Har Govind v. Aziz Ahmad

796 HAR GOVIND _v._ AZIZ AHMAD & ANR. _August_ 8, 1969 [J. C SHAH, ACTING C.J., V. RAMASWAM! AND A. N. GROVER, JJ.] B _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. C 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 D E F G H ##### • **A** **B** ### **c** **D** E **F** G **H** HAR GOVIND _v._ AZIZ AHMAD _(Grover,_ _J.)_ 797 appellant to obtain the confirmation order before he could ask for any **further steps to be taken by** **the courts in the matter of execution and regis-** tration _df_ the transfer deed. [800 HJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of 1965. Appeal by speciail leave .from the judgment and decree dated May 2, 1961 -of the Allahabad High Court in Execution First Appeal No. 10 of 1954. _Naunit_ _Lal,_ for the appellant. _V._ _A. Seyid Muhammad_ and S. _P._ _Nayar,_ for the respondents. fhe Judgment of the Court was delivered by 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. 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 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. Sometimes after ·November 22, 1949 the vendor Aziz Ahmed Khan left India for Pakistan. On December 7, 1950 the appellant moved the 'Deputy Custodian (Judicial) Meerut Circle for confirmation of the transfer under s. 3 8 of the Administration of E~acuec Property Ordinance, 1949, (Ordinance No. 27 of 1949), or under s. 40 of the Administration of Evacuee Property Act 1950 _(Act_ 31 of 1950). On 9th May 1951 the Deputy Custodian accorded confirmation. The Additional Custodian, however, took _suo motu_ action in exercise of his revisional jurisdiction and set aside the order passed by the Deputy Custodian. On April 4, 1952 the appellant filed an application for execution of the decree passed on the basis of the award. On May 10, 1952 objections were filed on behalf of the Custodian to the execution. The District Judge **held** that the award made on August 30, 1949 'C&nld not have the effect of transferring the properties as the approval of the Collector had not been obtained under the notification dated July 29, 1949 which had been . ' ' ~' 798 SUPREME COURT REPORTS (1970] l S C.R. 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. 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. ( 1 ) _the_ date on which Aziz Ahmed Khan migrated to Pakistan. (2) whether the properties of Aziz Ahmed Khan vested in the Custodian of Evacuee Property under U.P. Ordinance I of 1949 or Central Ordinance 12 of 1949 as made appiicable to the State of U.P. by U.P. Ordinance 20 of 1949 or under the Centrai Ordinance 27 of 1949 or under Central Act of 1950. 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 A ###### r· E F G H A B #### c D E F ## _.c_ H HAR GOVIND _v._ AZIZ AHMAD _(Grover,_ J.) 799 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 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 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 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 Pro perty (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 notwithstanding 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 Ordina;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. 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 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 8 00 SUPREME COURT REPORTS [1970] I S.C.R 31 o( 1950 were similar though ther~ was a certain change in the language. Sub-section (!)of that section was in the following 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: 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 A B #### c D E F G H #### HAR GOVIND v. AZIZ AHMAD (Grover; r. f 8 0 I A B #### c D Jh~ confirmation or approval of the Custodian had to be obtained before the transfer documents were to be executed and completed jn accordance ·with law. It was incumbent on the appellant to obtain· the confirmation order "before he could ask for any further steps to be taken by the courts in the matter of execution and registration Of the transfer deed. Under s. 39 of the Central Ordinanc-e 27 of 1949 no document could be registered of the nature -mentioned in s. 38 11nless the Custodian had confirmed the t,ransfer;' Similar provisions were contained in s. 40 of the Central,Act. 31 .of 1950. The prayer in the Execution Appli, cati9n ma:r:;the 'court might grarit assistance "by execution of sale 9~ed UI!der;:;the: en~bling para _5_ ·of the Decree" could not be ###### .e~tertaip:ed.' iw ii~'*ded to by ti\e Executing Court. ##### . # . " There: is one matter, however, on 'which we would like to umaiisfied. -It is ~ignifi_cant that even in the award which formed the basis· of the decree' it had been provided "the second party (Aziz Ahmeq Khan) is _hereby directe<jl to execute the necessary documents in respect . of the transfer by him of the properties referred to -above within one month from the date of the receipt of the confirmation or approval according to law failing which the first· party will, at his option, get the same executed and registered through court on the basis of this award which would be' made a· rule of the court. Therefore according to the award 9~ed UI!der;:;the: en~bling para _5_ ·of the Decree" could not be ~',~ '\ ·· .. ~xprtss no ·view and leave it open to the appellant to take such E'·' .. 'stiai$' a~ he may be- adviSed. Para 6 of the award which became - part of'the decree was as follows : t-.. -· .,,. . . ·.. - "The .plaim of the first party for this transfer and -· - exchange consideration is Rs. 1,50,000/- (one lac fifty thousand) on account of all principal money and interest and other expenses C?lculated to date against the second party Sri Aziz Ahmed Khan; which the second party ~ill pay with interest at 12 p~r cent per annum in case the tran~action and transfer (lf the properties referred to above in favour of the first part Sri Sardana is not confirmed or approved in any way and for any other reasons whatsoeyer. G H '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." The High Court in the judgment 'under appeal dealt with this question as if the charge was on the evacuee property. On the reasoning which has been pressed before us about the necessity 802 SUPREME COUllT REPORTS [ 1970] l S.C.R. -0f a declaration under the provisions of Central Ordinance 27 of 1 ~49 or Central Act 31 of 1950 this pan of the judgment does not appear to be correct. We would, however, refrain from expressing any final opinion as in fairness to both sides this question should be left for being decided, if taken, in appropriate proceedings including proceedings before the Executing Court. With the above observations the appeal is dismissed but in view of the entire circumstan°es we make no order as to costs. Y.P. _Appeal dismissed._ A B