Supreme Court of India
STATE OF RAJASTHAN AND ORS.versusLORD NORTHBOOK AND ORS.
- Citation
- 2019 INSC 969
- Decided
- 28 August 2019
- Disposal
- Matter referred to larger bench
- Bench
- R BANUMATHI
Holding
The Supreme Court held that the State of Rajasthan correctly treated the property as bona vacantia, complied with the Rajasthan Escheats Regulation Act, 1956, and that the High Court erred in quashing the escheat proceedings; the appeal is allowed.
Summary
The testator, Raja Sardar Singh, died in 1987 without apparent legal heirs and had executed a will bequeathing his assets to the Khetri Trust. The Trust sought probate, which was dismissed by the Delhi High Court, while agnates also objected. The Rajasthan Collector, after an inquiry, initiated escheat proceedings under the Rajasthan Escheats Regulation Act, 1956, taking possession of the properties. The Rajasthan High Court later quashed the communications/orders initiating those proceedings, directing possession to the respondents. The Supreme Court held that the State had properly complied with the Escheats Act, satisfied the "failure of heirs" requirement, and that the High Court erred in interfering with the proceedings, especially when alternative remedies were pending. Consequently, the appeal was allowed, the High Court order set aside, and the matter referred to the Board of Revenue and the Delhi High Court for further determination.
Issues considered
- The validity of initiating escheat proceedings under the Rajasthan Escheats Regulation Act, 1956 when probate and agnate claims were pending.
- Whether the condition of "failure of heirs" and the status of the property as bona vacantia were established before the State took possession.
- Whether the High Court erred in quashing the communications/orders and directing possession to the respondents despite the existence of alternative remedies.
- The applicability of the proviso to Section 4 of the Escheats Act concerning disturbance of possession.
- The scope and ambit of the Rajasthan Escheats Regulation Act, 1956 in relation to Article 296 of the Constitution.
Legislation cited
- Constitution of Indias. Article 226, s. Article 296
- Hindu Succession Act, 1956s. 10, s. 11, s. 12, s. 13, s. 29, s. 30, s. 3(a), s. 3(c), s. 8, s. 9
- Indian Succession Act, 1925s. 195, s. 276
- Rajasthan Escheats Regulation Act, 1956s. 2(4), s. 4, s. 6, s. 7
Subjects
escheatbona vacantiaRajasthan Escheats Regulation ActprobatewillArticle 296failure of heirsArticle 226alternative remedypublic noticepossessiontrustagnatessuccession law
Judgment
844 [2019]
SUPREME COURT 11 S.C.R. 844
REPORTS [2019] 11 S.C.R.
A STATE OF RAJASTHAN AND ORS.
v.
LORD NORTHBOOK AND ORS.
(Civil Appeal No . 6677 of 2019)
B AUGUST 28, 2019
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Rajasthan Escheats Regulation Act, 1956– s.2(4), Proviso to
s.4, ss. 6, 7– Testator died in 1987 without any legal heirs, leaving
valuable properties situated in Khetri, Jhunjhunu, Rajasthan –
C
Before his death, he executed Will bequeathing his properties to a
Trust – Trustees filed probate petition before the Delhi High Court
for probate of the Will – Objections filed by the agnates of the
deceased testator – Probate petition dismissed – Appeal pending
before the Division Bench – Direction by the Collector, Jhunjhunu
D to initiate proceedings under the Ecsheats Act in respect of the
properties left – Tehsildar took over possession of the properties –
Writ petition filed by respondents challenging three communications/
orders initiating the proceedings under the Act – Further, the
Collector rejected the claims of the Trust based on Will and also the
claim of the agnates – Appeal of the Trust before the Board of
E Revenue – Order of the Collector stayed, appeal pending –
Thereafter, writ petition allowed – On appeal, held (per Curiam) :
Matter referred to larger bench – Per Banumathi, J. Doctrine of
escheat postulates that where an individual dies intestate and does
not leave behind an heir qualified to succeed to the property, the
F property devolves on the Government – Absence of any heir is pre-
condition for initiation of the proceedings for escheating of the
property to the Government – In the present case, when the agnates/
other persons claiming right in the estate withdrew their objections,
naturally they accepted the claim/right of the Trust, which claims
through the Will – Inference has to be drawn that they have no right
G of claim in the properties– Further, when the appeals were pending
before the Delhi High Court and the Board of Revenue involving
disputed questions, the High Court ought to have directed the parties
to avail efficacious alternative remedy – High Court erred in
quashing the three communications and directing the State to hand
H
844
STATE OF RAJASTHAN AND ORS. 845
v. LORD NORTHBOOK AND ORS
over the possession of the properties to the respondents – Further, A
due procedure was followed as per the Escheats Act – State of
Rajasthan right in treating the property as ‘bona vacantia’ and
initiating proceedings under the Escheats Act – Per Banerjee, J.
