Case Note & Summary
This civil appeal by special leave arose from an order of the Deputy Custodian General concerning the recovery of Rs 85,000 from the appellant under the Administration of Evacuee Property Act, 1950. The appellant’s sister had deposited Rs 90,000 with him in January 1946, of which Rs 5,000 was later withdrawn, leaving Rs 85,000. The sister migrated to Pakistan between June and August 1949. The Assistant Custodian initially sought recovery of the sum under the then existing Section 48 of the Act, treating it as evacuee property. The appellant resisted, claiming the money was a loan and that its recovery was barred in January 1949 before the sister became an evacuee. The Assistant Custodian directed recovery as arrears of land revenue. The appellant’s appeal and revision failed. He then filed a writ petition before the Saurashtra High Court; a Single Judge dismissed it, but a Letters Patent appeal succeeded on 9 December 1957, holding that the old Section 48 did not permit recovery. Meanwhile, Section 48 was amended by Act 91 of 1956 with effect from 22 October 1956. A fresh notice of demand was issued on 22 January 1958. The Assistant Custodian again directed recovery. The Custodian General allowed the appellant’s appeal, held that the amended Section 48 applied to the fresh proceedings, and remanded the matter to determine the date of migration, whether the amount was due on that date, and whether the transaction was a loan or a deposit. After remand, further evidence was taken and it was held that the amount was a deposit and was still recoverable when the property vested in the Custodian. The appellant’s appeal to the Custodian General was dismissed on 6 February 1961, and special leave was granted by the Supreme Court. The Supreme Court considered two issues: whether the amended Section 48 applied to the present case, and whether the Custodian’s claim was barred by limitation if the transaction was a deposit. The appellant argued that sub-section (1) of Section 48 only covered sums payable in respect of evacuee property, not the evacuee property itself, and that the Custodian could only proceed under Section 9 for recovery of property. The respondent argued that the amended Section 48 was procedural and applied retrospectively, that the property vested was an actionable claim, and that limitation for a deposit began only from demand. The Court held that sub-sections (1) and (2) of the amended Section 48 were clearly procedural and applied to all proceedings initiated after 22 October 1956, even if the underlying claim arose earlier. Since the notice was issued on 22 January 1958, the recovery could be dealt with under the amended Section 48. The Court rejected the appellant’s argument that Section 9 was the only remedy, explaining that Section 9 deals with physical seizure of immovable property or specific movable property, while the property vested in the Custodian was an actionable claim—a right to recover the sum from the appellant. Such an actionable claim was recoverable under Section 48 read with Section 10(2)(i). On limitation, the Court found that the amount was a deposit, and for a deposit, limitation runs from the date of demand. There was no evidence of any demand by the sister before her migration. Therefore, the period of limitation had not begun, and the right to recover the amount vested in the Custodian unbarred. Accordingly, the appeal was dismissed, and the appellant was held liable to pay Rs 85,000 to the Custodian under Section 48 of the Act as amended.
Headnote
A) Civil Procedure - Retrospective Application of Procedural Amendments - Procedural amendments apply to all proceedings after their commencement even if the underlying claim arose earlier - Administration of Evacuee Property Act, 1950, Section 48(1) and (2) - The question was whether the amended Section 48, inserted by Act 91 of 1956 on 22.10.1956, applied to a notice issued on 22.01.1958 for a claim that arose before the amendment. The court reasoned that sub-sections (1) and (2) were purely procedural, and procedural amendments operate retrospectively unless a contrary intention appears. Held that the amended Section 48 applied to the recovery proceedings initiated by the Assistant Custodian (Paras not mentioned). B) Evacuee Property - Nature of Property Vested and Modes of Recovery - Actionable claim is incorporeal evacuee property recoverable under Section 48, not Section 9 - Administration of Evacuee Property Act, 1950, Sections 9, 10(2)(i), 48 - The dispute concerned whether the Custodian could recover the deposited sum as property under Section 9 or as a sum payable under Section 48. The court held that Section 9 governs physical seizure of immovable property or specific movable property, while actionable claims are recoverable under Section 48 read with Section 10(2)(i). Held that the Custodian could proceed under Section 48 for the amount payable in respect of the actionable claim (Paras not mentioned). C) Limitation - Commencement of Limitation for Deposits - For a deposit, limitation runs from demand, not from date of deposit; no demand before migration meant claim not barred - Limitation Act, 1908, Article 60 - The appellant contended the amount was a loan barred in January 1949; the authorities found it was a deposit. The court applied the principle that limitation for a deposit begins at the earliest from the date of demand for return. As no demand was made before the appellant’s sister migrated to Pakistan, the period of limitation had not begun, and the right to recover vested in the Custodian unbarred. Held that the claim was not time-barred and the amount was recoverable (Paras not mentioned).
Issue of Consideration
Whether the amended Section 48 of the Administration of Evacuee Property Act, 1950 applied to proceedings initiated after the amendment for a claim that arose before the amendment; and whether the Custodian's claim to recover Rs 85,000 from the appellant was barred by limitation on the basis that the transaction was a deposit.
Final Decision
Appeal dismissed. The appellant was held liable to pay Rs 85,000 to the Custodian under Section 48 of the Administration of Evacuee Property Act, 1950, as amended. The amended Section 48 applied retrospectively as a procedural provision, and the claim was not barred by limitation because the amount was a deposit and no demand had been made before the evacuee migrated to Pakistan.
Law Points
- procedural amendments apply retrospectively
- Section 48(1) and (2) of Administration of Evacuee Property Act
- 1950 are procedural
- actionable claim is incorporeal evacuee property recoverable under Section 48 read with Section 10(2)(i)
- Section 9 applies to physical seizure of specific property
- limitation for deposit runs from date of demand
- Article 60 of Limitation Act
- 1908
