LexBHANWAR LAL AND ANR. versus REGIONAL SETTLEMENT COMMISSIONER, JAIPUR, CUM-CUSTODIAN OF EVACUEE PROPERTY & OTHERS
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'l • • • .v A B c D E F 163 BHANWAR LAL AND ANR. v. REGIONAL SETTLEMENT COMMISSIONER, JAIPUR, CUM-CUSTODIAN OF EVACCEE PROPERTY & OTHERS May 6, 1965 [K. SUBBA RAO, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.J Admini,tmtion of Evacuee Property Act, 1950 (31 of 1950)-Notice under s. 7(1) to deceased Mortgagees-Whether sufficient-No Separa"' tion proceedings-Rigfrts of Custodian. The names of the predecessors of the appellants were recorded as mortgagees in the villages records in respect of a property, owned by persons who later migrated to Pakistan. The Custodian of Evacuee Pro- perty issued a notice under s. 7 ( 1) of the Administration of Evacuee Property Act, 1950 to these persons and the predecessors of the appel~ !ants stating that the prcdcc~ssors of the appellants \\:ere in illegal posses- sion of the property and to shO\V cause why the property should not be declared as evacuee property. The notice was affixed at a conspicuous place in the village. It could not be served on the predecessors of the appellants who had died long before the issue of the no1ice. Since no objections were filed, the Custodian declared the property as evacuee pro- perty. No action was also taken to separate the intere"St of the evacuees from those of the mortgagees under the Evacuee Interest (Separation) Act. The appellants filed a \\.Tit petition in the High Court for quash- ing the latter order declaring the property as evaeuee property and to restrain the respondent to interfere \vith their possession. The High Court dismissed the petition holding that issue of the notice to the pre- decessors of the appellant. \Vas sutlic'.cnt compliance under s. 7 ( 1 ) of the Act. In appeal to this Court. HELD : The Custodian can fonn his opinion about any property having become evacuee property on the basis of information available to him, and issue notice to persons intere::;ted -also on the basis of such in- formation. He is not expected to hold a genetal inquiry of the persons interested in the alleged 0vacuce property. He had complied with the requirements of s. 7(1) of the Act to give notice to the predecessors of the appellants who resided at some other place and about whom he could have no knowledge whether they were alive or not. The notice was, however, ineffective and not good as the pr·~deccssors of the appellants had died long befor·o. [165 D-H] Abdul Hakim Khan v. The R<!gional Settlernent Conunissioner, G [1962] l S.C.R. 531, followed . H The impugned order did not affect the rights of ihe appellants, if any as mortgagees. The non-issue of the notice to the appellants therefore was of no consequence as the order subsequently passed without the issue of the notice to them did not affect their interest. By virtue of the latter c>rder, the rights of the evacuees in the property suit vested in the Custo- dian and those right; consisted of the rights of equity of redemption. This mean9 that the Custodian held the property subject to the mortgagee rights, if any. Of the appellants. rt66 A-B, E-F] So long as p'roper action under the Evacuee Jntere..;;t (Separation) Act was not taken to separate the interest of the evacuees and the appellants 164 SUPREME COURT REPORTS (1960; I 3.C.R. who claimed to Pe t'.H: m·';!3;1.g~e~. 1hc eu~todi;ln could not take any A action against the appellants ~r their tenants v.·ho \\'ere said to be in poss~ion of th.: property in ~Ht. [167 1\-BJ CIVIL APPELLATE JURISnJCTJON: Civil Appeal No. 244 of 1965. Appeal by '.;pccial lcav~ from the judgment and order dated April 7, 1964 of the Rajasthan High Court in D.B. Writ Petition No. 192 of l 960. B. R. L. Iyengar, S. K. Mehta and K. l.. Mellfa, for the appel- lants. B D.R. Prem and B. R. G. K. A char, for respondent No. 1. c The Judgment of the Court was delivered by Raghubar IJ.i)ul, J, Ibrahim and Khurshed, brother.;, sons of Paneh Ali, Isak and Ba~gu, sons of Jawaye, owned Khasra No. 26, measuring 20 bighas, at village Alipore, Tehsil Hanumangarh. They migrated to Pakistan. The Assistant Custodian of Evacuee Property, Hanumangarb, issued notice under s. 7 ( 1) of the Admi- nistration of Evacuee Property Act, 1950 (Act XXXI of 1950) hereinafter called the Act, to these persons and also to Hazari, son of Chuni and Magha, son of Kana, stating therein that Ibrahim and others had gone to Pakistan and that Hazari ar.d Magha were in illegal possession of th
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