(1.)RANI Manraj Koer obtained money decrees in the two suits Nos. 9 of 1932 and 42 of 1932 filed by her in the Court of the Subordinate Judge, Lucknow, against Nawab Mohammad Ali Khan Qazilbash Zamindar, Aliabad Estate, in Uttar Pradesh. From time to time execution applications were filed by the decree holder against the Zamindar, but nothing was recovered. RANI Manraj Koer died on 1/10/1941 and the appellant was brought on the record as her heir and legal representative. Nawab Mohammad Ali Khan Qazilbash also died and five persons amongst whom was one Nawab Ali Raza Khan were impleaded as legal representatives in the execution proceedings.
(2.)IN January 1950 Nawab Ali Raza Khan (Talukdar of Aliabad Estate) who was substantially the only judgment debtor from whose estate the amounts due were liable to be recovered, migrated to Pakistan and he was declared an evacuee under the provisions of the Administration of Evacuee Property Ordinance 27 of 1949-which was later replaced by the Administration of Evacuee Property Act 31 of 1950. The Custodian of Evacuee Property took possession of the estate of the evacuee and applied to the Civil Judge, Lucknow, for removal of attachment levied on the estate by the Civil Judge, Bahraich, in execution of the decrees at the instance of the appellant. The Civil Judge, Lucknow, by order, dated 22/07/1950 directed that the "transfer certificates" issued in the two decrees be recalled and the papers be consigned to the record. Against the order passed by the Civil Judge, Lucknow, appeals were preferred by the appellant to the High Court at Allahabad. By order, dated 22/02/1960 the High Court held that after the Custodian entered upon the management of the properties of the evacuee by virtue of S. 17 of the Administration of Evacuee Property Act, so long as the property remained vested in the Custodian under the provisions of that Act it was not liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or other authority.
On 27/09/1960 the appellant applied to the Custodian for an order under S. 10 (2) (n) of the Administration of Evacuee Property Act, 1950, directing that his claim for Rs. 1,27,638-2-0 under the two decrees in suits Nos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to the estate of Nawab Ali Raza Khan. The Assistant Custodian General, Evacuee Property, U. P., Lucknow, exercising the powers of the Custodian rejected the application holding that he had no power to grant relief to the appellant of the nature claimed. In exercise of his revisional jurisdiction, the Custodian General Evacuee Property, New Delhi, confirmed the order, and the appellant has, with special leave, appealed against the order.
(3.)THE question which falls to be determined in this appeal is, whether the Custodian is entitled to entertain the claim of the holder of a money decree against the evacuee for satisfaction of his dues out of the assets vested in the Custodian by S. 7 of the Administration of Evacuee Property Act. THE Custodian held that he had no such power, and the Custodian General agreed with him. S. 10 of the Act deals with the powers and duties of the Custodian generally. By sub-s. (1) it is provided:
"Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto".
Sub-section (2) provides:
"Without prejudice to the generality of the provisions contained in sub-s. (1), the Custodian may for any of the purposes aforesaid,-
(n) pay to the evacuee, or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto, any sums of money out of the funds in his possession."
