Jumshed Fatma Alias Abida Khatoon v. Assistant Custodian Enemy Property
1986-02-17
B.D.AGRAWAL
body1986
DigiLaw.ai
JUDGMENT B.D. Agrawal, J. - This appeal is directed against an order of the District Judge dated 14-8-1972 passed under Section 47 Civil Procedure Code. 2. The appellant is the wife of Mubarak Hussain, who died, an Indian National, on July 17, 1966, leaving behind him his widow and two sons, namely, Mohd. Wasim and Mohd. Nasim. Mohd. Nasim had admittedly migrated to Pakistan in 1947-48 and was a citizen of that country during the relevant period. Original Suit No. 23 of 1969 was filed by the appellant for recovery of dower debt. The suit was decreed on September 27, 1969 in her favour. The decree was put to execution by her on October 28, 1959, claiming recovery of the amount against the assets of Mubarak Hussain, the deceased husband, in the hands of the opposite parties. The Assistant Custodian Enemy Property filed objections under Section 47 Civil Procedure Code contending that the share of Mohd. Nasim had vested in the Custodian Enemy Property and hence it could not proceeded against. The objection has been allowed by the execution court under the impugned order with the observation that in view of Section 24 Enemy Property Act, 1968, the notification dated September 10, 1965, issued by the Central Government under the Defence of India Rules, 1962, shall cover also the property, which came to be held by a Pakistani National subsequent to 10th September, 1965. Aggrieved the decree-holder has preferred this appeal. 3. Learned counsel for the appellant urged that the interpretation given by the court below to the notification dated 10th September, 1965, is erroneous. The succession opened on 17th July, 1966, when Mubarak Hussain died and the notification may apply to only such property as was held by a Pakistani National on the date of the issue thereof and not in respect of property, which may have come to held by a Pakistani National subsequent thereto, I am unable to agree. The notification of the Central Government dated 10-9-65 issued under Rule 133-V (1) Defence of India Rules, 1962, provided that all immovable property in India belonging to or held by or managed on behalf of Pakistani National shall vest in the Custodian of Enemy Property for India with immediate effect. The same question arose before me in Gayas Uddin v. Allah Tala Waqf and another, ( AIR 1986 All 30 ).
The same question arose before me in Gayas Uddin v. Allah Tala Waqf and another, ( AIR 1986 All 30 ). The view taken was that the aforementioned notification is drawn along the lines of the statutory provision contained in Rule 133-V(1) (b) and nothing contained therein restricts the application thereof to such properly alone as was enemy property on the date of issue of this notification. For so long as the notification is operative it may cover all such immovable property as may acquire the character of the enemy property even though his is subsequent to 10-9-1965. In support, reference was made to another unreported decision of this Court in Taufis Kamar v. Custodian Enemy Property of India, Writ Petition No. 6120 of 1971, decided on 30-4-1979) also. This, moreover, is rendered of academic interest only so tar as this case is concerned because the appellants learned counsel concedes that similar notification being issued subsequent under the Defence of India Rules, 1971, that would have the effect in any event to vest the interest of Mohd. Nasim in the Custodian of Enemy Property of India. 4. It is submitted, however, for the appellant that even accepting this position the assets of Mubarak Hussain deceased in the hand of Mohd. Nasim, which have come to be vested in the Custodian Enemy Property, tire liable nonetheless to be proceeded against for the recovery of dower debt. The law is settled that the heirs of a deceased Mohammadan are not personally liable for the dower debt, but as in the case of other debts due from the deceased so in the case of dower debt each heir is liable for the debt to the extent only of a share of the debt proportionate to his share of the estate Mulla : Mohammadan Law 18th Edn. paragraph 294 p. 314). The Custodian Enemy Property cannot, therefore, escape liability in proportion to the share of Mobd. Nasim in the assets of his deceased father for the payment of the dower debt from out of the property, thus, vested. The execution court has not at all taken into consideration this material aspect, it is significant also to note in this connection that the Custodian Enemy property was impleaded as a party to original Suit No. 23 of 1969, which was decreed on 27th September, 1969.
The execution court has not at all taken into consideration this material aspect, it is significant also to note in this connection that the Custodian Enemy property was impleaded as a party to original Suit No. 23 of 1969, which was decreed on 27th September, 1969. There was no appeal against the decree and the same has become final. On this account also the Custodian is precluded from refuting his liability under the decree, which has been put to execution. 5. For these reasons the appeal succeeds and is allowed. The order impugned dated 14th August, 1972, is set aside. The appellant-decree-holder may proceed also against the assets of her deceased husband in the hands of Mohd. Nasim vesting in the Custodian of Enemy Property to the proportionate extent. Costs on parties.