(Dissenting) : Doctrine of escheats postulates that where an
individual dies intestate and does not leave behind any heir qualified
B
to succeed to the property, the property devolves on the Government
– An abandoned property is a property for which no claim has
been made for a substantially long period, such as to raise the
presumption that the property is abandoned – In the present case,
there were claimants who objected to the grant of probate – Even
though they withdrew the objections, that would not make any C
difference to their status as agates/cognates of the deceased testator
– Further, judgment dismissing the probate petition is of no
consequence – If a will fails, the property has to be treated as
intestate, devolving upon the natural heirs in accordance with the
applicable laws of succession – Dismissal of the probate case might
D
mean that the Trust cannot lay claim to the properties but, that does
not make the properties escheated properties– Unless there were
complete failure of heirs, the Escheats would not be attracted –
Further, the writ petition filed in 1987 had been pending in the
High Court for about three decades – Once the writ petition had
been entertained and kept pending, it should not be rejected on the E
ground of existence of alternative remedy of appeal before the Board
of Revenue – Communications impugned were issued without any
finding of complete failure of heirs – Constitution of India – Arts.
226, 296 – Hindu Succession Act, 1956 – ss.3(a), (c), 8-13, 29 &
30 – Indian Succession Act, 1925– ss.195, 276 – Doctrines – Will.
F
Constitution of India – Art.226 – Existence of alternative
remedy – Entertainment of writ petition – Testator died in 1987
without any legal heirs, leaving valuable properties situated in
Khetri, Jhunjhunu, Rajasthan – Before his death, he executed Will,
bequeathing his properties to a Trust – Probate petition filed by the
Trustees before the Delhi High Court – Dismissed – Appeal pending G
before the Division Bench – Writ petition filed by the respondents
challenging the taking over possession of the properties by the
Tehsildar – Further, the Collector rejected the claims of the Trust
based on Will and also of the agnates – Appeal pending before the
Board of Revenue – Thereafter, writ petition allowed – Held: Per
H
846 SUPREME COURT REPORTS [2019] 11 S.C.R.
A Banumathi, J. When the appeals were pending before the Delhi High
Court and before the Board of Revenue involving disputed
questions, the High Court ought to have directed the parties to avail
efficacious alternative remedy – Per Banerjee, J. (Dissenting) High
Court, having regard to the facts of the case, has discretion to
entertain or not to entertain a writ petition– Remedy of appeal
B availed by the Trustees was against the order of the Collector passed
in 2016 almost two decades after the writ petition was filed in 1987
– Supervening circumstance of the order of the Collector and the
appeal therefrom, would not justify the dismissal of the writ petition
on the ground of existence of alternative remedy – High Court rightly
C allowed the writ petition.
Rajasthan Escheats Regulation Act, 1956 – Scope and ambit
of – Explained. (Per Banumathi, J.)
Rajasthan Escheats Regulation Act, 1956 – ss.4, 6 –
Compliance of – Discussed. (Per Banumathi, J.)
D Doctrines – Doctrine of escheats – Claim of escheat – Burden
of proof – Held : Doctrine of escheat recognises State as paramount
sovereign, in a clear case of failure of heirs – When a claim of
escheat is put forward by the Government, onus to establish that a
property is bona vacantia is on the Government – Burden of proof is
E heavy. (Per Banerjee, J.)
Constitution of India – Art.296 – Power under – Discussed –
Rajasthan Escheats Regulation Act, 1956. (Per Banerjee, J.)
Words & Expressions – ‘Escheat’, ‘abandoned property’,
‘bona vacantia’ – Meaning and usage of – Discussed. (Per
F Banerjee, J.)
Directing the matter to be placed before Hon’ble the Chief
Justice of India for referring the matter to the Larger Bench, the
Court
HELD: PER R. BANUMATHI, J.:
G
1.1 Escheat is a bona vacantia and can be exercised only in
case of abandoned property:- Article 296 is the constitutional
provision enabling vesting of the property with the State
Government if a person dies intestate and without any heir
qualified to succeed to his or her property. Section 29 of the Hindu
H
STATE OF RAJASTHAN AND ORS. 847
v. LORD NORTHBOOK AND ORS
Succession Act, 1956 embodies the principle of escheat. The A
doctrine of escheat postulates that where an individual dies
intestate and does not leave behind an heir who is qualified to
succeed to the property, the property devolves on the
Government. Section 29 of the Hindu Succession Act comes into
operation only on there being a failure of heirs. The word ‘failure’ B
used in Section 29 makes it clear that there must be a total
absence of any heir to the person dying intestate. The absence of
any heir is a pre-condition for initiation of the proceedings for
escheating of the property to the Government. The provisions
of the Rajasthan Escheats Regulation Act, 1956 will be applicable
only when the person dies intestate and/or is not succeeded by C
any of the person under Section 8 of the Hindu Succession Act or
other succession laws. [Paras 19, 20 and 27][869-H; 870-A,
C-D; 874-E-F]
1.2 Once the decision of the High Court of Delhi in the
probate case has gone against the Trust, the Trust has no D
semblance of right, title and interest in the property, unless the
Trust succeeds in the pending testamentary appeal, the Trust
has no right to lay claim in the properties under escheat. The
Trust having no right in the property, appears to have now taken
up the cause of agnates, which the High Court did not keep in E
view. Once the decision in the probate case had gone against
them, unless they succeed in the appeal, Khetri Trust has no
semblance of right to lay a claim over the properties. [Paras 32,
33][876-E-F; 877-A]
1.3 As observed by the District Collector, there were F
number of objectors to the grant of probate in favour of Khetri
Trust and all of them have gradually withdrawn their objections
and the conduct of the agnates raises suspicion on their bonafide.
