ASSTT. CUSTODIAN, E.P. & ORS. versus BRIJ KISHORE AGARWALA & ORS

Citation: [1975] 2 S.C.R. 359 · Decided: 07-10-1974 · Supreme Court of India · Bench: KUTTYIL KURIEN MATHEW · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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359 
ASSTT. CUSTODIAN, E.P. & ORS. 
v. 
BRIJ KISHORE AGARWALA & ORS. 
October 7, 1974 
[K. K MATHEW AND A. ALAGIR!SWAMI, JJ.] 
U. P. Administration of Evacuee Property Ordinance 1949 s.2(c)(i) & (i{)-Scope 
of. Custodian first stated that the property was not evacuee property and the respon· 
dent acted on it-later acquired it as evacuee property-whether Custodian bound by the 
earlier statement. 
, 
• 
The disputed property belonged to a Muslim who left"India in 1942. After 
the partition of the country she migrated to Pakistan in 1948, without coming to 
India. In 1962 she came to India and sold the property to respondent no. 1 for a 
sum of Rs. 42,000. Respondent no. I purchased the property after ascertaining 
from appellant no. 
I Custodian of Evacuee Property that the property was not 
evacuee property. Later, however, the appellant passed an order declarini: the 
prope~ to be evacuee property. On a petition by respondent no. I the Assistant 
Custodian General directed that the property be handed over to the respondent no. 
1 and the sale price deposited in the bank could be taken by the Custodian. Since 
the CustodiM did not issue a sale certificate in his favour respondent no. 1 filed a 
writ petition in the High Court which was 
dismissed by a single Judge on the 
ground that the seller was an evacuee. The Division Bench on the other hand 
held that the seller was not an evacuee under s.2 (c)(i) of the United ProvincesAdmi· 
nistration of Evacuee Property Ordinance 1949 but refused to consider whether the 
seller was an evacuee under s. 2(c)(ii) thereof. According to s. 2(c)(i) of the ordi· 
nance "evacuee" means any person who leaves or has on or after the 1st de>' of March 
. 1947, left any place in the United Provinces for any place outside the temtories now 
forming part of India while according to sub clause (ri) "evacuee" means any person 
who is resident in any place now forming part of Pakistan and is for that reason 
unable to occupy, supervise or manage in person his property in the United Pro-
vinces. 
· 
Allowing the appeal, 
(1) There could be no doubnhat the seller was an evacuee within the meaning 
of that word under s. ~c)(il) and the J?roperty in question was. evacuee property. As 
it is clear that she left the United Provmces even before the tst March 1947 and was 
in Teheran till she left for Pakistan from there cl. 2(c)(i) would not apply but cleatly 
cl. 2(c)(ii) would. Thero was no doubt that she was resident in PalciStan after the 
piirtition of India and WI!$, therefore unable to oocupy, supervise or manage her 
property in the United Provinces. (361 O; C-DJ 
(2) The fact that the first respondent had made an inquiry from the Assistant 
Custodian whether the property was evacuee property and was told that it was 
not, did not make any difference to this questio'1· (362 Al 
Howell v. Falmouth Boat Construction Co. Ltd., {19511 A.C. 837 at 845, Ebra~ 
him Abbobaker and Another _y, 'fek Chand Dolwani [ 9531 S.C.R. 691 .Zafar A/1 
Shah v. Assistant Custodian of Evacuee Property [1962] 1 SCR 749 referred to. 
. (3) Onbe it is declared that the property was evacuee property, the sum 
of 
Rs. 42,000 paid by respondent no. 1 to the seller and deposited in the bank could 
not also be evacuee property. Either the one or the other could be evacuee property, 
This sum must be held to be in trust for tho first respondent. [363 F] 
CIVIL APPELLATE JuRJSD1ar10N : Civil Appeal No. 170of1969. 
Appeal from the Judgment and Order dated .the 15~ April, 
196S of the Allahabad High Court (Lucknow Bench) in Special Appeal 
No. 258 of 1966. 
360 
SUPRBME COURT RBPOR'fS 
[1975] 2 s.c.R. 
G. L. Sanghi and S. P. Nayar, for the appellants. 
O. P. Lal, for respondent No. 1. 
The Judgment of the Court was delivered by 
ALA01Rl$WAM1, J.-Mrs. Zohra Naqvi, the wife of a Police 
official of the then United Provinces (now Uttar Pradesh) was in 
Teheran in the year 1947 alongwith her husband. She purchased 
a property from the Improvement Trust, Lucknow for a sum of 
Rs. 6,400/·. It appears that Mrs. Naqvi did not come to India at all till 
1962 when she sold this property to the sons of respondent No. 1 
and one Mrs. Jain. On 24-6-1949 the United Provinces Adm.inis· 
tration of Evacuee Property Ordinance, 1949 came into force. 
This would be a proper stage at which the relevant provisions 
of the Ordinance should bo 11oticed. Under that Ordinance "eva1cuee 
property" means any property 

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