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Case Number

E.F.A 175-D/62

Attorney(S)

For the petitioner:— Mr. Roshan Lal, Advocate.
For the respondent:— B. Shiv Charan Singh, Advocate.

Judges

I. D. Dua

Acts

Sec. 17 of the Administration of Evacuee Property Act, 1950 read with S. 151 of the Civil Procedure Code.
Administration of Evacuee Property Amendment Act of 1966 whereby Sub Sec. 2(a)
provisions of S. 17 of the Administration of Evacuee Property Act 31 of 1950.
sec. 17 of the Administration of Evacuee Property Act, 1950.
article of the 1908 Limitation Act would be Article 181
provisions of rule 96 of order 21 Civil Procedure Code
Article 181 of the Limitation Act of 1908.
Section 8 of the said Evacuee Act of 1950
Rule 96 of Order 21 Civil Procedure Code.
Article 181 of the Limitation Act 1908.
S. 17 of the Evacuee Act of 1950
S. 50 of the Evacuee Act of 1950

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Smart Summary

Judgment Summary — S.N. Andley, J.

Factual and Procedural Background

The property under dispute was mortgaged by Mohd. Ismail (respondent No. 9). A mortgage decree in favour of the mortgagee led to a court auction, at which Kabool Singh (original appellant) and Raghunath Das (original respondent No. 2) were declared joint purchasers; the sale was confirmed by the Court on January 19, 1952. Raghunath Das subsequently transferred his purchaser's rights entirely to Kabool Singh.

Because the property was tenanted, Kabool Singh was given symbolic possession on February 28, 1952 under Rule 96 of Order 21 of the Civil Procedure Code. On February 2, 1956 Kabool Singh sued a tenant (Lekh Ram) for arrears of rent; the tenant objected that the property was evacuee property and the Custodian of Evacuee Property ought to be impleaded. The Custodian was impleaded and on July 20, 1956 asserted that the property had vested in him under the Administration of Evacuee Property Ordinance and that the sale was void by reason of Section 17 of the Administration of Evacuee Property Act, 1950. The Additional Judge, Small Cause Court rejected the Custodian's claim by order dated December 18, 1956.

The Custodian separately filed an application in the executing Court (Mr. P.R. Aggarwal, Sub-Judge, 1st Class, Delhi) on October 4, 1956 under Section 17 of the Administration of Evacuee Property Act, 1950 read with Section 151 CPC; that application was dismissed by the executing Court on August 14, 1957 as barred by res judicata (with reference to the Additional Judge's order of December 18, 1956).

The Custodian filed revisions against both orders in the Punjab High Court (Circuit Bench) at Delhi. Both orders were set aside by R.P. Khosla, J. on January 27, 1961, and the matter was remanded for determination of three specific issues: (1) whether the Custodian's claim was in time; (2) whether the property vested in the Custodian on December 5, 1951 and remained vested; and (3) relief.

The issues were tried by Mr. M.L. Jain, Sub-Judge, who by order dated September 3, 1962 allowed the Custodian's October 4, 1956 application under Section 17 of the Evacuee Act, holding the sale void because the property had vested in the Custodian on December 5, 1951 and the application was not time-barred. Kabool Singh (now represented by his legal representative) appealed from that order. The present judgment resolves that appeal.

Legal Issues Presented

Whether the claim put in by the Custodian was in time (i.e., whether the Custodian's application under Section 17 of the Administration of Evacuee Property Act, 1950 was within the period of limitation).
Whether the property vested in the Custodian on December 5, 1951 (the date of the sale) and remained so vested.
What relief, if any, should follow from the answers to the above questions.

Arguments of the Parties

Appellant's Arguments (Kabool Singh)

Counsel Mr. Raushan Lal argued that the notification (dated December 14, 1949) purporting to vest the property in the Custodian was issued under Ordinance No. XII of 1949, which had been declared ultra vires by a Full Bench of the Punjab High Court in Durga Pershad v. Custodian of Evacuee Property (AIR 1960 Punjab 341); therefore, the appellant contended there had been no valid vesting in 1949.
With respect to limitation, the appellant contended that if vesting had occurred, the Custodian's possession was disturbed by the delivery of symbolic possession to the appellant on February 28, 1952; accordingly, the right to apply accrued on that date (i.e., limitation began to run from February 28, 1952).

