- (1.) ONE Mohammad Amin, who was the father of Mohammad Din, on the stand taken by the Evacuee Property Authorities, migrated to Pakis tan in June, 1948. His properties were treated to be evacuee property and got automatically vested in the Custodian under the provisions of U. P. Ordinance No. I of 1949. Subsequently, treating the properties to be evacuee property a notifi cation was issued under Section 12 (1) of the Displaced Persons (Compensation and Rehabilitation) Act (Act XLIV of 1954) and the property in question was thereby acquired. The acquired property was thereafter auctioned on 1- 12-1960 and purchased by some one who has not been made a party in the present special ap peal; nor was he made a party in the writ petition giving rise to this appeal. The Assistant Custodian of Evacuee Property had during the lifetime of Mohammad Amin issued notices on 16th November, 1957 claiming arrears of rent in respect of the evacuee property. At this place it may be pointed out that Mohammad Amin had subsequent to his migration to Pakistan in June, 1948 come back to India on a temporary permit which allowed him to stay here for only six weeks. He, however, illegally continued to reside in India even after the expiry of the afore said period and was prosecuted and con victed on 16th November, 1957. When the aforesaid notices were issued he was in India. He filed an objection against the aforesaid notices, but the same was dis missed. Mohammad Amin died in 1959 and thereafter the appellant continued to file objections, appeals and revisions before various authorities which were all rejected. The appellant thereafter instituted a writ petition in this Court which was dis missed by a learned Single Judge by the judgment under appeal.
(2.) LEARNED counsel for the appel lant urged that U. P. Ordinance No. I of 1949 was ultra vires and, consequently, the property in question never vested in the Custodian, nor it became the evacuee property. The invalidity of the aforesaid Ordinance has, in our opinion, been cured by the amending Act of 1960 which added sub-section (2-A) to Section 8 of the Ad ministration of Evacuee Property (Act XXXI of 1950) Act. The said sub-section (2-A) provides:- "Without prejudice to the generality of the provisions contained in sub-section (2) any property which under any Law repealed hereby purports to have vested as evacuee property in any person exer cising the powers of Custodian, shall, not withstanding any defect in, or the invali dity of, such law or any judgment, de cree or order of any court, be deemed for all purposes to have validly vested in that person as if the provisions of such law had been enacted by Parliament and such property shall on the commence ment of the Act, be deemed to have been evacuee property declared as such, with in the meaning of this Act and accord ingly, any order made or other action taken by the Custodian or any other au thority in relation to such property shall be deemed to have been validly and law fully made or taken." In view o_f the aforesaid sub-sec. (2-A) and the judgment of the Sup reme Court in Azimunnissa v. Dy. Custo dian of Evacuee' Properties (AIR 1961 SC 365) which lays down the effect of sub-section (2-A) aforesaid, we are of opinion that the decision given by the respondents that the property in question was evacuee property, is unassailable.
(3.) LEARNED counsel for the appel lant then urged that the proceedings for acquiring the property in question under Section 12 (1) of Act XLIV of 1954 and the auction sale held on 1-12-1960 (which date falls subsequent to the death of Mohammad Amin) were illegal. In sup port of his contention learned counsel relied upon Zafar Ali v. Assistant Custo dian, Evacuee Property (AIR 1967 SC 106). The submission made by the learned counsel in this connection cannot be ac cepted on a variety of grounds. As a re sult of the property being acquired under Section 12 (1) of Act XLIV of 1954 the property became acquired property and vested in the Central Government. Nei ther the Union of India nor the person who purchased the property at the auc tion held on 1st December, 1960, were as already pointed out above, made parties in the writ petition, nor have they been made parties even in the special appeal. The question cannot, therefore, be .ad judicated upon in their absence. That apart Zafar Ali's case (supra) relied upon by the learned counsel, is clearly distin guishable. In the said case, it was held that on the requisite publication being made under Section 12 (1) of Act XLIV of 1954 the right, title and interest only of an evacuee in evacuee property gets extinguished and not of a person who is a non- evacuee. That was a case of several co-sharers owning the property and only two of them being evacuee. That was not a case where the right, title and interest of an evacuee had devolved upon his heirs. In the instant case, Mohammad Amin father of the appellant was an eva cuee and on his death, his right, title and interest devolved on the appellant. The interest which devolved upon the appel lant on the death of his father could not be larger than that of his father. In Sal-mond on Jurisprudence 12th Edition, at page 443 dealing with the topic of inheri tance it has been stated: "The rights which a dead man thus leaves behind him vest in his representa tives. They pass to same person whom the dead man, or the law on his behalf has appointed to represent him in the world of the living. This representative bears the person of the deceased and therefore, has vested in him all the in heritable rights and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the re presentative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns exercises and fulfils in the person of a living substitute. To this extent and in this fashion, it may be said that the legal personality of a man survives his natural personality, until his obligations being duly performed and his property duly disposed of, his representation among the living is no longer called for." ;