BIBI NAZMA KHATOON Vs. R P SINHA

JUDGEMENT

(1.) In these two applications, which were heard together, a common question of law arises, namely, whether the Custodian, Mr. R. P. Singh, acted in excess of his jurisdiction in setting aside the order of his predecessor, Mr. S. N. Ray, dated 29-9-1950.

(2.) On 12-8-1949, the petitioners purchased a house, namely, holding No. 98, of Ward No. 3 of Gaya town, from Mt. Bibi Akbari Khatoon and her sister Mt. Asghari Khatoon. The Sale deed was executed on behalf of Bibi Asghari Khatoon by Maulivi Abdul Rashid, her father-in-law, who had a general power of attorney on her behalf. The power of attorney was executed by Bibi Asghari Khatoon on 7-7-1949. It is material to state that on 21-6-1949, the Bihar Administration of Evacuee Property Ordinance, 1949, came into force. Section 25 of the Ordinance imposed certain restrictions on the right of transfer of evacuee properties made on behalf of evacuees after 31-3-1947, and Section 26 of the Ordinance granted power to the Provincial Government to prohibit transfer of immovable properties or any part thereof in certain specified areas. On 24-8-1949, a notification was published by the Provincial Government, under Section 26 of the Ordinance, prohibiting transfer of any immovable property belonging to a Muslim and situated in the province but not in the rural areas of Chota Nagpur for a period of three months except with the previous approval in writing of the Collector of the district in which the property or the greater part thereof was situated. On 21-9-1949, the petitioners applied, under Section 25 of the Ordinance, to the Custodian for confirmation of the sale of the house so far as the share of Bibi Asghari Khatoon was concerned. The application was rejected by the Deputy Custodian, Mr. Aikat, who was under the wrong impression that the application was for permission to sell the interest of Bibi Asghari Khatoon. On 29-9-1949, Mt. Bibi Asghari Khatoon was declared to be an evacuee. A fresh application was made on 7-10-1949, by the petitioners for confirmation of the sale. Mr. S. P. Singh who was the Deputy Custodian at the time refused confirmation of the sale on the ground that the sale deed was executed after Bibi Asghari Khatoon had gone over to Pakistan. Mr. S. P. Singh also considered that, the earlier petition having been rejected by the Deputy Custodian, a second petition was not maintainable on the same point. An appeal was taken on behalf of the petitioners to the Custodian who by his order dated 29-9-1950, set aside the order of Mr. S. P. Singh and confirmed the sale so far as the eight annas share of Bibi Asghari Khatoon was concerned. In course of his order, the Custodian, Mr. S. N. Ray, stated:

(3.) On 10-12-1952, after lapse of. more than two years, Mr. R. P. Singh, who had become Custodian, ssued a, notice to one of the petitioners to show cause why the order of his predecessor, Mr. S. N. Ray, should not be reviewed, and the order of confirmation of the sale should not be set aside. It is important to state that no notice was given to the petitioner Bibi Nazma Khatoon. The other petitioner appeared before the Custodian on 18-12-1952, and, after hearing his lawyer, Mr. R. P. Singh set aside the order of his predecessor on the ground that the transaction of sale was 'mala fide'.