Respondent's / Custodian's Arguments

Counsel for the Custodian contended that the sale was void by reason of Section 17 of the Evacuee Act and that the Custodian could disregard the sale until the Custodian became aware that another person was asserting a right prejudicial to the Custodian; such awareness, it was argued, arose only when the Custodian was served with notice on July 20, 1956—hence the right to apply accrued only from that date.
It was also contended that symbolic possession given under Rule 96, Order 21 CPC would amount to delivery of possession only where the tenants were of the judgment-debtor himself; in this case, the tenants were said to be tenants of the Custodian (not of the judgment-debtor), so the symbolic possession delivered to the auction purchaser could not be regarded as disturbing the Custodian's possession.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Durga Pershad v. Custodian of Evacuee Property (AIR 1960 Punjab 341)	Cited by appellant to show Ordinance No. XII of 1949 had been declared ultra vires.	The court noted the appellant's reliance on this decision but did not decide the validity issue because the later statutory amendment (S. 8(2-A)) rendered any defect immaterial for present purposes.
Azamunnissa & Others v. Deputy Custodian, Evacuee Properties (AIR 1961 S.C. 365)	Explains effect of S. 8(2-A): retrospective validation of vesting and validation of Custodian's orders despite any invalidity in original vesting.	The court relied on this Supreme Court exposition to hold that any defect in the original ordinance-based vesting was cured retrospectively by S. 8(2-A), making the vesting (and Custodian's orders) valid for present purposes.
Ramama v. Nalla Ranu (AIR 1956 S.C. 87)	Determined that Article 181 of the Limitation Act is the appropriate article for an application where no specific period is prescribed; the period is three years from when the right to apply accrues.	The court applied this authority to fix the relevant limitation period (Article 181) for the Custodian's Section 17 application.
Abda and another v. Yusaf Khan and others	Expressed the view that the object of the Evacuee Act is to preserve evacuee property and that vesting in the Custodian does not deprive an evacuee of the right to continue litigation.	Used to support the proposition that the Custodian's title is not independent and that the Custodian steps into the shoes of the evacuee for purposes such as limitation.
Mohd. Ali Hasan Khan and Others v. Bhargirathilal and Others (AIR 1964 Andhra Pradesh 126)	States that the Evacuee Act does not make the Government or Custodian the owner; vesting means the Custodian acts as statutory agent or manager of the evacuee's property.	Relied upon to determine the status of the Custodian (as agent/manager) and consequent application of limitation principles as if applied to the judgment-debtor/evacuee.
Adya Nath v. Krishna Pershad Singh and Another (AIR 1949 Privy Council 124)	Held that delivery of symbolic possession of property in occupation of a tenant of the judgment-debtor effectively terminates possession of both the judgment-debtor and the tenant.	The court cited this case to support the conclusion that symbolic possession can terminate possession and thus start the running of limitation for claims predicated on disturbance of possession.
Mst. Mewa and Another v. Amar Singh and Others (AIR 1959 Punjab 515)	Equates delivery of symbolic possession to delivery of actual physical possession for certain purposes.	Applied to reject the argument that symbolic possession given to the auction purchaser did not interfere with the Custodian's possession; the court treated symbolic possession as sufficient to begin the running of limitation.

Court's Reasoning and Analysis

The court's analysis proceeded in a sequence tied to the remanded issues:

