UNION OF INDIA Vs. ISMAIL ABDUL SHUKOOR

JUDGEMENT

(1.) SHOP No. 142 (bearing Municipal No. 253) of Ward No. 7 at Burhanpur was owned by a firm of 'messrs. Haji Karim Noor Mohammad' carrying on business at itwari Bazar, Nagpur. Two partners of the firm, namely, Abdul Sattar Mohamed and Haii Ibrahim Abdul Shakoor, were doing business at Karachi since 1946. They continued to remain at Karachi even after the partition of India. These two partners were treated as 'evacuees' The Assistant Custodian of Evacuee property burhanur therefore, took possession of the abovesaid pro- perty and referred the matter to the Competent Officer, Nagpur, for separation of the evacuees' interest in the said firm. The Competent Officer thereupon issued to the firm a notice; under Section 6 of the Evacuee Interest (Separation) Act, 1951, in response to which the plaintiffs, who are the remaining partners, preferred their claims. The objection taken by the plaintiffs in response to the notice was that as the property was not declared 'evacuee property', it did not vest in the Custodian. The Assistant Custodian, burhanpur, however, overruled the objection on the ground that the property had automatically vested in the Custodian, immediately on the partition of India and no declaration was necessary. The Assistant Custodian also directed the plaintiff to pay rent at Rs. 40/- per month from 15-8-1947 to 27-4-1955 for the period during which the properly remained in possession of the firm. The Assistant. Custodian also gave the property to defendant No 4 on rent of Rs. 40/- per month. Against this order the plaintiffs had preferred a revision before the Additional custodian, Nagpur, which was dismissed by his order dated 2-1-1957. Another revision preferred before the Custodian General. Delhi, was also dismissed by the said authority on 26-10-1959. Thereafter, the plaintiffs served on the defendants necessarv notices under Section 80 of the Code of Civil Procedure and filed the present suit for possession of the property and also for mesne profits. The trial court held in favour of the plaintiffs and passed a decree as prayed for. The Union of India, the Regional settlement, Commissioner and the Assistant Custodian, evacuee Property, have, therefore, preferred this appeal.

(2.) THE plea of the plaintiffs that Haji Ibrahim Abdul Shakoor and Abdul Sattar mohammad had started separate business at Karachi and that the firm 'messrs haji Karim Noor Mohammad was dissolved and that a new firm of the same name with the plaintiffs only as the partners was started was negatived by the trial Court and it was held that the said two partners had interest in the partnership assets of the firm. Before us also no material was placed to enable us to take a different view. We therefore confirm that finding of the trial Court. The trial Court, however, following the decisions in Azizun Nisa v. Asst. Custodian air 1957 All 561, Darshan La1 v. R. L. Aggarwal, AIR 1959 Punj 96, and Rubab bai v. Asst. Custodian. Evacuee Property. Indore, AIR 1962 Madh Pra 38 held that though under the C. P. and Berar Administration of Evacuee Property Ordinance. 1949 (No. III of 1949 the property had vested in the Custodian, the repeal of the ordinance by the Administration of a Evacuee Property Ordinance. 1949 (No. XXVII of 1949 ). promulgated bv the Central Government, had the effect of rendering the vesting ineffective and inasmuch as no action was taken under section 7 of the Ordinance No. XXVII of 1949, it could not be held that the property had vested in the Custodian at any time, The decision of the Supreme court in Azimunnissa v. Deputy Custodian, Evacuee Properties Deoria, AIR 1961 sc 365 (1) was distinguished by the trial Court. The main question, therefore, that arises before us is as to whether the trial Court was right in holding that the property had not vested in Custodian.

(3.) IN exercise of the powers conferred by Section 83 of the Government of India act, 1935. the Governor of the Central Provinces and Berar was pleased to issue the Central Provinces and Berar Ordinance No. III of 1949 styled as 'central provinces and Berar Administration of Evacuee Property Ordinance. 1949'. Section 5 of the said Ordinance provides that subject to the por-visions of the Ordinance, all evacuee property situated in a province shall vest in the Custodian for that purpose. Section 6 (1) then provides that the Custodian may, from time to time, notify, either bv publication in the Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under the Ordinance. The notification is to be issued of the vested property which has vested in the Custodian by operation of Section 5 (1) of the Ordinance. The vesting is thus not dependent on any notification being issued by the Custodian. Sub-section (2) of Section 6 further makes it clear that where after the vesting of any evacuee property in the custodian any person is in possession of any such property, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or any person duly authorised by him in this behalf. From this provision it is clear that the plaintiffs, who claimed to have remained in possession of the property, were deemed to have held the property on behalf of the Custodian and were bound to surrender the possession on demand by the custodian. Section 2 of the Ordinance defines "evacuee", "evacuee property" "property" and "unauthorised person". If all these definitions are read together, no manner of doubt is left that the two partners, namely. Haji Ibrahim Abdul Shakoor and Abdul Sattar Mohammad when they continued to live at Karachi after the partition of India, became 'evacuees' and the interest held by them in the partnership property became 'evacuee property'. The State Ordinance No. III of 1949 was repealed by the Administration of evacuee Property Ordinance, 1949 (No. XXVII of 1949 ). promulgated by the governor-General. Section 7 of the Ordinance provided that where the Custodian was of opinion that any property was evacuee propertv within the meaning of the ordinance, he might, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. Subsection (1) of Section 8 then provided that any property declared to be evacuee property under Section 7 would vest in the Custodian. Sub-section (2) of Section 8 made a further provision to the effect that where immediately before the commencement of the Ordinance any evacuee property in a province had vested in any person exercising the powers of a custodian under any law repealed by the Ordinance, the evacuee property would on the commencement of the Ordinance, be deemed to have vested in the custodian appointed or deemed to have been appointed for the province under the ordinance and would continue to so vest. It is thus clear that under the Central Ordinance, if any property had already vested in the Custodian by operation of any law on the day the Ordinance was promulgated the vesting was deemed to be under the Ordinance and that in such a case no steps under Section 7 to declare the property as evacuee property were necessary. The combined effect of Ordinance No. III of 1949 of the Central provinces and Berar Ordinance No. XXVII of 1949, therefore, is that the property, which automatically vested under Ordinance No. III of 1949, was continued to be so vested under Ordinance No. XXVII of 1949.