TMI Blog1961 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... standing of the facts on which these considerations which are all based on question of law arise. The appellant Fazal Bhai Dbala and his brother Abdulla Dhala were partners in a business of hides and skins. A deed of partnership was executed on January 1, 1941, and the firm was registered in the Register of Firms, Cuttack, under s. 59 of the Indian Partnership Act. On August 10, 1949, Abdulla Bhai Dhala executed a deed of sale in respect of some immovable properties at Jharsuguda in Orissa, and also certain properties, at Madras, in favour of Fazal Bhai Dhala. The consideration in the document was mentioned as ₹ 85,000 of which ₹ 50,000 was mentioned as the value of the Madras properties and ₹ 35,000 as the value of the Orissa properties. The sum of ₹ 85,000 appears to have been paid in the presence of the Registrar by Fazal Bhai to Abdulla Bhai on August 11, 1949. A deed of dissolution of the partnership was also executed on the following day-the 12th August, 1949. It was stated therein that the two partners had agreed that the said partnership shall stand dissolved as and from 2-11-48 and it has further been agreed that as from that day, 2-11-1948, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mentioned in Schedule A (1) and (II) mentioned in the notice under sub-section 1 of s. 7 of the Government of India Ordinance No. XXVII of 1949 should be set aside. The Custodian agreed with the Assistant Custodian, in respect of these properties, and held that these had been rightly declared as evacuee properties. He went further and held that there was no justification for the Assistant Custodian taking a different view as regards the other properties. His conclusion was that in fact, with regard to these properties also the same amount of mala fides was present and as such these should also be included in the list of evacuee properties ; and that it is but proper that the entire 8 annas share of the properties mentioned in Schedules A and B of the evacuee Abdulla should be treated as evacuee properties . The Custodian finally ordered: in consequence of my above decision according to s. 6 of the Evacuee Interest Separation Act, the entire properties in Schedules A and B should now be treated as evacuee properties and revised action should be taken to notify as ,such under s. 7(3) of the Administration of Evacuee Property Act and the appellant be directed to get his 8 annas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the order it is proper and reasonable to hold that he passed it in the exercise of the only jurisdiction he had-viz., the revisional jurisdiction and the fact that this was not clearly stated in the order can be no ground for holding that he was not exercising revisional jurisdiction. It is quite another matter whether in the exercise of that jurisdiction, he proceeded in accordance with law. Mr. Aehhru Ram contended that under the law, the Custodian was required to issue a notice to the parties concerned before exercising his, revisional jurisdiction. Admittedly, no such notice was issued; and this omission to issue a notice was put by the appellant in the forefront of his grievances both in his petition for revision before the Custodian-General and in the application for special leave to appeal to this Court. Turning however to s. 26 we find that there is no provision for service of any notice. The section runs thus: 26. Powers of review or revision of Custodian etc. (1) The Custodian, Additional Custodian, or( Authorised Deputy Custodian may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd before any order prejudicial to him is made in revision. If this reasonable opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper hearing can be given without service of notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given. A perusal of the Custodian's judgment makes it reasonably clear that he informed the counsel who appeared on Fazal Bhai. Dhala's behalf, that he proposed to consider whether the order made by the Custodian in respect of the hides business and the Sch. A III properties had been rightly made and to revise the same, if necessary, after giving a reasonable opportunity of being heard to Fazal Bhai on this point. It is equally clear that the appellant's advocate was fully heard in the matter. We have no doubt therefore that the requirements of law as embodied in the proviso to s. 26(1) of the Act were fully satisfied. The contention that the Custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail. The next con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the claim to wind up; for the declaration merely is that Abdulla Bhai's share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. The validity of the dissolution is not touched. It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdulla's share stood transferred to Fazal Bhai any more than that Fazal Bhai's share stood transferred to Abdulla Bhai. A purported transfer of Abdulla's share was made by the deed itself. But this having been held to be without good faith, had in view of s. 40 of the Evacuee Property Act, no effect. It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnership Act. There remains for consideration the appellant's contention that in any case the Custodian acted illegally in the exercise of his jurisdiction in ordering that the entire prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was only a step in the apportionment of the assets of the firm and not a transfer outside the partition of the assets of the firm. He held that the transfer was bona fide and made an order in these terms: I therefore accept the dissolution of the firm of Fazalbhai Dhala and Company covered by the dissolution deed dated 12-8-49 and confirm the transfer of the immoveable properties covered by the deed dated 10-8-49 under section 40(5) of the Administration of Evacuee Property Act, 1950. When this matter came to the notice of the Custodian-General of Evacuee Property in the course of the proceedings before him in respect of the Orissa property, he observed: As for the Madras properties, I notice that Mr. Rathanam's order was allowed to go unchallenged by the department and as it is not before me, therefore, I am not called upon to express my opinion. This was on December 26, 1953. It appears that the Custodian-General also made a suggestion to the Custodian, Madras, that he might examine the propriety of the order passed by the Assistant Custodian., Madras. Accordingly, the Custodian, Madras, examined the records and issued notice to interested parties including Faz ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