By sub-s. (2) of S. 10 specific powers and duties of the Custodian are set out. It illustrates the general powers and duties under sub-s. (1). THE argument that the expression "any other person" in Cl. (n) must be construed ejusdem generis with "evacuee" or "any member of his family" has, in our judgment, no force. THE rule of interpretation ejusdem generis applies where a general word follows particular and specific words of the same nature as itself: it has no application where there is no genus or category indicated by the Legislature. THE clause is intended to confer upon the Custodian power coupled with a duty to pay to the evacuee or to any member of his family or to any other person who in the opinion of the Custodian is entitled to any sum of money out of the estate of the evacuee. THE powers of the Custodian and the duties are undoubtedly to be exercised under sub-section (2) for the purposes mentioned in sub-section (1) i.e. for securing, administrating, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him. To ascertain the limits upon and extent of those purposes, the position of the Custodian qua the estate of the evacuee vested in him must first be determined. S. 7(1) authorises the Custodian to declare after enquiry any property as evacuee property within the meaning of the Act, and the property so declared is deemed to vest in the Custodian from the date specified in S. 8. But the vesting of the property in the Custodian is for the purposes of the Act, i.e. for administration and management. By the vesting for purposes of the Act the Custodian does not become the owner of the property: he holds it for the evacuee and is bound to administer it in the manner provided by the Act. THE appropriation of the property must depend upon statutory provisions enacted by the Parliament. By S. 17 (1) of the Act as amended by Act 22 of 1951 with retrospective operation it was provided that:
"Save as otherwise provided in this Act no evacuee property which has vested or is deemed to have vested in the Custodian under the provisions of this Act shall, so long as it remains so vested, be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or other authority, and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencement of the Administration of Evacuee Property (Amendment) Act, 1951, shall cease to have effect on such commencement and shall be deemed to be void."
THE second part of the sub-section deals with avoidance of attachment, or injunction or order for the appointment of a receiver in respect of any evacuee property subsisting on the date of the commencement of the Act of 1951, and the first part interdicts recourse to the evacuee property so long as it remains vested in the custodian, by process of any Court or authority for obtaining satisfaction of any claim against the property. It is clear from the language of the section that whether the claim be against the evacuee or it is against the Custodian arising out of any acts of administration done by him, the evacuee property cannot be attached in execution of any decree or order of any Court or other authority. THE Legislature has thereby completely excluded the jurisdiction of Courts and authorities to execute decrees or orders passed against the Custodian or the evacuee to proceed against the property vested in the Custodian. THE intention clearly is that the administration shall continue for the purposes of the Act without any interference by the process in execution of the decrees or orders of Courts or other authorities. But it does not appear to be the intention of the Legislature that the Custodian should be entitled to collect the property of the evacuee and not be under an obligation to satisfy his debts and obligations. THE argument of counsel for the Custodian that the Custodian is merely to manage the property and is not invested with power to pay the debts due by the evacuee or to discharge liabilities of the evacuee is not borne out by the terms and the scheme of S. 10. THE powers conferred and the duties imposed by S. 10 (1) are for the purposes of securing, administering, preserving and managing the evacuee property, and there is no reason to attribute to the Legislature an attempt at tautology by assuming that "administering" is used in the same sense as the expression "managing". Again sub-s. (2) makes it abundantly clear that the powers conferred and the duties imposed are not merely incidental to management as a statutory agent of the evacuee. For instance, upon the Custodian is conferred the power to carry on the business of the evacuee with all the discretion which the carrying on of the business of the evacuee may necessitate: he is entitled to complete buildings which are required to be completed, to keep evacuee property in good repair, and to take action as may be necessary for the recovery of any debt due to the evacuee: see Cls. (d), (e) and (I) of sub-s. (2) of S. 10. Power is also conferred upon the Custodian by Cl. (j) to institute, defend or continue any legal proceedings in any civil or revenue Court on behalf of the evacuee: he is given the power to refer disputes between the evacuee and any other person to arbitration or to compromise any claims, debts or liabilities on behalf of the evacuee. Clause (j) implies the power and its concomitant duty to satisfy the claim which may be determined in any legal proceeding instituted, defended or continued in any civil or revenue Court, or awarded against the evacuee, or admitted or undertaken by virtue of the compromise. THE argument of the Custodian, if accepted, would lead to the somewhat startling result that a decree or an award made in favour of the evacuee in a proceeding commenced or continued by or against the Custodian may be enforced by the Custodian, but the property of the evacuee remains free from all claims, obligations and liabilities of the evacuee, even if decreed by a competent Court or undertaken and accepted by him. THEre is nothing in the statute which compels us to lend countenance to this inequity. THE words used in Cl. (n) empowering the Custodian to pay to "any other person" any sums of money out of the funds in his possession are not restricted to persons who are members of the family of the evacuee; they include other persons as well who are entitled to receive money from the evacuee.