VAMAN PRABHU MAHAMBREversusMARIA ALCINA DE MENEZES E GONSALVES AND ORS.

A                      VAMAN PRABHU MAHAMBRE
                                 v.
        MARIA ALCINA DE MENEZES E GONSALVES AND ORS.

                               OCTOBER 18, 1994

B                   [K. RAMASWAMY AND S.C. SEN, JJ.]

          Evacuee property : Goa, Daman, Diu Administration of Evacuee
    Property Act, 1964:

C         Sections 2(c), 8(2)(i), 16 and 37-Property mortgaged and mortgagor
    leaving the cowttry-Declared evacuee property-Legal Representatives filing
    suit for recovery of debt-Civil Cowt decreeing the suit~onfinned in ap-
    peal-Held mortgagees entitled to proceed against the property for recovery of
    debt due and the decree valid.

D         The husband of the first respondent hypothecated his house with a
    plot of land in favour of C and his wife in the year 1954. He then migrated
    to Portugal. His property was declared to be evacuee property under the
    Goa, Daman & Diu Administration of Evacuee Property Act, 1964. The
    said property was put to sale at a public auction and the appellant
E   purchased it. Respondents, legal representative of the mortgagee, tiled a
    suit for recovery of debt from the evacuee with a charge on the hypotheca.
    The trial Court decreed the suit and on appeal the Judicial Commissioner
    confirmed the same.

           In appeal to this Court, appellant contended that by conjoint
F   operation of Sections 8(2) (8) and 37 of the Act, the Civil Court had been
    divested of the jurisdiction to grant the decree, and that the mortgagees
    could have proceeded against the custodian of the evacuee property.

          Dismissing the appeal, this Court

G         HELD : 1. Section 16 of the Goa, Daman & Diu Administration of
    Evacuee Property Act, 1964 gives only over-riding effect over any other law
    so long as as the evacuee property remains so vested in the Custodian of
    the evacuee property and no court or any other proceedings in any manner
    shall and whatsoever either in execution of any decree or order of any court
H   or authority, and sny attachment or injunction or order not be effective so
                                         472
   V.P. MAHAMBRE v. MARIA ALCINA DE MENEZES E GONSALVES 473

long as the property remains vested in the Custodian. [475-A-B]                A
        Raja Bhanupratap Singh v.Assistant Custodian Evacuee Property, U.P.,
[1966] 1 SCR 304 at 308A, relied on.

      2. No doubt the mortgagees have a right to lay claim before the
custodian of the evacuee property by proviso to s.8(2) (i). But that would     B
be so long as the property remained vested in the Custodian and was under
his possession and its administration. In the instant case, the property has
already been sold to the appellant and he was given possession of the
property on October 14, 1969, the date on which the property stood
registered. Thereby, the Custodian has been divested of the administration     C
of evacuee property by conferment of title on the appellant through the
sale conducted by him. [475-G-H]

      3. Under s.56 of the Transfer of Property Act, the mortgage debt is .
charge on the property and, therefore, the charge remains subsisting on
the property so long as it has not been duly discharged. Admittedly, the D
suit is within limitation and, therefore, the mortgagees-resJiondents are
entitled to proceed against the property for the recovery of the debt due.
                                                            [475-H, 476-A]
        CIVIL 'APPELLATE JURISDICfiON : Civil Appeal No. 2666 of
1977.                                                                          E
    From the Judgment and Order dated 27.7.76 of the Judicial
Commissioner's Court of Goa in F.C.A. No. 13 of 1972.
                                                '
     Dhruv Mehta, S.K. Mehta, Aman Vachher and K.R. Nagaraja for the
Appellant.                                                                     F
     V.J. Francis, A. Subramanian and Ms. Subhashini (NP) for the
Respondents.

        The following Order of the Court was delivered :
                                                                               G
     The appeal by special leave arises from the judgment of the Judicial
Commissioner, Goa, Daman & Diu in First Civil Appeal No. 13 of 1972
dated July 27, 1976. The facts are as under :

  _ Shri Timteo Gonsalves, the husband of the fust respondent, was the
owner of the property. He, on October 23, 1954, hypothecated his house         H·
    474                    SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A with a plot of land situated in Ribander in Goa in favour of Fernando D. ,
    Aiala e Costa and his wife Maria Ema for a sum of Rs. 12,500. He migrated
    to Portugal. As a consequence his property was declared to be the evacuee
    property on December 22, 1966 under the Goa, Daman & Diu Administra-
    tion of Evacuee Property Act 1964. Act No. 6/64 (for short the 'Act'), which
    came into force w.e.f. December 24, 1964. The property was put to sale at
B   a public auction and the appellant had purchased it on February 27, 1968
    and a sale certificate was given and was registered on October 14, 1969.
    The respondent Nos. 1-6 are the legal representatives of the mortgagee.
    They laid the suit on October 31, 1969 for the recovery of the debt from
    the evacuee with a charge on the hypotheca. The trial Court decreed the
C   suit on March 1, 1972 which was confirmed by the Judicial Commissioner
    under the impugned judgment.