Validity of vesting via the 1949 Ordinance: The appellant urged that the 1949 Ordinance (Ordinance No. XII of 1949) had been declared ultra vires (Durga Pershad). The court declined to decide the validity of that Ordinance because the Administration of Evacuee Property Amendment Act of 1966 (adding S. 8(2-A)) retrospectively validated vestings that had been made under the Ordinance; the Supreme Court's exposition in Azamunnissa established that S. 8(2-A) gives retrospective effect to cure defects in vesting and to validate Custodian orders. Consequently, even if the Ordinance-based vesting were flawed originally, S. 8(2-A) made the vesting retrospectively effective for present purposes.
Applicable limitation law: The court accepted (following Ramama v. Nalla Ranu) that Article 181 of the Limitation Act, 1908 governs the period for an application where no specific limitation is prescribed; Article 181 prescribes a three-year period running from "when the right to apply accrues."
When the right to apply accrued (i.e., commencement of limitation): The court examined competing contentions:
- The appellant argued that symbolic possession delivered to the auction-purchaser on February 28, 1952 disturbed the Custodian's possession and therefore the Custodian's right to apply accrued on that date.
- The Custodian argued that because the sale was void under Section 17, he could disregard it until made aware of a claim prejudicial to him (awareness asserted to arise on July 20, 1956), and that symbolic possession did not disturb the Custodian because the tenants were Custodian's tenants not the judgment-debtor's tenants.
The court rejected the Custodian's contentions on these points for multiple reasons stated in the opinion:
- The court characterized the Custodian not as a stranger but as a statutory agent/manager who steps into the shoes of the evacuee; precedents (Abda; Mohd. Ali Hasan Khan) supported that vesting does not create an independent proprietary title that would alter application of limitation.
- Section 50 (requiring notice to the Custodian when a civil court proceeds on questions relating to evacuee property) does not arrest the running of time under the Limitation Act if time has already begun to run; lack of notice or ignorance of proceedings does not delay commencement of limitation where the right to apply has accrued.
- Authoritative decisions (Adya Nath; Mst. Mewa) treat delivery of symbolic possession as effectively terminating the possession of both the judgment-debtor and his tenant; the court applied that principle to conclude that symbolic possession given on February 28, 1952 did disturb possession for limitation purposes.
On this basis the court concluded that the right to apply accrued to the judgment-debtor and therefore to the Custodian on February 28, 1952 (the date of symbolic possession).
Application of limitation to the Custodian's filing: Because Article 181 prescribes a three-year period from the date when the right to apply accrues, and because the right accrued on February 28, 1952, the Custodian's application dated October 4, 1956 was held to have been filed beyond the three-year period and therefore time-barred.

Holding and Implications

Holding: The appeal is allowed. The court held that the Custodian's application dated October 4, 1956 under Section 17 of the Administration of Evacuee Property Act, 1950 was barred by limitation under Article 181 of the Limitation Act, 1908 because the right to apply accrued on February 28, 1952 when symbolic possession was delivered to the auction purchaser. The appeal was allowed with costs.

Implications:

The direct practical effect is that the Custodian's later application under Section 17 (filed on October 4, 1956) was held time-barred and the appellant's challenge to the District Court order succeeds; the appeal was allowed with costs in favour of the appellant.
The opinion rests on applying existing statutory provisions and precedents (as cited above) to the facts; the judgment resolves the remanded issues in favour of the appellant on limitation grounds. The opinion does not claim to establish a novel legal principle beyond the application of cited authorities and statutory interpretation to the facts of this case.

Short form outcome as recorded: "Appeal allowed." (A.N.K)

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Kabool Singh Petitioner v. Custodian Of Evacuee Property Etc.

S.N Andley, J.:— The property in question was mortgaged by Mohd. Ismail, respondent No. 9 and at the instance of the mortgagee, who had filed a suit and in whose favour a Mortgage Decree had been passed it was put to sale through the Court Auctioneer. In this sale, Kabool Singh (original appellant) and Raghunath Das (original respondent no. 2) were declared the joint purchasers and the sale in their favour was confirmed by an order of the Court dated January 19, 1952. It is not disputed that Raghunath Das (original respondent no. 2) transferred all his rights, title and interest as an auction purchaser in favour of Kabool Singh aforesaid.

Since the property was tenanted, mere symbolical possession was given to Kabool Singh on February 28, 1952 under Rule 96 of Order 21 Civil Procedure Code. After a few years of obtaining symbolical possession Kabool Singh on February 2, 1956 filed a suit which was dealt with by the Additional Judge, Small Cause Court, against Lekh Ram, one of the tenants in the said property for recovery of arrears of rent. Lekh Ram resisted the suit on the ground, inter alia, that the property was evacuee property and that the Custodian of Evacuee Property should be impleaded as a party defendant. Upon this objection, the Custodian was impleaded and on July 20, 1956, he raised an objection that in as much as the property had tested in him under the provisions of the Administration of Evacuee Property (Chief Commissioners Province) Ordinance XII of 1949, the sale thereof was void and ineffective by reason of the provisions of S. 17 of the Administration of Evacuee Property Act 31 of 1950. The claim of the Custodian was rejected by an Order of the Additional Judge, Small Cause Court on December 18, 1956.

