LexVAMAN PRABHU MAHAMBRE versus MARIA ALCINA DE MENEZES E GONSALVES AND ORS.
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A B V AMAN PRABHU MAHAMBRE v. MARIA ALCINA DE MENEZES E GONSALVES AND ORS. OCTOBER 18, 1994 [K. RAMASWAMY AND S.C. SEN, JJ.] Evacuee property : Goa, Daman, Diu Administration of Evacuee Property Act, 1964: C Sections 2(c), 8(2)(i), 16 and 37-Property mortgaged and mortgagor leaving the cowttry-Declared evacuee property-Legal Representatives filing suit for recovery of debt-Civil Cowt decreeing the suit~onfinned in ap- peal-Held mortgagees entitled to proceed against the property for recovery of debt due and the decree valid. D The husband of the first respondent hypothecated his house with a plot of land in favour of C and his wife in the year 1954. He then migrated to Portugal. His property was declared to be evacuee property under the Goa, Daman & Diu Administration of Evacuee Property Act, 1964. The said property was put to sale at a public auction and the appellant E purchased it. Respondents, legal representative of the mortgagee, tiled a suit for recovery of debt from the evacuee with a charge on the hypotheca. The trial Court decreed the suit and on appeal the Judicial Commissioner confirmed the same. In appeal to this Court, appellant contended that by conjoint F operation of Sections 8(2) (8) and 37 of the Act, the Civil Court had been divested of the jurisdiction to grant the decree, and that the mortgagees could have proceeded against the custodian of the evacuee property. G Dismissing the appeal, this Court HELD : 1. Section 16 of the Goa, Daman & Diu Administration of Evacuee Property Act, 1964 gives only over-riding effect over any other law so long as as the evacuee property remains so vested in the Custodian of the evacuee property and no court or any other proceedings in any manner shall and whatsoever either in execution of any decree or order of any court H or authority, and sny attachment or injunction or order not be effective so 472 V.P. MAHAMBRE v. MARIA ALCINA DE MENEZES E GONSALVES 473 long as the property remains vested in the Custodian. [475-A-B] Raja Bhanupratap Singh v.Assistant Custodian Evacuee Property, U.P., [1966] 1 SCR 304 at 308A, relied on. A 2. No doubt the mortgagees have a right to lay claim before the custodian of the evacuee property by proviso to s.8(2) (i). But that would B be so long as the property remained vested in the Custodian and was under his possession and its administration. In the instant case, the property has already been sold to the appellant and he was given possession of the property on October 14, 1969, the date on which the property stood registered. Thereby, the Custodian has been divested of the administration C of evacuee property by conferment of title on the appellant through the sale conducted by him. [475-G-H] 3. Under s.56 of the Transfer of Property Act, the mortgage debt is . charge on the property and, therefore, the charge remains subsisting on the property so long as it has not been duly discharged. Admittedly, the D suit is within limitation and, therefore, the mortgagees-resJiondents are entitled to proceed against the property for the recovery of the debt due. [ 475-H, 476-A] CIVIL 'APPELLATE JURISDICfiON : Civil Appeal No. 2666 of 1977. From the Judgment and Order dated 27.7.76 of the Judicial Commissioner's Court of Goa in F.C.A. No. 13 of 1972. ' Dhruv Mehta, S.K. Mehta, Aman Vachher and K.R. Nagaraja for the E Appellant. F V.J. Francis, A. Subramanian and Ms. Subhashini (NP) for the Respondents. The following Order of the Court was delivered : The appeal by special leave arises from the judgment of the Judicial Commissioner, Goa, Daman & Diu in First Civil Appeal No. 13 of 1972 dated July 27, 1976. The facts are as under : G _ Shri Timteo Gonsalves, the husband of the fust respondent, was the owner of the property. He, on October 23, 1954, hypothecated his house H · 474 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R. A with a plot of land situated in Ribander in Goa in favour of Fernando D. , Aiala e Costa and his wife Maria Ema for a sum of Rs. 12,500. He migrated B to Portugal. As a consequence his property was declared to be the evacuee property on December 22, 1966 under the Goa, Daman & Diu Administra- tion of Evacuee Property Act 1964. Act No. 6/64 (for short the 'Act'), which came into force w.e.f. December 24, 1964. The property was put to sale at a public auction and the appellant had purchased it on February 27, 1968 and a sale certificate was gi
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