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TMI Blog1969 (2) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... indu family and its members admittedly became eva- cuees and the then Imperial Bank of India, Bhawalpur State, sold the pledged goods in the year 1948 for the realisation of its dues in the said cash credit account and credited a sum of ₹ 2,54,1/11/- left as surplus balance after the adjustment of the dues of the Imperial Bank of India in the said account. On October 15, 1949, the Pakistan Government promulgated Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance No. XV of 1949) whereby all property in Pakistan in which an evacuee had any right or interest vested in the Custodian of Evacuee Property with retrospective effect from March 1, 1947. The expression 'evacuee property' was defined by s. 2 sub-s. (3) of the Ordinance to include any right or interest in joint Hindu family property. 'Cash deposits in Banks' were how ever excepted from the definition of the term 'property' by s. 2(5) of the Ordinance. The Ordinance was amended in 1951 by the Pakistan (Administration of Evacuee Property) Amendment Act, 1951 (Act No. VI of 1951) whereby s. 2(5) of the Ordinance was amended so as to bring cash deposits in Banks within the definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is brought by special leave from the judgment of the Punjab High Court dated 12th September, 1963 in Civil Revision No. 104-D of 1958. Section 2 sub-section (3) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance No. 15 of 1949) defines the term 'evacuee property' as meaning any property in which an evacuee has any right or interest, or which is held by or for him in trust, and includes- (a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or (b) property obtained from an evacuee after the twenty eighth day of February, 1947, until confirmed by the Custodian, but does not include- (i) any movable property in the immediate physical possession of any evacuee, or (ii) any property belonging to a joint stock company the head office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India and continues to be so situated after the said date . Section 2 sub-section (5) defines the term 'property' as follows:- property' means property of any kind, and includes any right or interest in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance, for the words 'sixty days from the commencement of this Ordinance' the words 'such date as may be notified by the Central Government in the Official Gazette, shall be substituted, and the words 'upon receipt of a notice from the Custodian that the property is evacuee property' shall be omitted . Section 11 of the Ordinance states 11. (1) Any amount due to any evacuee, or payable in respect of any evacuee property, shall be paid to the Custodian by the person liable to pay the same. (2) Any person who makes a payment under subsection (1) shall be discharged from further liability to pay to the extent of the payment made. Sup/69-9 (3) Without prejudice to any penalty to which he may be liable under section 29, any person who makes or has made any payment otherwise than in accordance with sub-section (1) or any law for the time being in force requiring payment of any such amount as is mentioned in sub-section (1) to be made to the Custodian shall not be discharged from his obligation to pay the amount due, and the right of the Custodian to enforce such obligation against such person shall remain unaffected . The first question involved in this appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily unit; and the possession by it of pro- perty is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz., the undivided state--its forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family . Adverting to the nature of the property owned, by such a family the learned Judge proceeded to state As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is, owned by the family as 'a corporate body and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body . Having regard to the juristic nature of the Hindu joint family, according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises were situate in Arab controlled territory and the respondent Bank's premises were situate in Israel territory. By legislation the State of Israel vested in an official called the 'Custodian of the Property of Absentees', the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank. The respondents paid the appellants' credit balances, amounting to some pound 5,83,000 to the custodian. In 1950 the appellants sued the respondents for this sum. It was held that the right to be paid the credit balance survived the outbreak of war, remaining in existence. subject to the suspension of the appellant bank's right to recover it. Being locally situate in Israel, it became subject to the legislation of that State and vested in the custodian, and was not recoverable by the appellant bank from the respondent bank. The key to the problem lies in distinguishing between (1) questions of assignability, which are governed by the proper law of the debt, and (2) questions of attachment or garnishment (involuntary 'assignment) governed by the lex situs of the debt. If, for example, an involuntary assignment occurs after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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