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TMI Blog1965 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... na was an evacuee, and as all properties belonging to her were evacuee properties including her share in the properties mentioned in the said notice the Custodian would hold an enquiry on March 2, 1955 in the matter. A similar notice bearing the same date was served on Noorbanu, the widow of the Khan Bahadur. 3. On March 2, 1955 a preliminary objection was lodged by the appellants before the Senior Assistant Custodian in which they challenged the validity of notice and made a request that this question be tried as a preliminary issue. The Senior Assistant Custodian by his order dated March 3, 1955 overruled the preliminary objection and set down the matter for March 10, 1955 for recording evidence. 4. Against this order the appellants preferred a writ petition in the former High Court of Hyderabad on or about March 10, 1955. This was dismissed on the ground that the appellants had a remedy under the Administration of Evacuee Property Act by way of an appeal against the order of the Custodian. Accordingly the appellants filed an appeal before the additional Custodian of Evacuee Property. The appeal was dismissed on April 4, 1955 whereupon the appellants preferred a second writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in his order dated March 31, 1956 that the following properties were left by the Khan Bahadur: 1. Houses bearing Nos. 72, 92, 92/A, 92/B, 93 and 93/A situate at Sarojani Devi Road, Secunderabad-Deccan. 2. House bearing No. 3914 situate at Market Street, Secunderabad. 3. Houses bearing Nos. 1-8-540 to 570 situate at Begumpet, Hyderabad-Deccan. 4. Mulgi No. IVC-I-1097 (old) 21-1-1097 (New) situate at Pathargatti, Hyderabad-Dn. 5. S. Nos. 59, 60/1, 57/1 and 75/1-2, measuring about 200 acres situate at village Fatehnagar Tq. Hyderabad-West, Dist Hyderabad and Survey No. 67/1 at Pahool Khan Guda, Taluq Hyderabad, Distt. Hyderabad. 6. Land measuring about 300 acres, known as Alladdin East situate at Sanatnagar and Erragadda, Hyderabad-Dn. 7. Houses bearing Nos. F-1-648 to 699 situate at Sanatnagar, Hyderabad-Dn. 8. 136 Labour quarters situate at Sanatnagar, Hyderabad-Dn. 9. 8 buses situate behind Laminated Factory, Hyderabad-Dn. 10. 3 barracks in the North of Erragadda in Alladin Estate, Hyderabad-Dn. 11. Firm known as Khan Bahadur Ahmed Alladdin Sons situate at Secunderabad-Dn. 12. Properties mentioned in the will executed by the deceased and any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be regarded as sufficient notice to the partners of the firm, the appellants 2 and 3. There is no substance in this contention because apart from them, there are no other partners in the firm and in pursuance of that notice both these appellants entered appearance and submitted to the jurisdiction of the Custodian. But then it is said no notice was issued to Zarina who was obviously a person interested because according to the Custodian she has 7/48th share in the property. It is true that no separate notice was issued to Zarina on this occasion but on April 29, 1950 a notice was issued to her under Section 5(3) of the Hyderabad Administration of Evacuee Property Regulation No. XII of 1359F. It may be mentioned that at the time Zarina migrated to Pakistan it was this regulation which was in force in the former State of Hyderabad and it was alter action had been taken under this Regulation against Zarina that the Administration of Evacuee Property Act, 1950 was applied to the State of Hyderabad. Under Section 5(1) of that Regulation, where the Custodian is of opinion that any property is evacuee property within the meaning of the Regulation he may, after causing notice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evacuee property does not belong to an evacuee or that an evacuee has no interest therein. Therefore, once a person has been declared an evacuee after due notice it would be unnecessary to give notice to him thereafter under Section 7 of the Act. No purpose will be served by issuing such notice because the earlier notification would be conclusive against the evacuee on the question of his migration to Pakistan. Having migrated to Pakistan the evacuee loses all interest in the property left by him in India in the sense that upon its being declared as 'evacuee property' it would vest in the Custodian alone under Section 8(1) of the Act. That is to say, where any property of a person has been declared 'evacuee property' he must be deemed to be an evacuee. The only persons who could claim to be interested in the property would, therefore, be those who have not migrated to Pakistan and who may possibly claim that the property is theirs and did not belong to the evacuee. It is immaterial for the purposes of Section 7 whether a particular property had actually devolved on-the evacuee before migration to Pakistan or devolved later. Whatever be the point of time at which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not seriously contended before us by Mr. Agarwala that the description was inadequate. His argument concerned items 11 and 12 only. Item 11 already quoted by us pertains to the assets of the firm of which the father and the sons were partners. This, in our opinion, is sufficient to identify the assets of that firm. It is item 12 which needs careful scrutiny. What is specified therein is Properties mentioned in the Will executed by the deceased Khan Bahadur Ahmed Alladdin and any other property left by him. In so far as the last portion is concerned, that is any other property left by him we are clear that it is far too vague and unless it is shown that a particular item falls under items 1 to 11 or is a property mentioned in the will as belonging exclusively to the Khan Bahadur it will have to be left out. Para 4 of the will which is material for this purpose reads thus: After payment of the above set out Legacies my executors are directed to divide the remaining property consisting of: (a) All my shares and stocks in various Companies in our State and elsewhere and all cash balances in Banking Accounts. (b) My immovable properties set out as under: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended by Mr. Agarwala that it did not. He, however, strenuously urged that in so far as the firm of Khan Bahadur Ahmed Alladin Co. is concerned the notification is deficient. We agree. There is no reference to the assets of this company either in the notification or in the will of the late Khan Bahadur. In these circumstances we hold that no part of the assets of this company has vested in the Custodian. Barring this property we are satisfied that the notification sufficiently describes the late Khan Bahadur's property in which Zarina had a share. 14. Reference was made to several cases which lay clown that Khojas belonging to the former State of Bombay are, in the matter of succession, governed by Hindu law. Some of those cases are referred to at p. 20 of Mulla's Principles of Mahomedan Law, 15th edn. in support of the following statement of law occurring therein: In the absence of proof of special usage to the contrary, Khojas and Cutchi Memons in the Bombay State were governed in matters of succession and inheritance, not by the Mahomedan, but by the Hindu law.' The learned author has further observed that this customary law has been to a great extent abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved unless such custom is allowed to be proved by enactment. The Judicial Committee of the former State of Hyderabad was at the apex of the judiciary in that State and the law laid down by it must be deemed to have been the law of Hyderabad till the Shariat Act was extended to it. In the circumstances, therefore, we hold that the Khan Bahadur was incompetent to make a will and that consequently the property left by him must devolve on his heirs as if he had died intestate. It was contended by Mr. Agarwala that the will was accepted by the heirs of the late Khan Bahadur and therefore the question of his capacity to make it could not arise. Apart from anything else, there is no proof of this on the record. We, therefore, reject his contention. 15. The third point raised by Mr. Agarwala concerned property which we have dealt with while dealing with the question as to the sufficiency of the notice. In view of what we have held there the share of Zarina in the interest held by the Khan Bahadur in the assets of M/s. Khan Bahadur Ahmed Alladin Co., could not vest in the Custodian. That portion, therefore, will have to be left out of consideration. Subject to this modificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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