When the agnates/other persons claiming right in the estate have
withdrawn their objections, naturally the inference is that they
G
have accepted the claim/right of Khetri Trust, which claims
through the Will. An inference has to be drawn against the persons
that they have no right of claim in the properties. The so called
agnates or cognates cannot adopt double stand i.e. one claiming
right in themselves and another allowing Khetri Trust to claim
H
848 SUPREME COURT REPORTS [2019] 11 S.C.R.
A through the Will. The respondents no.8 and 9 and respondent
No.6 have not produced any document showing their status as
agnates nor initiated any proceeding for declaration of their status.
There is no merit in the contention of the respondents that there
was no enquiry and satisfaction of the authorities as to “failure of
B heirs” before initiating proceedings under the Escheats Act. The
Sub-Divisional Officer, Khetri has sent a report dated 16.02.1987
to the District Collector, Jhunjhunu that the deceased expired in
Mumbai on 28.01.1987 without any legal heir and that he has
executed one Will by virtue of which Khetri trust was constituted.
The SDO’s report also states about the absence of brother or
C sister or any child or other legal heirs. [Paras 35-37][878-C-E,
G-H; 879-A]
1.4 There is no merit in the contention of the respondents
that the initiation of the proceedings under the Escheats Act was
done without following the procedure laid down by the law and
D without enquiry and the finding as to “failure of heirs”. The report
of the SDO dated 16.02.1987 and the letter of the District
Collector, Jhunjhunu dated 15.06.1987 addressed to the
Government of Rajasthan shows that in compliance of the
provisions of the Escheats Act, an enquiry was conducted and
E the authorities satisfied themselves as to “failure of heirs” before
initiating action under Escheats Act. The materials on record
show that the proceedings under the provisions of Escheats Act
has been initiated only after making proper enquiry about possible
legal heirs of the deceased and on finding about the absence of
legal heirs, the authorities satisfied themselves that the properties
F are bona vacantia. Due procedure was followed by the concerned
officials as per the Escheats Act following the provisions of Section
4 of the Escheats Act and only after ascertaining that there was
“failure of heirs”, the inventories of the properties were prepared
and possession was taken over on all the vacant properties and
G mangers were appointed for the requisite purposes. Deceased
died way back in the year 1987. Till this date, the agnates have
not instituted any suit or proceedings to establish their status
nor obtained any declaration from the competent authorities. In
the absence of any document declaring status of respondents No.4
H
STATE OF RAJASTHAN AND ORS. 849
v. LORD NORTHBOOK AND ORS
to 8 as cognates/agnates of the deceased, State of Rajasthan A
cannot be faulted for initiating action under the Escheats Act,
1956 treating the properties of the deceased as lawaris for want
of heir or successor or as bona vacantia. Moreover, it is not the
case of the respondents No.4 to 8 that they represent all the
agnates. No claimant came forward before the Tehsildar; only
B
the person who claimed as Manager of the Khetri Trust appeared
before the Tehsildar. Considering the facts and circumstances of
the case, initiation of proceedings under the Escheats Act cannot
be said to be erroneous warranting interference. [Paras 38,
39][879-H; 880-A-F]
1.5 In Re: Compliance of the provisions of the Rajasthan C
Escheats Regulation Act, 1956:- The provisions of the Rajasthan
Escheats Act, 1956 regulate the procedure for initiation of
proceedings and making of enquiries in the matter of lawaris
properties vesting in the State of Rajasthan qua ultima heres under
Article 296 of the Constitution of India by escheat or as bona D
vacantia. The Act applies to the properties vesting in the State.
Section 2(4) of the Rajasthan Escheats Regulation Act, 1956
defines “property to which this Act applies”. The Rajasthan
Escheats Regulation Act is a complete Code in itself. The
preamble sets out the scope and ambit of the statute. The Act
being a comprehensive legislation sets out the entire scheme E
relating to the constitutional power under Article 296 and provides
for:- a) the making of enquiries; b) for custody and disposal; and
c) properties vesting in the State under Article 296 of the
Constitution. The scope of the Act is to:- a) determine the rightful
owner and to restore the property in his/her favour; b) secure F
and safeguard the property pending under such enquiry; c)
adjudicate upon the contesting claims prima facie, at the same
time enabling the properties to avail remedies of Civil courts;
and finally d) pass orders of vesting after giving opportunities to
everybody and after holding a detailed enquiry. Considering the
scheme of the Act, in particular, Section 4, provides that when G
the Tehsildar receives information as to the existence within
Tehsil of any property to which this Act applies, whether or not in
the possession of any person. the Tehsildar shall – a. ascertain
H
850 SUPREME COURT REPORTS [2019] 11 S.C.R.
A whether or not there is any person entitled to such property; b.
