Evacuee property notice validity and intestate succession under Mohammedan law determine vesting and will invalidity

A prior declaration of evacuee status after due notice made a fresh Section 7 notice unnecessary for the same property; the notices were otherwise substantially valid, though assets not adequately identified could not vest in the Custodian. The Court also held that no legally sanctioned custom displaced Mohammedan law in the Hyderabad context, so the deceased lacked competence to dispose of the property by will and the estate devolved on intestate succession. Findings that identified properties were benami or belonged to the deceased were upheld, but the separately described firm assets outside the notification could not be sustained.

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Issues: (i) Whether the notices issued under the evacuee property law were invalid for non-service on all interested persons and for insufficient description of the property; (ii) Whether the deceased was competent to make a will governing succession to his properties; (iii) Whether the remaining challenged properties vested in the Custodian.

Issue (i): Whether the notices issued under the evacuee property law were invalid for non-service on all interested persons and for insufficient description of the property.

Analysis: The notice under Section 7 was intended to enable a person treated as an evacuee to contest that character and also to enable persons not migrated to assert that the property did not belong to an evacuee. Once a person had already been declared an evacuee after due notice, a further notice under Section 7 was unnecessary. The notices to the widow and the firm were treated as sufficient, and the absence of separate notice to other persons did not vitiate the proceedings. As to description, most items were adequately identified, but the reference to the assets of another firm was found to be too vague and unsupported by the notification or the will.

Conclusion: The notices were substantially valid, except that no part of the assets of the firm not specifically identified could vest in the Custodian.

Issue (ii): Whether the deceased was competent to make a will governing succession to his properties.

Analysis: The claim that the deceased Khoja was governed by Hindu law was rejected for the Hyderabad context. The Court held that a custom contrary to Mohammedan law could not be proved in the absence of legal sanction, and that the deceased was therefore governed by Mohammedan law. On that basis, he was incompetent to dispose of the property by will, with the result that the estate devolved on his heirs as on intestacy.

Conclusion: The will was invalid and the estate devolved on the heirs by intestate succession.

Issue (iii): Whether the remaining challenged properties vested in the Custodian.

Analysis: Findings that certain properties were benami, that the Market Street property belonged to the deceased, that the alleged oral dedication of the lands was not proved, and that the Rockland property belonged to the deceased were upheld. The share in the assets of the firm in which the deceased had a one-third interest was also held to vest. However, the notification did not cover the assets of one separate firm, and that item could not be sustained.

Conclusion: The Custodian's claim succeeded in respect of the identified properties, but failed in respect of the separately identified firm assets.

Final Conclusion: The appeal failed in substance and was dismissed, with only a limited exclusion made in respect of the inadequately described firm assets.

Ratio Decidendi: A person already declared an evacuee after due notice need not receive a fresh notice under Section 7 for the same property, and a custom inconsistent with Mohammedan law cannot be relied upon to defeat intestate succession in the Hyderabad context absent legal sanction.

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