LexABDUL HAKIM KHAN AND OTHERS versus THE REGIONAL SETTLEMENT COMMISSIONER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
• 1 S.C.R. SUPREME COURT REPORTS 531 ABDUL HAKIM KHAN AND OTHERS v. THE REGIONAL SETTLEMENT COMMISSIONER (B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ.) Evacuee Property-Declaration of share in joint property- Separation proceedings-Order vesting entire property in Custodian -Legality of-Evacuee Interest (Separation) Act, r95r (64 of r95r), S. II. A Muslim died leaving some property and several heirs. Some of the heirs became evacuees and their 4/7th share in the property was declared nnder s. 7 of the Administration of Evacuee Property Act, r950, to be evacuee property. There- after, proceedings were taken for the separation of the interest of the evacuees, but as none of the claimants appeared, the Com- petent Officer passed an order under s. II of the Evacuee Inte- rest (Separation) Act, r95r, vesting the entire property in the Custodian. Held, that the order vesting the entire property in the Cus- todian was illegal. The share of the evacuees had been deter- mined as 4/7ths and the Competent Officer was only required to separate it. Section II could not vest in the Custodian any ·~ property which was not evacuee property. This section deals only with cases where the whole property has been declared to be evacuee property and the claim is as mortgagor or mortgagee or to an undivided share in the property. In such cases in the absence of a claim having been filed or having been filed and found unsustainable, s. II vests the whole property in the Cus- todian. Ebrahim Aboobaker v. Tek Chand Dolwani, [r953] S.C.R. 691, referred to. ORIGINAL JURISDICTION: Petition No. 91 of 1956. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. S. P. Sinha, Shaukat Hussain, E. Udayarathnam and S. S. Shukla, for the petitioners. N. S. Bindra, R.H. Dhebar and T. M. Sen, for the respondents Nos. 1 to 4. 1961. March 22. The Judgment of the Court was delivered by I96I March 22. Abdul Hakim Khan &· Others v. The Regional Settlenient Com1nissioner Sarkar ] , 532 SUPREME COURT REPORTS [1962] SARKAR, J.-One Abdul Hai died about 1943. He left certain immovable properties. He had three wives and children by each. One of his wives predeceased him. On his death the wives and children, surviving him, succeeded to these properties in certain shares. One of the surviving wives and a daughter died sub- sequently. It appears that the remaining wife of Abdul Hai and his six children by her, went to Pakistan but the ~ time when they did so does not appear. It is not how- ever disputed that they had become evacuees and their shares in the properties could be properly de- clared evacuee property. A notice under s. 7 of the Administration of Evacuee Property Act, 1950 was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties, evacuee property. Proceedings were taken pursuant to the notice and on August 14, 1952, an order was made declaring the migrants evacuees and a 4/7th share in certain properties, evacuee property as belonging to them. Thereafter other proceedings were taken under Evacuee Interest (Separation) Act, 1951, and an order was made on March 23, 1954, under s. 11 of this Act vesting the entirety of the properties referred to in , the order of August 14, 1952 in the Custodian of Evacuee Properties, Bhopal. This petition under Art. 32 of the Constitution chal- lenges the validity of the orders of August 14, 1952, and March 23, 1954, as violating the petitioners' fun- damental right to hold property, to wit, their shares in the properties covered by the orders. It is presen- ted by the surviving children of Abdul Hai by his two deceased wives, excepting Abdul Aziz. Abdul Aziz however has been made a respondent to the petition but is not opposing it. It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties de- clared to have vested in the Custodian in their entire- ty. The petition is opposed by the other respondents, namely, the Government of India and various officers concerned with the Acts, and it will be convenient to describe them alone as the respondents. • '~ I •) 1 S.C.R. SUPREME COURT REPORTS 533 The first question raised is as to the validity of the order dated August 14, 1952, made under the Act of 1950. It is said that the order i
Excerpt shown. Read the full judgment & AI analysis in Lexace.