EBRAHIM ABOOBAKER AND ANOTHER versus TEK CHAND DOLWANI

Citation: [1953] 1 S.C.R. 691 · Decided: 10-04-1953 · Supreme Court of India · Bench: M. PATANJALI SASTRI · Disposal: Appeal(s) allowed

Judgment (excerpt)

s.c.B. 
SUPREME COURT REPORTS 
691 
EBRAHIM ABOOBAKER AND ANOTHE"U 
v. 
TEK CHAND DOL WANI. 
EBRAHIM ABOOJ3AKER AND ANOTHER 
v. 
CUSTODIAN-GENERAL OF EVACUEE 
PROPERTY. 
EBRAHIM ABOOBAKER AND ANOTHER 
v. 
U. M. MIRCHANDANI. 
[PATAN.JALI 8ASTRI C.J., MUKHERJEA, DAS, GHULAM 
HABAN and BHAGWATI JJ.] 
Admi?bistration of Evacuee Property Act (XXXI of 1950), 
ss. 2(d) and(/), 7-Proceedings fo1· declaring a person an evacuee 
and his properties evacuee properties -Death of person pending pro. 
ceedings-Abatement of proceedings-Continuation of proceedings 
against wccessors~ Legality. 
Where a Mohammedan against whom proceedings are com-
menced under the Administration of Evacuee Property Act, 1950, 
for declaring him an evacuee and his properties evacuee properties 
dies during the pendency of the proceedings he cannot be declared 
an evacuee after his death, and his properties which on bis death 
vest in bis heirs under the Mohammedan law cannot be declared 
evacuee properties. 
CIYJL APPELLATE JL1nrsDICTION: 
Civil Appeal 
No. fi5 of 1953. 
Appeal by special leave granted by the Supreme 
Court on 13th March, 1953, from the Judgment and 
Order dated the 30th July, 1951, of the Custodian 
General of Eyacuee Property in No. 31-A/Judi./50. 
Petition No. 247 of 195Q, a petition under Article 
32 of the Constitution for enforcement of funda-
mental rights, and Petition for Special Leave to 
Appeal No. 106 of 1952 were also heard ll;long with 
Civil Appeal No. 65 of !9(j;j, · 
1963 
April 10. 
1958 
Ebrahim 
Aboobake1· 
and Another 
v. 
Tek Chand 
Dolwani. 
Ghulam 
Ha!an J. 
692 
SUPREME COUR'r REPORTS 
[1953] 
K. T. Desai for,the appellants and petitioners. 
0. K. Daphtary, Solicitor-General for India (PMus 
A. Mehta with him) for the respondent in Petition 
No, 247, 
. 
1953, 
April 10, 
The Judgment of the Court was 
delivered by 
GHULAM HASAN J,-ln order to understand and 
appreciate the point arising for consideration in this 
case, it will be necessary to set out a few preliminary 
facts:--
One Aboobaker Abdul Rehman, a resident of Bom-
bay, received on December 16, 1949, from the Addi-
tional Custodian, Bombay, a notice under section 7 of 
Ordinance No, XXVII of 1949 calling npon him to 
show canse why his interest in certain specific pro-
perty shonld not be declared to be evacuee property. 
A further notice issned 0'1January11, 1950, required 
him to show cause why he should not be declared an 
evacuee and all his properties declared to be evacuee 
properties, 
On February 8, 1950, foe Additional 
Custodian decided that Aboobaker was not an evasuee, 
but at the same time issued a fresh notice to him 
under section 19, requiring him to show cause why he 
should not be declared an "intending evacuee" and 
on the following day, February 9, he declared Aboo-
baker as an "intending evacuee" upon the same evid-
ence. 
Aboobaker does '10t appear to have contested 
this order, but one Tek Chand Dolwani, first infor-
mant, carried the matter in appeal to the Custodian 
General, praying that Aboobaker be declared an 
evacuee and that the Imperial Cinema, one of his 
properties, be allotted to him, 
The Ordinanc~ expired on October 18, 1949, and 
was replaced by Act XXXI of 1950 (The Administra-
tion of Evacuee Property Act) which came into 
operation on April 17, 1950, It is not denied that 
although the Ordinance was repealed by section 58, 
the proceedings taken in the exercise of any powers 
conferred by the Ordinance shall be deemed to have 
S.O.R. 
SUPREME COURT REPORTS 
693 
been taken in the exercise of the powers conferred by 
the Act as if the Act were in force on the day the 
proceedings were taken. 
The appeal was heard ou May 13, 1950, when the 
preliminary objections iu regard to the maintainabi-
lity of the appeal were argued and the appeal was 
adjourned to May 15 for orders. 
Ou May 14, Aboo-
baker died leaving him surviving three sons and a 
daughter as his heirs under the Mohammedan law, 
tbe sons taking 2/7th share each and the daughter 
I/7th. 
On May 15, the Custodian General pronoun-
ced the order which was, however, dated May 13. 
By 
this order he dismissed the preliminary objections and 
directed that further enquiries should be made and 
that Aboobaker be examined further on August 19, 
1950. The hearing of the appeal was adjourned from 
time to time and was fixed for final disposal on March 
7, 1951. Notice of this hearing was issued to Ebrahim 
Aboobaker (son) and Hawabai Aboobaker (daughter) 
who owne

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