Bapna, J. - (1.) THIS is a petition under Arts. 226 and 227 of the Constitution of India.
(2.) THE facts, as stated in the petition, are that Seth Ali Mohammad of Bhawani Mandi executed a will in the year 1944, by which he bequeathed Rs. 18,000 - outstanding against the petitioner Hasan Ali, one of his sons, to be distributed amongst various persons, including the sons and widow of his another son Ismail Ali. Amongst the sons of Ismail Ali, Asghar, Hussain and Fakaruddin were to get Rs. 3,150/- each. THE District Assistant Custodian of Evacuee Property, Kotah, took proceedings under sec. 7 of the Administration of Evacuee Property Act for declaring Asghar, Hussain and Fakaruddin to be evacuee and their property to be evacuee property. During the course of proceedings, the petitioner submitted to the Assistant Custodian that Rs. 3,150/- due to Asghar had been paid, and that the remaining sum of Rs. 6,300/- due to Fakaruddin and Hussain had also been paid to Sakina Bai under instructions of the said two persons. It is said that an objection was also taken that the claim put forward by the Custodian was time-barred, and he had no jurisdiction to recover the amount. It is alleged in the petition that Sakina Bai, after receiving Rs. 6,000/- as aforesaid, re-deposited the amount with the petitioner, but later on she received Rs. 4000/- from the petitioner from time to time. THE further allegation in paragraph 9 of the petition, which is important, is that the Assistant Custodian by order dated 15th September, 1955, declared the sum of Rs. 9,450/- as evacuee property, and directed the petitioner to pay this amount within a month of the date of the order. It was stated that the petitioner filed an appeal, but it was dismissed by the Additional Custodian of Evacuee Property on 24th January, 1956. THE present petition was filed on 4th May, 1956, challenging the validity of the order of the Assistant Custodian dated 15th September, 1955, as confirmed by the Additional Custodian on 24th January, 1956. In our opinion this petition has no force, and must be dismissed. The grounds submitted raise two objections that the property declared was not evacuee property and that the Custodian had no power to decide that the debts were due against the petitioner. It was not disputed that Asghar, Hussain and Fakar-ud-din had migrated to Pakistan, and were evacuees. The will by Ali Mohammad is not disputed either. The first contention has no force. As to the second contention, learned counsel cited the following authorities : - Firm Sahib Dayal Bakshi Ram vs. Assistant Custodian of Evacuee Property Amritsur (1), Firm Pariteshah Sadashiv vs. Asst. Custodian of Evacuee Property, Amritsar (2), J. M. Massey vs. Custodian Evacuee Property, Punjab (3), Custodian General of Evacuee Property New Delhi vs. Harman Singh (4), D. B. Godhole vs. Kanwar Rajnath (5), S. Benjumin vs. Ebrahim Aboobakar (6) Gangadhar vs. State of Rajasthan (7), Manoharlal vs. Custodian, Rajasthan (8 ). The authorities cited are not applicable to the facts of the present case. All these authorities have said that when there is dispute as to whether any debt is due to any evacuee or not, the Custodian cannot determine that the amount is due, but that he has to take recourse to a civil court for determination whether the amount is due or otherwise. In every one of those cases, the Custodian had determined the liability of the debtor, and action was taken for recovery of the amount under sec. 48, sub-sec. (1) of the Administration of Evacuee Property Act, or the decision was sought to be supported by reference to sub-sec. (2) of sec. 48 of the Act. In Firm Sahib Dayal Bakshi Ram's case (1) it is mentioned in paragraph 6 that the notice issued by the Custodian was that the applicant should deposit the sum of Rs. 9000/- and odd within a week of the receipt of the notice, failing which action would be taken under sec. 48 of the Administration of Evacuee Property Act, 1950. The order passed in the case was directing the Custodian to forbear from proceeding against the applicant under sec. 48 of the Act for the recovery of debts which the Custodian maintained were payable from the applicant to Muslim evacuees. In Firm Pariteshah Sadashiv's case (3), the action of the Custodian was sought to be justified by reference to sec. 48. As mentioned in paragraph 4 of the judgment, it was further pleaded that according to secs. 13 and 48 of the Evacuee Property Act, 1950, the amount was due and recoverable and that the Custodian was empowered under the Act to determine the amount and to recover the same as arrears of land revenue. The contention was negatived, it being held that the power to determine disputed questions, particularly of time barred debts, was not given to the Custodian. In J. M. Messey's case (3), the Custodian relied on sec. 48 of the Evacuee Property Act, and urged that the Custodian had power to recover the sum which he thought was due under sec. 48 of the Act. The decision was in paragraph 8 of the judgment: - "i have not been able to discover any provision in the Act by which the Custodian can recover rents of properties situated as the property in dispute is, and my opinion the machinery provided by sec. 48 is not available to the Custodian. I would therefore allow this peti tion and issue a mandamus directing the Custo dian to forbear from recovering this claim, if any, by using the machinery under sec. 48 of the Act. If he has any other remedy it will be open to him to employ it. " In Custodian General of Evacuee Property vs. Harnam Singh (4), as mentioned in paragraph 6 of the judgment "the summary remedy provided by sec. 48 for the recovery of sums due to the State Government or to the Custodian must, be