prepare an inventory thereof showing the prescribed particulars;
c. take over possession of it in the prescribed manner; and d.
make a report of the Collector. As per the proviso to Section 4 of
the Act, if the property is in the ‘present possession of any person’,
such possession shall not be disturbed. [Paras 40-42][880-G-H;
B
881-A, C-H; 882-A]
1.6 The provisions of Section 4 of the Rajasthan Escheats
Regulation Act have been substantially complied with. The letter
dated 03.07.1987 from Dy. Secretary to District Collector,
Jhunjhunu to initiate proceedings under the Act was in reference
C to the letter dated 15.06.1987 sent by the District Collector,
Jhunjhunu to the Dy. Secretary by which the District Collector
had apprised about the factual position of the investigation
conducted by it in view of the procedure laid down under Section
4 of the Act. By letter dated 22.07.1987, the Tehsildar Khetri
D was directed to initiate proceedings under the Rajasthan Escheats
Act with respect to properties situated in Khetri and also to collect
details of properties situated outside the State of Rajasthan. By
attachment order dated 03.08.1987, immovable properties i.e.
agricultural lands and orchards in village Hada Fatehpura was
taken over. It is clear that in accordance with provisions of the
E Act, the concerned officials first made inquiry to ascertain whether
there was any legal heir of the deceased; issued notices and then
prepared the inventories and after the spot inspection, attached
the properties and taken over the possession of the vacant
properties and submitted report to the Collector. The provisions
F of the Escheats Act, 1956 has been substantially complied with.
[Paras 44, 45][882-E-F; 883-D-E]
1.7 When the appeals were pending before the Delhi High
Court and before the Board of Revenue involving disputed
questions, the High Court ought to have directed the parties to
G avail efficacious alternative remedy. The High Court ignoring the
subsequent events that the respondents-agnates have withdrawn
their objections in the probate petition and dismissal of the
probate petition and the appeals pending before the Delhi High
Court and appeal pending before the Board of Revenue erred in
quashing the three communications/orders and directing the State
H
STATE OF RAJASTHAN AND ORS. 851
v. LORD NORTHBOOK AND ORS
to hand over the possession of the properties to the respondents. A
Under Article 226 of the Constitution of India, the High Court
having regard to the facts of the case has a discretion to entertain
or not to entertain a writ petition. But the High Court has imposed
upon itself certain restrictions; one of which is an effective and
efficacious remedy available. When efficacious alternative remedy
B
is available, the High Court would not normally exercise the
jurisdiction. However, alternative remedy will not be a bar at least
in three instances:- (i) where writ petition is filed for enforcement
of any of the fundamental rights; (ii) where there is a violation of
the fundamental right or principles of natural justice; and (iii)
where the orders or proceedings are wholly without jurisdiction C
or the vires of an Act is challenged; [vide Harbanslal Sahnia and
Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107.
Notwithstanding the availability of alternative remedy, having
regard to the facts of the case, the High Court has a discretion to
entertain or not to entertain a writ petition. But in the present
D
case, while considering correctness of the communications/orders
issued way back in 1987, the High Court should have taken into
consideration the subsequent events viz., the judgment passed
by the High Court of Delhi in Testamentary Case and the order
passed by the District Collector under Section 6 of the Act and
the pendency of appeals before the High Court and Board of E
Revenue. Challenge to the initiation of the proceedings under
the Rajasthan Escheats Regulation Act, 1956 is already a subject
matter of appeal before the Board of Revenue. Based on the
Will, whether the Trust has a right to claim the properties of the
deceased is also a subject matter of appeal before the Delhi High
F
Court. While so, exercising jurisdiction under Article 226 of the
Constitution of India, the High Court ought not to have gone
into the correctness of three notices issued on 03.07.1987,
22.07.1987 and 03.08.1987 which themselves culminated into
various final orders. The impugned order takes away the very
foundation of the order passed by the District Collector which is G
subject matter of the appeal pending before the Board of Revenue.
There are serious disputed questions of facts especially whether
there was contravention of Proviso to Section 4 and in such view
of the matter, the High Court ought not to have gone into the
correctness of three communications/orders dated 03.07.1987,
H
852 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 22.07.1987 and 03.08.1987. The High Court ought to have
directed the parties to work out the remedy before the competent
court/authority. [Paras 50-52][885-G-H; 886-A-H; 887-AB]
1.9. Conclusion:- (i) Since the Testamentary Case No.26 of
1987 then pending before the High Court of Delhi for grant of
B probate of the Will, has been dismissed and the testamentary
appeal is pending before the High Court, there is no rightful owner
as per the Will. (ii) Having withdrawn their objections in the
probate proceedings, respondent Nos.5 to 9 are estopped from
making any claim in the properties of the deceased till they
establish their right in a court of law. (iii) The provisions of the
C Escheats Act, 1956 was initiated only after enquiring about the
legal heirs of the deceased and before initiation of proceedings
under the Escheats Act, the authorities satisfied itself as to
“failure of heirs” of the deceased and that the properties are
bona vacantia. (iv) The persons claiming as agnates have not
D established their status in a court of law recognising them as
rightful owners. (v) There was issuance of public notice and also
to private individuals, before the State of Rajasthan took over
the estate of the deceased by escheat. The provisions of the
Rajasthan Escheats Regulation Act, 1956 have been substantially
complied with. (vi) The State of Rajasthan was right in treating
E the property as ‘bona vacantia’ and right in initiating the
proceedings under the Rajasthan Escheats Regulation Act, 1956.
