated 4-1-1946 which had been duly registered. On perusal of the Kazi's register and the document dated 4-1-1946 the Assistant Custodian of Evacuee Property was satisfied that none of the properties in Mohammad Khan's possession had been given in Mehr by him and the deed dated 4-1-1946 conferred only right of maintenance upon her after Mohammad Khan's death. He, consequently, again confirmed the order dated 2-2-1953 on 29-4-1952. Subsequent to this Mohammad Khan is said to have cancelled the deed dated 4-1-1946 which he had executed in favour of bis wife and published a notice to this effect and later executed a will on 18-3-1953 by which he gave his house No. 7 and land adjoining it to his daughter-in-law Sairabai and on her death to her two daughters Hajara find Amina both sharing equally. Mohammad Khan died a few days after the last mentioned document. Sairabai thereupon got her name entered on house No. 7 in the Municipal register and paid Municipal tax for the Samvat years 2009 and 2010 on 7-71954 and 14-7-1954 respectively. However on 4-4-1955 the Assistant Custodian of Evacuee Property again issued a notice in the name of Chhotibai (Hamidunnisa) wife of Mohammad Khan why she should not be declared as evacuee and the house No. 7 as Evacuee Property. Service upon Hamidunnisa, who had migrated to Pakistan was effected by substituted service. The date fixed for hearing was 3-6-1955. Sairabai on coming to know of this fact due to pasting of the notice on the house, attended the office of the Assistant Custodian and objected to these proceedings by her application dated 8-6-1955 contending that the matter had been already closed during the life-time of Mohammad Khan. She submitted a second application on 31-8-1955 stating that she and her two daughters were staying in the house in their own right under the deed of gift made by Mohammad Khan in favour of her husband in 1935. She was examined on oath by the Assistant Custodian on 31-8-1955 who by his order dated 29-11-1955 overruled her objections and held that after the death of Mohammad Khan House No. 7 mentioned in the notice under Section 7 of the Administration of Evacuee Property Act dated 4-4-1955 and other lands owned by Mohammad Khan had vested in his widow Hamidunnisa who bid migrated to Pakistan. He accordingly directed the taking over of possession of the same. Sairabai preferred appeal against this decision but the same was dismissed on 31-81956.