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THE EVACUEE INTEREST (SEPARATION) ACT, 1951

Title : THE EVACUEE INTEREST (SEPARATION) ACT, 1951

Year : 1951



CHAPTER II

SEPARATION OF EVACUEE INTEREST IN COMPOSITE PROPERTY


4.Power to appoint competent officers.


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.


5.Jurisdiction of competent officers.


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.


6.Notice to submit claims.


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

47.(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.

1*[(3) 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 (27 of 1960).]


7.Submission of claims.


7. Submission of claims. (1) Any person claiming an interest in a composite property may, within sixty days of the date of the issue of the general notice or service of individual notice under section 6, whichever is later, submit to the competent officer a statement of his claim in writing and signed and verified in the prescribed manner.

2* * * * *

(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, 1908 (5 of 1908) and shall include the following particulars, 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 of the 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 advanced or deemed to have been advanced;

(iii) the history of the mortgage debt in so far as it is relevant to the determination 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 the mortgagee as security for, or in lieu of payment of, the mortgage debt;
----------------------------------------------------------------------
1. Ins. by Act 27 of 1960, s. 2 (w.e.f. 15-10-1960).
2. Proviso omitted by s. 3, ibid. (w.e.f. 15-10-1960).

48.(vi) the total amount claimed under the mortgage debt in accordance with the provisions of this Act;

(e) where the claim is made by a mortgagor, the total amount due under the mortgage debt and the particulars necessary to determine the same;

(f) the order of preference in which the claimant desires to have his interest separated 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 sub-section (1), file true copies of all documents in his possession or power on which the claim is based and a list of any other documents
(whether in his possession or power or not) on which he intends to rely as evidence in support of his claim; and the claimant shall, whenever required to do so by the competent officer, produce all the documents of which true copies have been filed and also the documents in his possession or power which have been entered in the list.

(4) No document which should have been but has not been filed in accordance with the requirements of sub-section (3), shall be received at any stage of the proceedings without the leave of the competent officer.


8.Decision by competent officer.


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 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-
sharers 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 (31 of 1950), has determined that the property in question or

49.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.


9.Certain reliefs in respect of mortgaged property of evacuees.


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 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.


10.Separation of the interests of evacuees from those of claimants incomposite property.


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

50

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 and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant 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.


11.Vesting of evacuee interest in the Custodian free from encumbrancesand payments, etc., to be valid discharge from all claims.


11. Vesting of evacuee interest in the Custodian free from encumbrances 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

51.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.


12.Rights of claimants inter se and by other persons against claimantsnot to be affected.


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.
Last updated on May, 2015

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