          The learned counsel for the appellant has strenuously contended that
    by declaration of the evacuee property under s.2(c) of the Act, by conjoint
D   operation of ss.3 and s.8(2(i) and 37 of the Act, the Civil Court has been
    divested of the jurisdiction to grant the decree. The mortgagees-respon-
    dents have only the remedy to proceed before the Custodian of the evacuee
    property by operation of the proviso to s.8(2)(i) of the Act, since s.3 has
    given over-riding effect over any other law including the Transfer of
    Property Act. The jurisdiction of the civil court has been thus divested by
E   operation of s.37. If any right or liability exists against the property, the
    mortgagees only have a right to proceed against the Custodian of the
    evacuee property but not by way of a suit and that, therefore, the courts
    below have committed manifest error of law in granting the decree. Though
    the contention, prima facie, is attractive on deeper probe, we find it difficult
F   to accept the contention. Section 16 of the Act envisages that :-

             "Section 16 - Exemption of evacuee property from process of
             courts, etc. ~ Save as otherwise expressly provided in this Act, no
             evacuee property which has vested or is deemed to have vested in
             the Custodian under the provisions of the Act shall, so long as it
G            remains so vested, be liable to be proceeded against in any manner
             whatsoever in execution of any decree or order of any court or
             authority, and any attachment or injunction or order for the ap~
             pointment of a receiver in respect of any such property subsisting
             on the commencement of this Act, shall cease to have effect on
H            such commencement and shall be deemed to be void.'~
   V.P. MAHAMBRE v. MARIA ALCINA DE MENEZES EGONSALVES 475

Section 16 gives only over-riding effect over any other law so long as the A
evacuee property remains so vested in the Custodian of the evacuee
property and no court or any other proceedings in any manner shall and
whatsoever either in execution of any decree or order of any court of
authority, and any attachment or inj~nction or order shall not be effective
so long as the property remains vested in the Custodian. Section 16 of the B
Central Act, 1951, which is in pari-materia has been interpreted by this
Court in Raja Bhanupratap Singh v. Assistant Custodian Evacuee Property,
U.P., [1966] 1 SCR 304 at 308A, thus:-

        'The second part of the sub-section deals with avoidance of attach-
        ment, or injunction or order for the appointment of a receiver in C
        respect of any evacuee property - subsisting on the date of the
        rommencement of the Act of 1951, and the first part interdicts
        recourse to the evacuee property so long as it remains vested in
        the Custodian, by process of any court or authority for obtaining
        satisfaction of any claim against the property."                    D

       It is true as contended for the appellants that the latter part of the
judgment clearly indicates that the custodian is also duty-bound to dis-
charge the liability attached to the property and that the claimant is entitled
to lay claim before the Custodian. The proviso to s.8(2)(i), brought by way
of an Amendment Act 14/70 with. effect from November 18, 1970 and given E
the proviso retrospective effect from the date of the Act came into force,
gives power and authority to the custodian to discharge the liability at·
tached to the p~operty to the third party. But by the date of the Amend-
ment Act, the mortgagees have already filed the suit for recovery of the
suit amount and the suit was pending and the Custodian stood divested of F
the administration of the evacuee property. The right to pro-ceed against
the property has not been expressly divested by operation of any of the
provisions of the Act. No doubt the mortgagees liave a right to lay claim
before the Custodian of the evacuee property by proviso to s.8(2)(i). But
that would be so long as the property remained vested in the custodian and
was under his possession and its administration. It is seen that the property G
has already been sold to the appellant and the appellant was given posses·
sion of the property on October 14, 1969, the date on which the property
stood registered. Thereby the Custodian has been divested of the ad-
ministration of evacuee property by conferment of title on the appellant
through the sale conducted by him. Under s.56 of the Transfer of Property H
    476                     SUPREME COURT REPORTS [1994J SUPP. 4 S.C.R.

A   Act, the mortgage debt is charge on the pro9erty and, therefore, the charge
    remains subsisting on the property so long as it has not been duly dis-
    charged. Admittedly, the suit is within limitation and, therefore, the
    mortgagees-respondents are entitled to proceed against the property for
    the recovery of the debt due. The decree is of joint and several liability
B   against the appellant and the custodian of evacuee property. Under these
    circumstances, we do not find any illegality in the decree for recovery of
    the amount as decreed by the civil court against the appellant and the suit
    hypothica.

             The appeal is accordingly dismissed, but in the circumstances without
C   costs.

    G.N.                                                       Appeal dismissed.