restricted to sums legally recoverable, i. e. sums which are admitted or proved to be due and cannot be extended to sums which are alleged or claimed to be due". The decision in the case was that a sum demanded had not been admitted or proved, to be due and as the amount was not due under the provisions of the Act, it was not within the power of the Custodian to direct the Assistant Collector, Ambala, to issue a writ of demand (under sec. 48 of the Act ). In D. B. Godboles case (5), the facts are not stated in the judgment, except very briefly, and this was a decision on appeal from the decision of the Single Judge of that Court. What has been decided is that under sec. 48 (2), the Custodian is not authorised to decide that a particular amount is outstanding when there is a dispute about the liability. In S. Benjamin vs. Ebrahim Aboobakar (6), the head note runs as follows: - "under the provisions of the Administration of Evacuee Property Act, 1950, any sum due to an evacuee in respect of his right, title and interest in property is evacuee property and the right to recover such sum vests in the Custodian. But the Act confers no power on the Custodian whereby he himself could determine what sum is due to the evacuee by the person in possession of such property without resorting to a Court of law or to proceed to recovery the sum so determined by him by summary process as arrears of land revenue. " The reference is obviously to sec. 48, sub-sec. (1) of the Act. In Gangadhar vs. State of Rajasthan (7) is has been held that: - "the evacuee property law may authorise the Custodian to seize the property of evacuees if he can get hold of it after going through certain. formalities prescribed by it. But if the property is not to be found at all. and he cannot get hold of it, there is no provision in law relating to evacuee property which authorises him or his Deputy to hold on the basis of evidence that certain property was evacuee property and had been taken away by certain persons, and though it was not available at all, to pass what amounts to a decree against the person whom he suspects of having made away with the property. " In Manoharlal's case (8), the Custodian in the case of a disputed claim had m6ved for the recovery of the amount through the Collector as arrears of land revenue.
(3.) WHAT has been done in the present case so far is that Custodian has declared under sec. 7 of the Act that Rs. 9450/- is evacuee property, being the debts due to the evacuees Asghar, Hussain and Fakar-u-din. It is not disputed that these persons have migrated to Pakistan, and were liable to be declared evacuees. The order of the Assistant Custodian shows that a report had been received that Ali Mohammad had executed a will by which Rs. 18,000/- were to be distributed among the sons and widow of Ismail Ali, and that the amount directed to be paid to Asghar, Hussain and Fakar-u-din had not been paid to them. The final order that was passed is : - "considering all these facts I hereby declare Asghar, Hussain and Fakar-ud-din as evacuees under sec. 2 (d) (i) and (ii) of administration of Evacuee Property Act of 1950 and this amount of Rs. 9450/ - is declared as an evacuee property under sec. 2 (f) of the Act. Shri Hassan Ali (with whom the amount had been originality deposited) is directed to pay this amount of Rs. 9450/ within one month from to day. " The appellate order of the Additional Custodian of Evacuee Property begins by saying that : - "this is an appeal against the order of the District Assistant Custodian Kotah dated 15. 9. 55 declaring Asghar, Hussain and Fakar-ud-din as evacuees and a sum of Rs. 9,450/- as evacuee property. " On a contention being raised, before the Additional Custodian, that the court of a Custodian was not competent to execute the order which exclusively was the concern of a court of civil jurisdiction, the observation of the Addl. Custodian was that he was mainly concerned with the question whether Asghar, Hussain, and Fakar-ud-din were the evacuees in the case and their money amounting to Rs. 9,450/- was an evacuee property. Learned counsel has urged in his grounds of petition that the Assistant Custodian had usurped the jurisdiction of the civil courts, and passed a decree against the petitioner for the payment of Rs. 9,450/ -. This is not true. What he has purported to do is to declare a certain debt to be evacuee property. It was urged that in giving the notice demanding money from the petitioner, he was trying to proceed under sec. 48 of the Act. This is not correct sec. 8 declares that any property declared to be evacuee property under sec. 7 shall be deemed to have vested in the Custodian for the State. Under sec. 10 the Custodian is authorised, in the case of evacuee property, to take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under the Act. Under sub-Sec. (2) of sec. 10, without prejudice to the generality of the provisions obtained in sub-sec. (1), the Custodian is authorised under clause (i) to take such action as may be necessary for the recovery of any debt due to the evacuee. It is obvious that the first step that the Custodian can take is to call upon the debtor to pay the amount, and this is what the Assistant Custodian has done in the case. By the same order by which he declared the debt to be evacuee property, he called upon the debtor to pay the amount. No action has been taken under sec. 48, and it is too early to say that the Custodian will not seek the assistance of a proper court to recover the amount, if the debtor has any objection to payment of the amount. There is no force in this petition. It is accordingly dismissed. There will be no order as to costs, as the respondents have not entered appearance. . ;