(vii) Challenge to the initiation of the proceedings under the
Rajasthan Escheats Regulation Act, 1956 is already a subject
matter of appeal before the Board of Revenue. Based on the
F Will, whether the Trust has a right to claim the properties of the
deceased is also a subject matter of appeal before the Delhi High
Court. While so, exercising jurisdiction under Article 226 of the
Constitution of India, the High Court ought not to have gone
into the correctness of three notices issued on 03.07.1987,
22.07.1987 and 03.08.1987 which themselves culminated into
G various final orders. (viii) There are serious disputed questions
of facts especially whether there was contravention of Proviso to
Section 4 and in such view of the matter, the High Court ought
not to have gone into the correctness of three communications/
H
STATE OF RAJASTHAN AND ORS. 853
v. LORD NORTHBOOK AND ORS
orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The A
impugned order of the High Court in Writ Petition No.2713 of
1987 is set aside with the following directions and observations:-
(i) The questions whether the Trust was in present
possession of the Khetri House and other properties and that it
ought not to have been disturbed in terms of proviso to Section 4 B
of the Act, have to be examined and determined by the Board of
Revenue before whom the appeal against the order of the District
Collector is pending;
(ii) The question whether there is contravention of proviso
to Section 4 of the Act, has to be determined by the Board of C
Revenue in the appeal pending before the Board of Revenue.
The further question whether there was due compliance of Section
6 of the Act is also to be examined by the Board of Revenue?
Whether Khetri Trust has a right to claim the properties of
the deceased based on the Will dated 30.10.1985, is a subject D
matter of appeal before the Delhi High Court. It is made clear
that this judgment and also the conclusion of the Board of
Revenue will, however, be subject to the decision of the Delhi
High Court in Testamentary Appeal pending before the Delhi
High Court. [Paras 53, 54][887-C-H; 888-A-H]
E
Bombay Dyeing and Manufacturing Co., Ltd. v. State
of Bombay and Others AIR 1958 SC 328 : [1958] SCR
1122; State of Bihar v. Radha Krishna Singh and Others
(1983) 3 SCC 118 : [1983] 2 SCR 808; Kutchi Lal
Rameshwar Ashram Trust Evam Anna Kshetra Trust
F
Through Velji Devshi Patel v. Collector, Haridwar and
Others (2017) 16 SCC 418 : [2017] 9 SCR 766; State
of Punjab v. Balwant Singh and Others 1992 Supp. (3)
SCC 108 : [1991] 1 Suppl. SCR 458; Peirce Leslie
and Co. Ltd. v. Violet Ouchterlong Wapshare AIR 1969
SC 843 : [1969] 3 SCR 203; State of Bihar v. Radha G
Krishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR
808; Harbanslal Sahnia and Another v. Indian Oil
Corpn. Ltd. and Others (2003) 2 SCC 107 – referred
to.
H
854 SUPREME COURT REPORTS [2019] 11 S.C.R.
A PER INDIRA BANERJEE, J. (DISSENTING):
HELD: 1.1 The Escheats Act as per the preamble of the
said Act, is an Act to regulate the making of enquiries in the
matter of properties vesting in the State of Rajasthan qua ultima
heres under Article 296 of the Constitution of India or escheats
B or as bona vacantia and provides for custody and disposal thereof.
A perusal of the Preamble makes it amply clear that the Escheats
Act applies only to properties vesting in the State qua ultima
heres under Article 296 of the Constitution of India as bona
vacantia. The vesting of property in the State as bona vacantia
under Section 296 for failure of heirs, is sine qua non for the
C applicability of the Escheats Act and statutorily prescribed
jurisdictional requirement for Section 4 read with Section 2(4) of
the said Act. Section 2(4) of the Escheats Act defines “property
to which this Act applies” to mean any property vesting in the
State qua ultima heres under Article 296 of the Constitution of
D India by escheats or as bona vacantia. [Paras 16-19] [891-G-H;
892-A-B]
1.2 Section 2(4) refers to property vesting in the State and
not to property which might vest in the State at a future point of
time. Section 4(1) of the Escheats Act provides: Initiation of
E proceedings under the Escheats Act is subject to determination,
at least prima facie, of the jurisdictional fact that the properties
in question had acquired the character of “abandoned property”.
