THE EVACUEE INTEREST (SEPARATION ) ACT, 1951
[Act, No. 64 of 1951]
[31st October, 1951]
An Act to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested and for matters connected therewith.
WHEREAS it is expedient to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested and for matters connected therewith;
AND WHEREAS some of the aforesaid provisions may relate to certain matters in the State List and Parliament is empowered, in pursuance of a Resolution passed under article 249 of the Constitution to make such laws;
BE it therefore enacted by Parliament as follows:-
Section 1. Short title and extent
(1) This Act may be called the Evacuee Interest (Separation) Act, 1951.
(2) It extends to the whole of India except1[the territories which, immediately before the 1st November 1956, were comprised in the States] of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir.
|1. Substituted for "the State" by 4 A.L.O. 1957.|
Section 2. Definitions
In this Act, unless the context otherwise requires,.-
(a) "appellate officer" means an officer appointed as such by the State Government under section 13;
(b) "claim" means the assertion by any person not being an evacuee, of any right, title or interest in any property-
(i) as a co-sharer or partner of an evacuee in the property; or
(ii) as a mortgage of the interest of an evacuee in the property or;
(iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee;
and includes any other interest which such person may have jointly with an evacuee and which is notified in this behalf by the Central Government in the Official Gazette:
(c) "competent officer" means an officer appointed as such by the State Government under section 4;
(d) "composite property" means any property which, or any property in which an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950) and---
(i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person, not being an evacuee; or
(ii) in which the interest of a evacuee is subject to mortgage in any form in favour of a person, not being an evacuee; or
(iii) in which the interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or
(iv) in which an evacuee has such other interest jointly with any other person; not being an evacuee, as may be notified in this behalf by the Central Government, in the Official Gazette;
(e) "evacuee interest", in relation to a composite property ,means the right, title and interest of an evacuee in that property;
(f) "mortgage debt" means any liability in respect of a property due under any form of mortgage (including any usufructuary mortgage or mortgage by conditional sale) whether such liability is payable presently or in future, or under any decree or order of a court or otherwise, or whether ascertained or not, which
(i) in any case where it is incurred by any evacuee, is secured by the mortgage of the interest of the evacuee in the property in favour of a person, not being an evacuee;
(ii) in any case where it is incurred by a person not being an evacuee, is secured by the mortgage of the interest of such person in the property in favour of an evacuee;
but does not include any such liability of an evacuee arising out of any transaction entered into after the 14th day of August, 1947 unless such transaction has been confirmed by the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950);
(g) "prescribed" means prescribed by the rules made under this Act;
(h) "principal money", in relation to a mortgage deed executed by an evacuee, means-----
(i) in the case of a mortgage deed which has not been executed by way of renewal of a prior mortgage deed, the sum of money advanced by way of loan at the time of the execution of the mortgage deed;
(ii) in the case of a mortgage deed which has been executed at any time before the 1st day of January, 1940, by way of renewal of a prior mortgage deed the consideration for which the renewed mortgage deed was executed;
(iii) in the case of a mortgage deed which has been executed at any time after the 1st day of January, 1940, by way of renewal of a prior mortgage deed executed before that date, the sum of money which became due on the 1st day of January, 1940, on account of the money advanced on the prior mortgage deed and interest thereon up to the said date;
(iv) in the case of a mortgage deed which was executed at any time after the 1st day of January, 1940, by way of renewal of a prior mortgage deed which was also executed after that date, the sum of money advanced by way of loan at the time of the execution of the prior mortgage deed;
Explanation.- For the purpose of calculating the principal money in relation to any mortgage deed which has been executed by way of renewal of a prior mortgage deed, any sum of money advanced at the time of such renewal in addition to the sum of money which was due on the prior mortgage deed shall also be taken into account.
(i) all words and expressions used but not defined in this Act and defined in the Administration of Evacuee Property Act, 1950 (XXXI of 1950), shall have the meanings assigned to them in that Act.
Section 3. Act to over-ride other laws
Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.
Section 4. Power to appoint competent officers
(1) The State Government may, with the approval of the Central government, by notification in the Official Gazette, appoint as many competent officers as may be necessary for the purpose of performing the functions assigned to them by or under this Act, and a competent officer may perform his functions in such local area or areas as may be specified in the notification.
(2) No person shall be qualified to be appointed as a competent officer under this Act unless he has held a judicial office for at least five years, or has been an advocate or a pleader for at least seven years.
Section 5. Jurisdiction of competent officers
A competent officer shall have jurisdiction to decide any claim relating to any composite property situate within the limits of the local area of his jurisdiction and such cases or classes of cases as may, by general or special order, be transferred to him under section 19 by the Central Government or the appellate officer.
Section 6. Notice to submit claims
(1) For the purpose of determining or separating the evacuee interest in a composite property, any competent officer having jurisdiction over such property may, either on information received in this behalf from the Custodian or on an application from a claimant, issue, in such form and manner as may be prescribed,--
(a) a general notice requiring all persons who claim interest in such property, and
(b) also a notice on every person who, in the opinion of the competent officer, may have a claim in such property, to submit claims if any, in respect of that property.
(2) An application under sub-section (1) shall be in such form and manner as may be prescribed.
