- (1.) THIS is defendant's ap peal arising out of a suit for specific per formance of a contract of sale in respect of 7 annas share in the house in dispute. The material facts are as follows. The plaintiff was the owner of 7 annas share in the house No. 139/14 Hathikhana, Lucknow. She sold her said share in the house to the defendant. On the same day a deed of agreement was also executed whereby the defendant had agreed that if the plaintiff would pay a sum of Rs. 4, 000.00 within four years to her she would reconvey the said share of the plain tiff. One Wajid Ali Khan had also a 6 annas share in the said house and the defendant had originally 3 annas share in the same. Wajid Ali Khan migrated to Pakistan and his 6 annas share in the said property was declared to be evacuee property. The Custo dian sold the entire premises as composite property by public auction on 23-8-1963 to the defendant. The sale was confirmed and a sale certificate dated 18th October, 1963 was issued. On 9-2-1966 the plaintiff served a notice on the defendant requiring her to reconvey 7 annas share in the said house to her in pursuance of the agreement dated 14-5-1962. The defendant, however, failed to comply with the said notice, hence the suit was filed by the plaintiff for the specific per formance. The defendant contested the suit on a number of grounds. She alleged that the property in suit vested in the Custodian free from all encumbrances and liabilities and was sold by the Competent Officer, Lucknow by a public auction as composite property. The defendant purchased the said property in public auction for a considera tion of Rs. 5700.00 and thereafter spent a large amount on its constructions. She, therefore, contended that the plaintiff had no right in the property and as the said house had been declared composite property and had 'been sold as such, the defendant was under no obligation to reconvey 7 annas share in the said house to the plaintiff in pursuance of the agreement dated 14-5-1962. The trial Court accepted the contention rais ed by the defendant and dismissed the suit. On appeal by the plaintiff the findings of the trial Court were reversed and the suit was decreed. Aggrieved, the defendant has now come to this Court in second appeal.
(2.) IT was argued on behalf of the defendant-appellant that under sub-clause (a) (iii) of Section 10 of the Evacuee Interest (Separation) Act 1951 the Competent Officer had the power to take all such measures as he might have considered necessary for the purpose of separating the interests of the evacuees from those of the claimants in any composite property and sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in propor tion to the share of the evacuee and of the claimant of the property. It was argued that the Competent Officer in exercise of his powers under Section 10 sold the property in question and distributed the sale proceeds thereof. It was further argued that in view of the provisions of Section 11 of the said Act the whole property vested in the Custo dian free from all encumbrances and liabili ties and as such the defendant was relieved of all her obligations under the aforesaid agreement of 14-5-1962. The learned coun sel for the respondent, however, submitted that in view of the provisions of Section 12 read with sub-section (3) of S. 20 of the said Act the plaintiff was entitled to have the said agreement of 14-5-1962 specifically en forced. In order to appreciate the argu ments advanced by the learned counsel lot the parties it would be necessary to examine the scheme of the Evacuee Interest (Separa tion) Act, 1951 (hereinafter called the Act). This Act was passed for making special pro visions for the separation of the interest of evacuee from those persons in property in which such other persons are also interested. Section 2 (c) defines 'competent officer' as an officer appointed as such by the State Gov ernment under Section 4. Composite pro perty has been defined under Section 2 (d) as any property which or any property in which an interest has been declared to be evacuee property or has vested in the custodian under the Administration of Evacuee Property Act and in which the interest of evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other persons, not being an evacuee. Sec tion 5 of the Act deals with the jurisdiction of "competent officer". It confers jurisdic tion on the competent officer to decide any claim relating to any composite property situate within the limits of the local area of his jurisdiction. Section 2 (b) defines a claim as follows:- "Claim" means the assertion by any person, not being an evacuee, of any right, title or interest in any property, as a co-sharer or partner of an evacuee in the pro perty; or as a mortgage of the interest of an evacuee in the property; or as a mortgagor having mortgaged the property or any inter ests therein in favour of an evacuee. Section 6 empowers a competent officer to issue notices for the purposes of deter mining or separating the evacuee interest in composite property requiring persons claim ing interest in any composite property to submit claim to him. Section 7 deals with the procedure. Section 8 provides that on receipt of a claim the competent officer make an enquiry and pass an order determin ing the interests of the evacuee and the clai mant in the property. Section 10 empowers a competent offer to separate the interests of the evacuee from those of the claimant. It provides that the competent officer in parti cular may:- (a) in the case of any claim of a co-sharer............ (iii) sell the property and distribute the sale proceeds thereof between the custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property. Section 11 deals with the vesting of in terest of the evacuee in the custodian free from encumbrances and payments. Sec tion 12 provides that nothing in Chapter n shall prejudice any rights in respect of the property transferred or delivered, or payment made, to a claimant under the provisions of this Act which any other claimant or other-persons may be entitled by due process of law to enforce against the claimant to whom the property is delivered or transferred or the payment is made. Sub-section (3) of S. 20 provides that nothing in sub-s. (1) of S. 20 shall prevent any civil or revenue Court from entertaining any suit or proceeding re lating to any right in respect of any payment made or property transferred or delivered, to a claimant under the provisions of this Act which any other claimant or other per son may be entitled by due process of law to enforce against the claimant to whom the payment is made or the property is delivered or transferred. The contention of the learn ed counsel for the appellant that the whole premises in question vested in custodian free from all encumbrances and liabilities is there fore not sound. The object of the Act it not to vest in the custodian property which was not an evacuee property but to vest in him only the evacuee interest in the property after determining or separating as the case may be that interest from the interest of the other persons in the manner prescribed. Sec tion 11 of the Act, therefore, cannot vest in the custodian any property which is not an evacuee property. It cannot have the effect of making the entire property vest in the custodian as evacuee property where the order under Section 7 of the Act of 1950 held that a certain share in it only was evacuee property; See Abdul Hakim v. Re gional Settlement Commr., (AIR 1961 SC 1391). In the present case notices were issued by the competent officer inviting claims with respect to the composite property. Two claims were filed before him one by Smt. Shahanshah Jehan Begum and the other by Smt. Mehboob Jehan Begum. Shahanshah Jehan Begum had alleged that she sold 6 annas share to Mehboob Jehan Begum with in a period of four years. Mehboob Jehan Begum denied the agreement to reconvey the property. The competent officer found that fee share of the evacuee in the property was six annas and the value of that share was Rs. 3360.00. In regard to the question as to Whether Mehboob Jehan Begum was absolute owner or she had agreed to reconvey the property to Shahanshah Jehan Begum the Competent Officer held that Mehboob Jehan Begum was the owner of the 7 annas share which originally belonged to Shahanshah Jehan Begum and which the latter transfer red to the former. He, therefore, held that Shahanshah Jehan Begum could not be held to be co-sharer in the property at that stage and the evacuee share, thus, could not be transferred in her favour. He further held that the evacuee share would, therefore, be transferred to Mehboob Jehan Begum on payment of its money value. It was observed by the competent officer that Shahanshah Jehan Begum did not show interest in pur chasing the evacuee share. A certified copy of the order of the Competent Officer is Exhibit 2 on the record. Obviously, the entire property was, therefore, not held to be the evacuee property. The share of the evacuee was found to be only 6 annas in the property; hence the entire property did not and could not vest in the custodian.
(3.) IT is, however, not disputed that the entire house was a 'composite property' as defined in Section 2 (d) of the Act. It is also not disputed that in pursuance of the provisions of Section 10 (a) (iii) of the Act the competent officer sold the entire property by public auction on 23rd August, 1963 to Srimati Mehboob Jehan Begum and granted a sale certificate exhibit A-l. It was argued that in view of these supervening events it became impossible for the defendant to per form the original contract of re- conveyance of 7 annas share which the defendant had purchased from the plaintiff.;