Vendor migrated to Pakistan after agreeing to sell property; buyer sought execution of decree on an award without Custodian's confirmation. Supreme Court held transfers by persons later becoming evacuees were ineffective unless confirmed by the Custodian, no prior declaration being needed. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
796
HAR GOVIND
v.
AZIZ AHMAD & ANR.
August 8, 1969
B
[J. C SHAH, ACTING C.J., V. RAMASWAM! AND A. N. GROVER, JJ.]
Adminis1ration of Evacuee Properry Act, 1950 (3! of 1950), s. 40- Vendor migrating to Pakistan after transfer of property-Property not declared evacut: property-Validity of transfer without confirmation by Custodian-Admi11is1ration of Evacuee Property Ordinance. 1949 (27 of 1949), is. 38 and 39. The first res90ndent entered into an agreement to sell his properties to the oppellant. Disputes relating to completioo df the sale were referred to arbitration. An award was made directing the first respondent to execute the documents in respect of the transfer by him wilhin one month from the date of the receipt of the confirmation or approval according to law, failing which the appellant was at liberty to get it executed and registered through court. The award was made a rule of 'the court on November 30, 1949 and a decree on the basis of the award was granted. The fir<t respoodent left India 'for Pakistan some date after November 22, I969. The appellant moved the Deputy Olstodian of Evacuee Property for confirmation of the transfer unJer s. 38 of the Administratioo of Evacuee Property Ordlnance, 1949 or under s. 40 of the Administration of Evacuee Property Act, 1950. The Deputy Custodian accorded confirmation, but the Additional Oistodian set aside the order df the Deputy Custodian. The appellant filed an application for execution of the decree on the basis of the award lo which objections were filed by the Custodian. The District Judge held that on the date Of the decree tramfer of properties could not be effected unless confirmed by ·the Custodian, Tiie appellant's appeal to the High Court was dismissed. In appeal to this Court, it was contended that there could be no bar to tbe execution of the decree based on the award, since the respondent's properties were never declared to be evacuee properties either under Central Ordinance 27 of 1949 or Central Act 31 of 1951 and that they did not vest in the Custodian unless they were so declared after appropriate proceedings. Disrr.issing the appeal,
HELD ; Under the prov1S1ons of s. 38( I) of Central Ordinance 27 of 1949 ana s. 4-0(ll of Central Act 31 of 1951, transfer of property was ineffective unless confirmed by the Custodian even if a person became an evacuee after the date df transfer. It was not necessary that the property should have been declared or notified to be evacuee property before tho!e provisions were attracted. (800 DJ
In the present case the respondent had become an evacuee within the meaning of s. 2( d) of the Ordinance and the Act. The Additional Custodian declined to confirm the tramfer made by the respondent and therefore the condition precedent for a valid transfer remained unsatisfied. Further, even according to the award the confirmation or approval of the Custodian had to be obtained before the transfer of documents were to be executed and completed in accordance with law. It was incumbent on the
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HAR GOVIND v. AZIZ AHMAD (Grover, J.)
797
Naunit Lal, for the appellant.
V. A. Seyid Muhammad and S. P. Nayar, for the respondents.
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.
D
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. Subsequently disputes arose between the vendor and the appellant E regarding the completion of the sale. These disputes wece refered 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.
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(1970] l S C.R.
798
SUPREME COURT REPORTS
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 dismissed.
A
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 purpose.
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 properties 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 corresponding 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
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HAR GOVIND v. AZIZ AHMAD (Grover, J.)
799
A 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 B 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 refusing 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 c 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 D by the courts came up for the consideration, as also of the subsequent evacuee legislation namely, Central Ordinance 27 of 1949, Central Act 31 of 1950 and the Administration of Evacuee Property (Amendment) Act, 1960. It appears to have been held in that case that the property which had vested under the U.P. Ordinance 1 of 1949 continued to vest in the Custodian notwithstandE 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 present case, however,. Aziz Ahmed Khan migrated to Pakistan after Noveml;>er 22,;1949. At that point of ti.me it was Central OrdiF na;nce 27 of 1949 which was in force. It appears highly doubtful that the respondent could take advantage of the provisions of automatic vesting contained in U.P. Ordinance 1 of 1949.
There is, however, a serious hurdle in the way of the appellant 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 behalf 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 H 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
[1970] I S.C.R
8 00
SUPREME COURT REPORTS
31 o( 1950 were similar though ther~ was a certain change in the language. Sub-section (!)of that section was in the following
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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 transfer was to be ineffective in both eventualitb; (1) if the transferor 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 transfer, 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:-
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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 disturbances 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 condition precedent for the transfer to become effective remained
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HAR GOVIND v. AZIZ AHMAD (Grover; r. f
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'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."
[ 1970] l S.C.R.
SUPREME COUllT REPORTS
802
With the above observations the appeal is dismissed but in view of the entire circumstan°es we make no order as to costs.
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Y.P. Appeal dismissed.
3 issues framed by the court
Whether transfer of property by a person who became an evacuee after the transfer was effective without confirmation by the Custodian under s. 38(1) of Ordinance 27 of 1949 or s. 40(1) of Act 31 of 19
Whether a declaration or notification declaring the property evacuee was necessary before those provisions could apply.
Whether the decree based on the arbitration award could be executed without the Custodian's confirmation.
Colour shows how this judgement treated each authority
Azimunnissa & Others v. The Deputy Custodian Evacuee Properties, District Deoria & Ors.Referred
(1961) 2 S.C.R. 91 · Who else cites this
5 provisions across 2 enactments
Har Govind
Aziz Ahmad
Anr.
J. C. Shah
V. Ramaswami
A. N. Grover
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