(3)1[No application under this section shall be entertained if filed after the expiry of one year from the commencement of the Evacuee Interest (Separation) Amendment Act.1960]
|1 . Inserted by the Evacuee Interest (Separation) (Amendment) Act, 1960, w.e.f. 03-09-1960.|
Section 7. Submission of claims
(1)Any person claiming an interest, in a composite property may, within sixty daysof the date of the issue of the general notice or service of individual noticeunder section 6, whichever is later, submit to the competent officer a statementof his claim in writing and signed and verified in the prescribed manner:
(2)A statement of claim under sub-section (1) shall be drawn up as far as may be,in the form of pleadings under the Code of Civil Procedure, namely:--
(a)the nature of the interest of the claimant in the composite property;
(b)the estimated money value of the composite property;
(c)where the claim is made by a co-sharer or partner, the extent of the share ofthe claimant and the money value of such share;
(d)where the claim is made by a mortgagee.--
(i)the principal money and the rate of interest chargeable under the mortgage deed;
(ii)payments made towards the mortgage debt after the principal money was advancedor deemed to have been advanced;
(iii)the history of the mortgage debt in so far as it is relevant to thedetermination of the principal money;
(iv)particulars of the property mortgaged and the estimated value of such property;
(v)particulars of any property the possession of which has been taken by themortgaged as security for, or in lieu of payment of, the mortgage debt;
(vi)the total amount claimed under the mortgage debt in accordance with theprovisions of this Act;
(e)where the claim is made by a mortgagor, the total amount due under the mortgagedebt and the particulars necessary to determine the same;
(f)the order of preference in which the claimant desires to have his interestseparated from that of the evacuee under section 10;
(g)any other particulars which may be prescribed.
(3)The claimant shall, along with the submission of claim under sun-section (1),file true copies of all documents in his possession or power on which the claimis based and a list of any other documents (whether in his possession or poweror not) on which he intends to rely as evidence in support of his claim; and theclaimant shall, whenever required to do so by the competent officer, produce allthe documents of which true copies have been filed and also the documents in hispossession or power which have been entered in the list.
(4)No document which should have been but filed in accordance with the requirementsof sub-section (3), shall be received at any stage of the proceedings withoutthe leave of the competent officer.
|1.Words omitted" Provided that the competent officer may entertain the claimafter the expiry of the said period of sixty days if he is satisfied that theclaimant was prevented by sufficient cause from filling the claim in time." bythe Evacuee Interest (Separation) (Amendment) Act, 1960, w.e.f. 03-09-1960.|
Section 8. Decision by Competent Officer
(1) On receipt of a statement of claim under section 7, the competent officer shall, subject to the provisions of sub-sections (2) and (3) hold an inquiry into the claim in accordance with the procedure laid down in section 17 and pass an order determining in the interest of the evacuee and the claimant in the property in question and the order shall contain all or any of the following particulars, namely:--
(a) the money value of the property;
(b) in any case where the evacuee and the claimant are co-shares or partners, their respective shares in the property and the money value of such shares;
(c) in any case where the claim is made by a mortgagor the amount due to the evacuee;
(d) in any case where the claim is made by a mortgagee, the amount due under the claim in accordance with the provisions of section 9.
(2) Where the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950), had determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the competent officer:
Provided that nothing contained in this sub-section shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10.
(3) If there is any dispute as to whether a liability is a mortgage debt or not or whether any claim submitted under section 7 exists, the competent officer shall decide such dispute:
Provided that a decree of a civil court (other than an ex parte decree passed after the 14th day of August 1947) shall subject to the provisions of sections 9 and 10, be binding on the competent officer in respect of any matter which has been finally decided by such decree; and where any matter was decided by an ex parte decree passed by a civil court after the 14th day of August, 1947,the competent officer may decide such matter afresh and on such decision being made, the ex parte decree shall be deemed to have no effect.
Section 9. Certain reliefs in respect of mortgaged property of evacuees
(1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of sub- section (2), be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced.
(2) Where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have taken effect as a complete usufructuary mortgage and shall be deemed to have been extinguished on the expiry of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed; and if the aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proportion which the unexpired portion of that period bears to the total of that period.
Section 10. Separation of the interests of evacuees from those of claimants in composite property
Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority the competent officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interests of the evacuees from those of the claimants in any composite property, and in particular may:--
(a) in the case of any claim of a co-sharer or partner.--
(i) direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a civil court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the civil court, or
(ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or
(iii) sell the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or
(iv) partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respectively;
(b) in the case of any claim of a mortgagor or a mortgagee,--
(i) pay to the Custodian or the claimant the amount payable under the mortgage debt and redeem the mortgaged property; or
(ii) sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof; or
(iii) partition the property between the mortgagor and the mortgagee having regard to the share to which the mortgagee would be entitled in lieu of his claim;
(c) adopt a combination of all or some of the aforesaid measures:
Provided that before taking any measure under this section, the competent officer shall take into account the order of preference filed by the claimant under clause (f) of sub-section (2) of section 7; and in any case where the claimant is a mortgagor and tenders the amount due, the competent officer shall accept the same in full satisfaction of the mortgage debt.
Section 11. Vesting of evacuee interest in the Custodian free from encumberances and payments, etc., to be valid discharge from all claims
(1) Where in respect of any property, notice under section 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under section 10, the whole property, or, as the case may be, the evacuee interest in the property thus separated shall vest in the Custodian free from all encumbrances and liabilities and any payment, transfer or partition made or effected under section 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property.
(2) The Custodian may take possession of any such property by evicting the claimant and other persons who may be in occupation thereof and may, for that purpose, use or cause to be used such force as may be necessary:
Provided that the Custodian shall not disturb the possession of any person (other than the claimant) who was in lawful possession of the property at the commencement of this Act and has continued in such possession.
Section 12. Rights of claimants inter se and by other persons against claimants not to be affected
Nothing in this Chapter shall prejudice any rights in respect of the property transferred or delivered, or payment made, to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the property is delivered or transferred or the payment is made.