The expression “escheat” or “bona vacantia” has not been
defined in the Escheats Act. However, the Escheats Act having
been enacted in terms of Article 296 of the Constitution, the
F expressions are to be understood in the sense in which they have
been used in Article 296 of the Constitution. Article 296 does
not leave any discretion for determination of what might constitute
escheat or bona vacantia. Article 296 makes it clear that the
principles applicable in this regard, prior to commencement of
G the Constitution of India, would continue. [Paras 20-22][892-C,
G-H; 893-A, E]
1.3 Law relating to bona vacantia provides for conservation
of abandoned properties. The nature of the property to which the
Escheats Act applies must necessarily be abandoned property in
H the sense that there should be no claimants to the property.
STATE OF RAJASTHAN AND ORS. 855
v. LORD NORTHBOOK AND ORS
Property is subject to the right of escheat, where upon intestacy, A
there is no heir. Escheat was a right, whereby land of which there
was no longer any tenant, returned by reason of tenure, to the
lord by whom, or by whose predecessors in title, the tenure was
created. The doctrine of escheats postulates that where an
individual dies intestate and does not leave behind any heir, who
B
is qualified to succeed to the property, the property devolves on
the Government. An abandoned property is a property for which
no claim has been made for a substantially long period. The length
of the period for which no claim is made, should be such as to
raise the presumption that the property is abandoned. [Paras 23,
25, 28 and 29][893-E-F; 894-A, D-E] C
1.4 If during an enquiry to ascertain whether property was
abandoned or not, any claim was made, the proceedings had to
be dropped. If no claims are made or if the State arrives at the
opinion that all claims to the property are mala fide, only then
may it apply to the Court for final determination as to the nature D
of the property, and thereafter initiate escheat proceedings. In
the proceedings before the Court, the Court would necessarily
have to arrive at a finding that the property had been abandoned
and that there were no heirs who could come forward to claim
the properties. There would have to be total and absolute failure E
of heirs. The Single Bench of Delhi High Court had dismissed
Testamentary Case No. 26 of 1987 on 3.7.2012 holding that the
executors of the will had not been able to prove the Will dated
30.10.1985 and the codicil dated 7.11.1985. The judgment and
order dated 3.7.2012 dismissing Testamentary Case no. 26/1987 F
is of no consequence. It is well settled that if a will fails, the
property has to be treated as intestate, which devolves upon the
natural heirs in accordance with the applicable laws of succession.
The dismissal of the probate case might mean that the Trust cannot
lay claim to the properties. However, that does not make the
G
properties escheated properties. If, upon enquiry under Section
6 of the Escheats Act, the Collector finds that the property in
question is not of the nature to which the Escheats Act applies,
he is obliged to order the proceedings to be closed and the
property to be allowed to remain with the person in whose
H
856 SUPREME COURT REPORTS [2019] 11 S.C.R.
A possession it might then be, or if possession thereof has been
taken under Section 4(c) or Section 6, the Collector is obliged to
restore the property to the person from whom possession was
so taken, as mandated by Section 6 (9)a) of the Escheats Act. It
is true that the respondent trustees filed the writ petition basing
B its claim on the Will. The locus standi of the writ petitioners was
never in issue. By entertaining the writ petition the High Court,
in effect, accepted that the respondent trustees of the Trust had
locus standi to file the writ petition, and rightly so. The writ petition
filed by the Trustees having been entertained and kept pending,
C the High Court would not have been justified in dismissing it on
the ground that the Trust had no right to lay claim in the properties
in question, in view of dismissal of the probate case, more so,
when the appeal filed by the Trustees is still pending. The High
Court was right in not dismissing the writ petition. The fact that
the High Court had earlier, on the prayer of the Trustees,
D
adjourned the writ petition sine die, to await the decision in the
Probate application, did not debar the High Court from exercising
its writ jurisdiction after disposal of the Probate case. Even though
the Probate case has gone against the trustees, the appeal was
and is still pending before the Division Bench. It is true that the
E Khetri Trust can claim right over the property in terms of the
will, only if it succeeds in the appeal pending in Delhi High Court.
This, did not denude the trustees of the locus standi to pursue
the writ petition challenging the initiation of proceedings under
the Escheats Act. The threshold requirements laid down by
F Supreme Court upon interpretation of Article 296 are the
conditions precedent for initiation of proceedings under the
Escheats Act. The authorities would have to be satisfied that the
properties had been abandoned and that there were no known
claimants to the said properties The purpose of the legislation is
G to conserve abandoned property and safeguard the property for
the benefit of the rightful claimant who may come later. [Paras
31-33, 36-42 and 44][894-G; 895-A-B, E-H; 896-A-E]
1.5 It is not necessary for this Court to consider the
correctness of the judgment and order of the Delhi High Court
H in the probate proceedings, since the appeal therefrom is
STATE OF RAJASTHAN AND ORS. 857
v. LORD NORTHBOOK AND ORS
pending. However, no adverse inference could have been drawn A
by reason of withdrawal of the objections of the agnates and/or
cognates of the deceased. The inter se disputes, if any, between
the agnates and/or cognates of the deceased and the legatees
under his Will, are irrelevant for the purpose of escheat
proceedings. The provisions of Escheats Act regulate the B
procedure for initiation of the proceedings and making of
enquiries in respect of properties to which the Escheats Act
applies, that is, ‘lawaris’ properties vesting in the State qua ultima
heres under Article 296 of the Constitution of India by escheat
or bona vacantia. The Escheats Act applies to properties vesting C
in the State. The Escheats Act is a complete Code which covers
the power under Article 296 and provides for making of enquiries;
custody and disposal and for vesting of properties in the State.