In the meantime, the Custodian, filed an application in the Court of Mr. P.R Aggarwal, Sub-Judge, 1st Class Delhi which was the executing Court in so far as the aforesaid mortgage decree was concerned. This application was filed on October 4, 1956 under Sec. 17 of the Administration of Evacuee Property Act, 1950 read with S. 151 of the Civil Procedure Code. The executing Court dismissed this application by its order dated August 14, 1957 on the ground that it was barred by res judicata on account of the aforesaid order dated December 18, 1956 of the Additional Judge, Small Cause Court.

Against both the orders, namely the order dated December 18, 1956 of the Additional Judge, Small Cause Court and the order dated August 14, 1957 of Mr. P.R Aggarwal, Sub-Judge Ist Class, Delhi the Custodian filed revisions in the Punjab High Court (Circuit Bench) at Delhi. Both these orders were set aside in revision by R.P Khosla, J. by his order dated January 27, 1961. The learned Judge, however, remanded the case for determination of three issues which were framed by him and which are in the following terms :—

(1) Whether the claim put in by the Custodian was in time ?

(2) Whether the property vested in the Custodian on 5th December 1951 the date of the sale and remained so vested ?

(3) Relief.

The issues were tried by Mr. M.L Jain, Sub-Judge Ist Class, Delhi, who by his order dated September 3, 1962 allowed the application dated October 4, 1956 which had been filed by the Custodian under sec. 17 of the Administration of Evacuee Property Act, 1950. He held that inasmuch as the property had vested in the Custodian On the date of sale i.e December 5, 1951, the sale itself was void under S. 17 of the said Evacuee Act and that the said application was not barred by time. It is against this order that kabool Singh, who is now represented by his legal representative has filed the present appeal.

Mr. Raushan Lal, learned counsel for the appellant, has argued that the notification dated December 14, 1949 whereby the property is alleged to have vested in the Custodian had been issued in exercise of powers conferred by the said Ordinance No. XII of 1949 and this Ordinance had been declared ultra vires by a full Bench of the Punjab High Court in the decision which is reported in AIR 1960 Punjab 341 in re. Durga Pershad v. Custodian of Evacuee Property (1). He therefore, contends that there was no vesting of the property in the Custodian as claimed by him. It is not necessary to go into the validity of this argument for the simple reason that the defect, if any, in said Ordinance No. XII of 1949 was cured by the Administration of Evacuee Property Amendment Act of 1966 whereby Sub Sec. 2(a) had been added to Section 8 of the said Evacuee Act of 1950 and with regard to this amendment Act, the Supreme Court in its decision reported in AIR 1961 S.C 365 in re : Azamunnissa & Others v. Deputy Custodian, Evacuee Properties (2) has said :

“The effect of S. 8(2-A) is that what purported to have vested under S. 8(2) of the Administration of Evacuee Property Ordinance XXVII of 1949 and which is to be deemed to be vested under S. 8 of the Act which repealed that Ordinance, not withstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) What purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under S. 8(2) of the Ordinance XXVII of 1949 or S. 8(2) of the Act which repealed the Ordinance; (3) makes the decree and judgments to the contrary of any Court inregard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; (5) validates all orders passed by the Custodian in regard to the property.” Therefore even if Mr. Raushan Lal is right that there had not been any vesting of the property in 1949 when the aforesaid notification was issued, it will not help him because by reason of S. 8(2-A) vesting was made retrospective.

The next question that has to be determined is whether the application dated October 4, 1956 filed by the Custodian under S. 17 of the Evacuee Act of 1950 was within time. In view of the decision of the Supreme Court reported in A.I.R 1956 SC 87 in re : Ramama v. Nalla Ranu(3), it is not disputed that the appropriate article of the 1908 Limitation Act would be Article 181 and no other. This Article prescribes the period of limitation for an application for which no period of limitation has been prescribed. The period prescribed is three years and the time from which the periods begins to run is “When the right to apply accrues.”

The contention on behalf of the appellant is that assuming that the property vested in the Custodian, his possession was disturbed by the delivery of symbolical possession to the appellant on February 28, 1952 and, therefore, the right to apply accrued on this date. On the other hand, Bawa Shiv Charan Singh, learned counsel for the Custodian contends that the sale being void by reason of S. 17 of the Evacuee Act of 1950, it was open to the Custodian not to take any notice of it and that he could take notice of it only when he was made aware that somebody else was claiming a right in the property to his prejudice. According to the argument, such awareness came to the Custodian only on July 20, 1956 when he was served with the notice by the Additional Judge, Small Cause Court, and, therefore, the right to apply accrued only on this date.

