P.C.BOROOAH, J. - (1.) THE petitioners, who are eleven in number, claim to be the legal heirs and representatives of one Sheikh Gholam Rasul Qais who died intestate on the 17th Jan., 1977. The said Sheikh Gholarn RasulQais purportedly purchased premises No. 6, Harinbari First Lane, Calcutta -73 from one Mst. Khadiza Bi by means of a registered deed of conveyance dated Sept. 1, 1969. The particulars of the registration have been set out in para 4 of the petition.
(2.) IT is stated in para 3 of the petition that the said premises had been purchased by Mst, Khadiza Bi from the original owners by a registered kobala dated Feb. 15, 1945. After the death of Sheikh Gholam Rasul Qais the said property is said to have devolved upon the petitioners in accordance with the principles of succession under the Mohammedan Law. In this writ petition the petitioners have challenged the Notice dated April 21, 1979 issued by Sri A. S. Dasgupta, Assistant Custodian of enemy property, to the first petitioner Janab Tanwir Eqbal, wherein it has been stated that it has been ascertained that the immoveable property at 6, Harinbari First Lane, Calcutta -73 was owned by Mst. Khadiza Khatun, wife of Abdul Rasis, a Pakistani National, and is therefore 'Enemy Properly' and had vested in the Custodian of Enemy Property for the Government of India by virtus of a Notification issued by the Government of India, Ministry of Commerce, on Sept. 10, 1965 and as the property, in question was purported to have been transferred to the late Ghulam Rasul Qais under a registered deed of conveyance dated Sept. 1, 1969, such transfer of the properly after vesting was illegal and the first petitioner was asked to show cause within ten days of the receipt of the notice as fo why the rent and profits of the said enemy property should not be collected by the Custodian and why he should not deposit the rents and profits so far collected since Sept. 10, 1965 with the said Custodian. A copy of this notice, which is Annex. 'C' to the petition, is the subject matter of challenge in this Rule.
(3.) MR . Sankar Das Banerji appearing on behalf of the petitioners, has submitted that Mst. Khadiza Bi alias Khadiza Khatun had never migrated to Pakistan and she was an Indian citizen and continued to be such on the date of the sale of the property in question to the late Gholam Rasul Qais. Mr. Banerji has further submitted that in coming to the conclusion that Mst. Khadiza Bi was a Pakistani National, the respondents have relied on a report dated Sept. 14, 1979 from the Deputy Commissioner of Police, Special Branch, Calcutta, addressed to the Assistant Custodian of Enemy Property, according to which Mst. Khatiza Khatun not Khadija,the owner of 6, Harinbari First Lane, Calcutta -73, migrated to West Pakistan in the year 1949. Copy of this letter is Annex. 'A' to the supplementary affidavit affirmed on behalf of the respondents Nos. I, 2 and 3 by Sri Manindra Kumar Dutta, the General Assistant in the office of the Custodian of Enemy Property for India at Calcutta on Jan. 22, 1981. Mr. Banerji has further submitted that this report should not be relied upon in view of the statement made in paragraph 9 (2) of the affidavit -in -opposition affirmed by the same deponent on Jan. 9, 1981 from which it appears that the respondents' source of information is a purported letter dated Dec. 16, 1978 from one Md. Soleman to the effect that Khadiza Bibi, the owner of 6, Harinbari First Lane, Calcutta -73, and her husband Abdul Rashid migrated to Pakistan in 1947 and permanently settled in Karachi and became Pakistani Nationals. Mr. Banerji's further contention is that in view of the conflicting submissions made in the two affidavits this Court should come to the conclusion that Mst. Khadiza Khatun. was never a Pakistani National.;