Satish Chandra, J. - (1.) One Mohd. Hanif Gul Khan applied under the U. P. Encumbered Estates Act for the liquidation of his debts. The Special Judge passed a decree on the basis of a mortgage and ultimately made an award which was in due course transmitted to the Collector for liquidation. In 1947 the sons and daughters of Mohd Hanif Gul Khan migrated to Pakistan. In 1949 Mohd. Hanif Gul Khan died. His heirs were substituted in the liquidation proceedings. After the order of stay of liquidation proceedings had been lifted, the proceedings commenced in 1954. At that stage the Custodian, Evacuee Property applied for the stay of proceedings on the plea that the property inherited by the sons of the original debtor was evacuee property and he was entitled to administer it and to liquidate the debts of the evacuees. This claim was at first accepted by the Sub-Divisional Officer but on appeal his order was reversed and the order of the Commissioner was maintained by the Board of Revenue. Aggrieved, the Assistant Custodian filed a writ petition: A learned single Judge in a very well-reasoned judgment repelled the various submission advanced in support of the writ petition and dismissed it. Hence the present appeal.
(2.) Relying on the provisions of the Administration of Evacuee Property Act the learned counsel for the appellant argued that the Assistant Custodian was in law entitled to administer and manage the properties of the evacuee and to liquidate his debts. Since the provisions of the Evacuee Property Act override all other law, the proceedings under the Encumbered Estates Act could not validly continue. Reliance was placed upon Bhanu Pratap v. Assistant Custodian, A.I.R. 1966 S. C. 245 . In that case it was held that the Custodian can 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. Section 17(1) does not preclude the Custodian from satisfying the debts and obligations of the evacuees. In our opinion, this case is inapplicable. In the present case the sons and daughter of the original debtor had become evacuees. They were not the debtors. They were not persons liable to pay any one anything. When the original debtor died, they inherited his estate subject to various liabilities. Section 50 of the U.P. Encumbered Estates Act provides:- "If a landlord with regard to whom a notice has been published under Section dies before a declaration has been made in respect of him under Section 44- (a) the proceedings under this Act shall be continued as nearly as may be possible in all respects as if the landlord were still living; and (b) any person succeeding to the whole or any portion of the landlord's property shall become subject in respect of that property to the disabilities imposed by sub-sec (2) of Section 7 and shall continue so subject until a declaration has been made in respect of him under Section 44." On the death of the original debtor his sons and daughters became liable to the original liabilities imposed by Section 7(2) and notwithstanding their having become evacuees, the proceedings were liable to continue as if the landlord were still living. This statutory provision prevents abatement of the proceedings by death of the debtor. The personal heirs and legal representatives of the original debtor are brought in for the purpose of satisfactory continuing the proceedings. The heirs of the landlord do not inherit any transferable interest in the properties which are liable to attachment and sale 'in liquidation proceedings. The liabilities of the property to attachment and sale for the satisfaction of the debts transferred by the Special Judge to the Collector continue. The sons and daughters of the original debtor who became evacuees thus had no transferred interest in the properties. It is well settled that the properties which were the assets of an evacuee do not vest in the Custodian so as to make the Custodian the owner of these properties. The Custodian is only entitled to administer and manage the evacuee property. Here the properties which were held liable to attachment and sale in liquidation proceedings were inherited by the sons and daughters subject to the statutory liability. The Custodian of Evacuee Property could not claim a better right in the properties than what the evacuees possessed.
(3.) It is equally well settled that a legal representative cannot in the same legal proceedings put up an independent claim of his own. On being substituted he is entitled to prosecute or defend the proceedings in the same manner and on the same pleas as were or could have been taken by the original party. The Custodian as a representative of the heirs of the original debtor could not take up any fresh plea based upon the rights of the legal representatives in liquidation proceedings.;