RABIA BAI Vs. CUSTODIAN ENERAL OF EVACUEE PROPERTY

JUDGEMENT

(1.) This appeal by special leave is directed against the order passed by the respondent the Custodian General of Evacuee Property New Delhi, in a revision petition confirming the orders of the subordinate authorities whereby the application made by the appellant for confirmation of the sale transaction in question has been rejected under S. 40 (4) (s) of the Administration of Evacuee Property Act, XXXI of 1950. The appellant Rabia Bai, who is a citizen of India having her residence at Grange, Yercaud in the Salem District, came to know in 1949 that premises No. 20, Godown Street, G. T., Madras, was for sale. Since the appellant desired to acquire some immovable property she arranged for the purchase of the said premises through her husband. The said premises belonged to one Mohamad Gani Jan Mohamad who had left for Pakistan in 1947 and had settled there. The said Mohamad Gani Jan Mohamad had executed a power of attorney in favour of his nephew Ahmed Abdul Gani. The said Gani came to Madras in April 1949 and arranged for the sale, and as a result of negotiations between him and the appellant's husband the latter entered into a written agreement with the former on April 29, 1949, to purchase the said property for Es. 2,40,000. A substantial part of the consideration to the extent of Rs. 1,50,000 was paid immediately in the form of cash and bank drafts. Thereafter, the sale deed was duly engrossed and sent to Karachi for execution by the vendor. After it was received back duly executed it was presented at the Collector's Office, Madras, and was duly stamped on June 27, 1949. Income-tax clearance certificate had, however, to be obtained before the said document could be registered, and soon after the said certificate was obtained the document was presented for registration and was duly registered on August 11, 1949. The balance of the consideration of Rs. 30.000 was paid before the registering officer to Mr. M. H. Ganni who also held a power of attorney from the vendor. That is how the appellant obtained title to the property in suit. As we will point out the appellant applied for confirmation of this sale deed and her application has been rejected. Before we refer to the relevant facts in connection with the said proceedings it is material to set out very briefly the history of the application of the evacuee laws to the State of Madras.

(2.) Within a fortnight after the registration of the sale deed in favour of the appellant Ordinance No. XII of 1949 which had been promulgated on June 13, 1949, was extended to Madras on August 23, 1949. Section 25 (1) of the Ordinance imposed restrictions on transfers by evacuees. In substance this sub-section provided that transfers made by or on behalf of evacuees of any right or interest in their property after such date as may be specified in that behalf with reference to any Province by the Central Government by notification in the official gazette shall not be effective unless they are confirmed by the Custodian, Section 25 (2) provided that an application for confirmation of such transfer may be made by the transferer or the transferee or any person claiming under, or lawfully authorised by, either of them to the Custodian within two months from the date of registration of the deed of transfer or within two months from the commencement of the Ordinance which ever is later. The proviso to the said sub-section empowered the Custodian to admit an application even if it was made after the period of limitation prescribed therefore if he was satisfied that there were sufficient reasons for doing so, and it imposed on the custodian an obligation to record such reasons. Sub-section (3) required the Custodian to hold a summary enquiry into the application in the prescribed manner, and authorised him to reject the application for confirmation if he was of opinion that (a) the transaction had not been entered into in good faith or for valuable consideration, or (b) the transaction was prohibited under any law for the time being in force, or (c) the transaction ought not to be confirmed for any other reason. Sub-s. (4) provides that if the application is not rejected under sub-s. (3) the Custodian may confirm the transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose.

(3.) Ordinance No, XII of 1949 was, however, repealed by Ordinance No. XXVII of 1949, which came into force on October 18, 1949. Section 38 of this latter Ordinance corresponds to S. 25 of the earlier Ordinance except in one material particular. It provides that no transfer of any right or interest in the property made in any manner whatsoever after the 14th day of August, 1947, by or on behalf of an evacuee as therein specified shall be effective unless it is confirmed by the Custodian. In other words, whereas S. 25 of the earlier Ordinance left it to the Central Government to specify the relevant date in reference to any province by notification in the official gazette, S. 38 (1) has prescribed the date for all the Provinces where the Ordinance applied. The rest of the relevant provisions of S. 38 are the same as those of S. 25 of the earlier Ordinance.