SHANTI DEVI Vs. DEPUTY CUSTODIAN GENERAL

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution filed by Smt. Shanti Devi challenging the action of the Managing Officer-cum-Assistant custodian, Karnal, respondent No. 2 in recovering certain money from her

(2.) ACCORDING to the allegations of the petitioner, she was the widow of Sant Ram alias Mohd. Sadiq, who was one of the Proprietors of firm Mohd. Sadiq-Ibrahim situate at Karnal. This firm dealt in limber business. Originally, the partners of this firm were Sant Ram alias Mohd. Sadiq. Mohd Ibrahim and one Bundu. Mohd. Ibrahim separated before the partition of this country and His firm was carried on by the remaining two partners. Bundu later on migrated to Pakistan and he, consequently, became an evacuee. Some of the amount belonging to the firm was given to Bundu, but he opened an account in his own name in the local Branch of the Punjab National Bank. At the lime of the partition of the country, a sum of Rs. 13,516-11-9 stood to the credit of Bundu in the profit account of this firm, whereas he had taken a sum of Rs. 12,060-13-0 belonging to the firm, which was lying to his credit in the Punjab National Bank at Karnal. On a complaint having been made to the Custodian Department, the matter was looked into by the district Rent and Managing Officer, cum Assistant Custodian, Karnal. On 8th november 1960 he came to the conclusion that the petitioner was liable for the payment of the entire amount of Rs. 13,516-11-9 to the Custodian, because she had failed to produce any evidence to show that Rs 12,060-13-0, which were lying to the credit of Bundu in the Punjab National Bank at Karnal, belonged to the firm. This sum of Rs. 12,060-13-0 had since been transferred to Pakistan al the instance of Bundu. The petitioner then filed an appeal before the Deputy Custodian General of India, New Delhi, respondent No 1, who dismissed the same on 25th of April 1961 remarking, "if the firm permitted Bundu to keep the money of the firm in his own name and Bundu taking advantage of that fact ran away to Pakistan with the money, the Custodian cannot be made responsible for his acts. So far as Bundu's money is concerned, it is admittedly with the firm and that money Custodian can justly demand from the firm. The firm cannot take advantage of its own default in letting Bundu keep the money in his own name. " Against this order, the present writ petition was filed on 10th November 1961.

(3.) LEARNED counsel for the petitioner submitted that though it was true that in the books of the firm a sum of Rs. 13,616-11-9 was standing to the credit of Bundu, but the firm had allowed him to keep Rs. 12,060-13-0 in his personal account in the Punjab National Bank Limited, Karnal Since Bundu had got this money transferred to Pakistan, the firm was responsible only to pay the balance to the custodian, who stepped into the shoes of Bundu. It was also contended that the custodian could not call upon another partner of the firm, namely the petitioner to pay the amount due to the evacuee partner to him. For that purpose, it was essential that he should bring a suit for dissolution of partnership and rendition of accounts and whatever was then found due to that evacuee should be recovered from the other partner, who remained in India. It was further argued that even bundu could not demand this amount from the petitioner, unless all the accounts of the firm had been gone into in a regular suit for dissolution of partnership and rendition of accounts.