The status of the Custodian is not the status of a stranger or an entirely different person qua the Evacuee. It is no doubt true that he has been given certain rights and even powers by the Evacuee Act, which were not possessed by the Evacuee. Nevertheless, the fact that he is a Custodian of the property of the evacuee in the capacity of a representative or manager. It is difficult, for me to accept the argument that the possession of the evacuee property by the Custodian or its vesting in him creates some sort of independent statutory title in him with reference to that property. A division Bench of the Punjab High Court has expressed the view in the case Abda and another v. Yusaf Khan and others (4) that the object of the Evacuee Act is to preserve the property of an evacuee and that even though the property of the evacuee vests in the Custodian such vesting does not deprive an evacuee of his right to continue his case in a Court of law.

Similar observations have been made in the case reported in AIR 1964 Andhra Pradesh 126 in re: Mohd. Ali Hasan Khan and Others v. Bhargirathilal and Others (5) where it is stated that it is not the object of the Administration of Evacuee Property Act to make the Government or the Custodian of Evacuee Property the owner of the property declared as evacuee property. Notwithstanding such a declaration the property shall continue to be the property of the evacuee and the vesting thereof in the Custodian would only mean that the Custodian is stepping into the shoes of the evacuee as a statutory agent or manager for continuing administration and management of the same.

The question of limitation, has therefore, to be looked at from the point of view that the Custodian is an agent or manager of the evacuee. Bawa Shiv Charan Singh has drawn my attention to S. 50 of the Evacuee Act of 1950 which provides that if in any suit, it appears to the Civil Court that a question relating to the property of an evacuee or an intending evacuee is involved, the Court shall not proceed to determine that question until notice has been given to the Custodian. It is contended that since no notice was given to the Custodian by the executing Court, the Custodian is not bound by the execution proceedings or by the sale of the property by Court auction and could not have been expected to have taken any steps until his possession was in fact disturbed It is further contended that delivery of symbolical possession to the auction purchaser would not be disturbance of the Custodian's possession. S. 50 certainly requires the Courts mentioned therein to give notice to the custodian. But that is only if it appears to such Courts that a question relating to the property of an evacuee or an intending evacuee is involved in the proceedings before that Court. This section cannot arrest the running of time under the Limitation Act if time has already begun to run.

The next contention on behalf of the respondent is that symbolical possession, which is delivered under the provisions of rule 96 of order 21 Civil Procedure Code may amount to delivery of possession where the tenants are of the judgment-debtor himself. In this case, it is contended that the tenants were not of the judgment-debtor but of the Custodian and therefore delivery of symbolical possession in this case could not be said to be interference with the possession of the custodian. It is difficult to accept this argument.

The Privy Council has observed in AIR 1949 Privy Council 124 in re: Adya Nath v. Krishna Pershad Singh and Another that delivery of symbolical possession of property found to be in occupation of a tenant of the Judgment-debtor effectively terminates the possession of both the judgment-debtor and the tenant. Similarly in AIR 1959 Punjab 515 in re: Mst Mewa and Another v. Amar Singh And others (7) delivery of symbolical possession has been given the same status as delivery of actual physical possession.

In view of the fact (1) that the title of the Custodian cannot be said to be independent of the title of the judgment-debtor and (2) that the Custodian merely steps into the shoes of the judgment-debtor, the law of limitation has to be applied to the Custodian as it would have been applied to the judgment-debtor himself. Lack of notice to or the the ignorance of the Custodian cannot be taken into consideration in determining the commencement of the running of the period under Article 181 of the Limitation Act 1908. The time from which the period begins to run is when the right to apply accrues and that right in my opinion definitely accrued to the judgment-debtor and, therefore to the Custodian on February 28, 1952 when symbolical possession was delivered to the Appellant.

Under the circumstances, I hold that the application dated October 4, 1956, filed by the Custodian under S. 17 of the Evacuee Act of 1950 was filed beyond the time prescribed by Article 181 of the Limitation Act of 1908. This appeal is, therefore, allowed with costs.

A.N.K Appeal allowed.

Kabool Singh Petitioner v. Custodian Of Evacuee Property Etc.

Judgment Summary — S.N. Andley, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Kabool Singh)

Respondent's / Custodian's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kabool Singh Petitioner v. Custodian Of Evacuee Property Etc.

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