Wanchoo, J. - (1.) This is an appeal by special leave against the order of the Deputy Custodian General, and the question involved is whether the appellant is liable to pay Rs. 85,000/- to the Custodian. The matter has a long history behind it which it is necessary to set out in order to understand the point now in dispute in the present appeal. The money in question was deposited with the appellant by his sister as far back as January 1946. The total amount deposited was Rs. 90,000/-, but the appellant's sister took back Rs. 5,000/- with the result that the balance of Rs. 85,000/- remained deposited with the appellant. The appellant's sister thereafter migrated to Pakistan sometimes between June to August 1949. Sometime later, the Assistant Custodian Veraval called upon the appellant to pay this sum lying in deposit under S. 48 of the Administration of Evacuee Property Act. No. XXXI of 1950, (hereinafter referred to as the Act). The appellant contested the matter on the ground that the money had been given to him as a loan and its recovery was barred in January 1949 long before his sister had migrated to Pakistan, and therefore the amount could not be recovered from him. The Assistant Custodian however directed the recovery of the amount as arrears of land revenue under S. 48 of the Act, as it then stood. The matter was taken in appeal before the Custodian Saurashtra, but the appeal failed. The appellant then went in revision to the Custodian General, and the revision also failed. Then followed a writ petition by the appellant before the Saurashtra High Court in 1955. The writ petition was dismissed by a learned Single Judge; but on Letters Patent Appeal the appellant succeeded, the High Court holding that the amount was not recoverable under S. 48 of the Act as it stood at the relevant time. This decision was given on December 9, 1957. In the meantime, S. 48 had been amended on October 22, 1956 and we shall refer to this amendment in due course.
(2.) After the appellant had succeeded in the High Court, another notice of demand was served on him by the Assistant Custodian on January 22, 1958, and after hearing the objections of the appellant, the Assistant Custodian again directed the amount to be recovered. The appellant then took the matter in appeal to the Custodian General. The Custodian General allowed the appeal in August 1958 and remanded the proceedings for further enquiry as directed by him. The Custodian General then held that S. 48 as amended applied to the fresh proceedings which began on the notice issued by the Assistant Custodian in January 1958. He further held that the amount was recoverable under the amended S. 48 provided it was due to the evacuee on the date the property of evacuee vested in the Custodian. He was therefore of opinion that it would have to be determined when the sister of the appellant migrated and whether the amount was due to her on the date of her migration and had not become barred by the law of limitation on that date. He was further of opinion that the question whether the transaction amounted to a loan or a deposit had to be determined as there were different periods of limitation for these two types of transactions. He therefore remanded the matter for disposal after finding the facts in accordance with the directions given by him. After the remand further evidence was taken and it was held that the amount in question was payable by the appellant as it was a deposit and was still recoverable when the property vested in the Custodian. Thereupon the appellant again went in appeal to the custodian General and that appeal was dismissed on February 6, 1961. Then the appellant applied to this court for special leave which was granted; and that is how the matter has come up before us.
(3.) Two questions have been urged before us on behalf of the appellant. The first is whether the amended S. 48 can be applied to the present case. The second is whether the claim of the Custodian is barred even on the basis of the transaction between the appellant and his sister being a deposit and not a loan.;