However, the condition precedent for exercise of jurisdiction
under the Escheats Act is subjective satisfaction that the property
D
vests by reason of intestacy and complete failure of heirs. The
power under the Escheats Act can be exercised only after the
Tehsildar ascertains whether or not there is any person entitled
to the properties of the deceased. If the property is in possession
of any person, such possession is not to be disturbed. In the
instant case, it is the case of the respondents themselves that E
the properties of the deceased were in the possession of the
Trust through the Manager. The mere issuance of public notice
by the Tehsildar, calling upon persons claiming interest or right
in the properties of the deceased to appear in his office with
documents, failing which it would be presumed that the Khetri F
house and other properties of the deceased were lawaris, does
not absolve the Tehsildar of his obligation to enquire into whether
there were any legal heirs. There were claimants who objected
to the grant of probate. Even though these objectors might have
withdrawn their objections to the grant of probate, whatever be G
the reason, they did not resile from their claim to be heirs of the
deceased under the Hindu Succession Act. The withdrawal of an
objection to grant of probate tantamounts to withdrawal of the
grounds of objection to the Will and/or in other words, retracting
the allegations of the Will being procured, forged, fabricated,
H
858 SUPREME COURT REPORTS [2019] 11 S.C.R.
A fraudulent or created by exercise of undue influence. The
caveators who objected to grant of probate to the Will might very
well have been advised not to proceed in view of the weakness
of their case, or may be for other reasons. That would not make
any difference to their status as agnates or cognates of the
B deceased testator. [Paras 49-57][901-A-H; 902-A-B]
1.6 The condition precedent for exercise of jurisdiction is
the existence of the jurisdictional fact of the properties in question
being bona vacantia, in the absence of any heirs. When existence
of jurisdiction by an authority, depends upon existence of a
C particular fact, the determination of such a fact is preliminary to
the exercise of jurisdiction. The existence of the fact has to be
decided at the threshold. Where the jurisdiction of an authority
depends upon a preliminary finding of fact, the High Court is
entitled, in an application under Article 226, to determine upon
D its own independent judgment, whether or not that finding is
correct. The District Collector clearly erred in rejecting the claims
of agnates on the ground that they had withdrawn their objections
in the probate proceedings. Withdrawal of objections to the
probate proceedings does not estop the agnates and/or cognates
E from claiming the property upon failure of the probate application.
[Paras 67, 68 and 70][904-B-C, F]
1.7 Under Article 226 of the Constitution of India, the High
Court, having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. The power of the
F High Court to issue prerogative writs is wide. The Constitution
does not place any limitation on such power. However, the Courts
have, through judicial pronouncements, evolved self imposed
restrictions on the exercise of power by the writ Court. When an
efficacious alternative remedy is available, the High Court does
G not normally exercise jurisdiction. However, when a writ petition
has been entertained and kept pending for years, it would not be
appropriate to reject the writ petition only on the ground of
existence of an alternative remedy. It would also be relevant to
note that the remedy of appeal availed by the Trustees was against
the order of the Collector passed in 2016 almost two decades
H
STATE OF RAJASTHAN AND ORS. 859
v. LORD NORTHBOOK AND ORS
after the writ petition had been filed. The supervening A
circumstance of the order of the Collector and the appeal
therefrom, would not justify the dismissal of the writ petition on
the ground of existence of alternative remedy. The writ petition
filed in 1987 had been pending in the High Court for about three
decades. Once the writ petition had been entertained and kept B
pending, it should not be rejected on the ground of existence of
alternative remedy of appeal before the Board of Revenue. In
deciding the question of maintainability of a writ petition in view
of existence of alternative remedy, this Court cannot forget that
the power to issue prerogative writs under Article 226 of the C
Constitution of India is plenary in nature. The High Court, having
regard to the facts of the case, has discretion to entertain or not
to entertain a writ petition. The existence or even invocation of
alternative remedy has nothing to do with the jurisdiction of the
writ court. Even if a party has already availed of the alternative
D
remedy by invoking the appellate jurisdiction, as also the
jurisdiction under Article 226, the party could elect to prosecute
proceedings under Article 226 for the same relief. The High Court
has rightly allowed the writ petition. This appeal is liable to be
dismissed. [Paras 71-75, 78][904-G-H; 905-A-E; 906-D-E]
E
Bombay Dyeing Manufacturing Co. Ltd. v. State of
Bombay AIR 1958 SC 328 : [1958] SCR 1122; Calcutta
Discount Company v. ITO, Companies District I and
Ors. AIR 1961 SC 372 : [1961] SCR 241 – followed.
Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra F
Trust v. Collector, Haridwar & Ors. (2017) 16 SCC 418
: [2017] 9 SCR 766 –relied on. State of Bihar v. Radha
Krishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR
808; Union of India v. Hindalco Industries (2003) 5
SCC 194 : [2003] 3 SCR 377; State of Madhya Pradesh G
& Ors. v. Sardar D.K. Jadav AIR 1968 SC 1186 : [1968]
SCR 823; Ujjambai v. State of U.P. AIR 1962 SC 1621
: [1963] SCR 778; Kuntesh Gupta vs. Management of
Hindu Kanya Mahavidyalaya Sitapur, U.P. & Ors.
H
860 SUPREME COURT REPORTS [2019] 11 S.C.R.
A (1987) 4 SCC 525 : [1988] 1 SCR 357; Municipal
Council, Khurai and Anr. vs. Kamal Kumar & Anr. AIR
1965 SC 1321 : [1965] SCR 653; M.G. Abrol, Addl.
Collector of Customs, Bombay & Anr. v. Shantilal
Chhotelal & Co. AIR 1966 SC 197 : [1966] SCR 284;
B State of U.P and Others v. Indian Hume Pipe Co. Ltd
(1977) 2 SCC 724 : [1977] 3 SCR 120; Kanak v. U.P.
Avas Evam Vikas Parishad & Ors. (2003) 7 SCC 693 :
[2003] 3 Suppl. SCR 232 – relied on.
State of Punjab v. Balwant Singh and Others (1992)
C Supp. (3) SCC 108 : [1991] 1 Suppl. SCR 458; –
referred to.
A-G of Ontario v Mercer (1883) 8 App Cas 767 –
referred to.
Halsbury’s Laws of England (Vol 17) and Vol 39, Fourth
D Edition – referred to.
Case Law Reference
In the Judgment of R. Banumathi, J.
[1958] SCR 1122 referred to Para 16
E
[1983] 2 SCR 808 referred to Para 16
[2017] 9 SCR 766 referred to Para 16
[1991] 1 Suppl. SCR 458 referred to Para 21
[1969] 3 SCR 203 referred to Para 24
F
[1983] 2 SCR 808 referred to Para 26
(2003) 2 SCC 107 referred to Para 51
In the Judgment of Indira Banerjee, J.
G [1958] SCR 1122 followed Para 24
[1991] 1 Suppl. SCR 458 referred to Para 34
[2017] 9 SCR 766 relied on Para 35
H
STATE OF RAJASTHAN AND ORS. 861
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
[1983] 2 SCR 808 relied on Para 35 A
[1961] SCR 241 followed Para 65
[2003] 3 SCR 377 relied on Para 66
[1968] SCR 823 relied on Para 68
[1963] SCR 778 relied on Para 68 B
[1988] 1 SCR 357 relied on Para 76
[1965] SCR 653 relied on Para 77
[1966] SCR 284 relied on Para 77
C
[1977] 3 SCR 120 relied on Para 77
[2003] 3 Suppl. SCR 232 relied on Para 77
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6677
of 2019
From the Judgment and Order dated 17.11.2016 of the High D
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil
Writ Petition No. 2713 of 1987
P. S. Narsimha, ASG, S. S. Shamshery, AAG, Amit Sharma, Vikas
Malik, Ankit Raj, Ms. Indira Bhakar, Ms. Ruchi Kohli, Rahul G. Tanwani,
Vikash Shukla, Advs. for the appellants. E
Dr. A. M. Singhvi, Paras Kuhad, Sr. Advs., Mahesh Agarwal,
Manu Aggarwal, Anshuman Srivastava, Ms. Devika Mohan, E. C.
Agrawala, Kumar Mihir, Anuj Prakash, Advs. for the respondents.
The Judgments and Order of the Court were delivered/passed by
F
R. BANUMATHI, J.
1. Leave granted.
2. This appeal arises out of the judgment dated 17.11.2016 passed
by the High Court of Rajasthan at Jaipur Bench in DB Civil Writ Petition
No.2713 of 1987 in and by which the High Court quashed the G
communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987
passed by the Deputy Secretary, Revenue, Govt. of Rajasthan, District
Collector, Jhunjhunu and Tehsildar, Khetri respectively in the matter of
H
862 SUPREME COURT REPORTS [2019] 11 S.C.R.
A taking over the properties of Sh. Raja Sardar Singh by the State under
the Rajasthan Escheats Regulation Act, 1956.
3. Sh. Raja Sardar Singh expired on 28.01.1987 intestate and
without any legal heirs. Sh. Raja Sardar Singh was a Bar at law from
England, a member of the Constituent Assembly, a Rajya Sabha Member
B and also Ambassador to Laos and a highly educated person. He died on
28.01.1987 as a childless widower and at that time, he was a resident of
No.5, Sardar Patel Marg, New Delhi. Sh. Raja Sardar Singh left behind
him number of valuable properties such as Khetri House Delhi, Hotel
Khetri Jaipur, Kothi Sukh Mahal, Kothi Jai Niwas, Kothi Amar Hall,
Nizamat Building, Ajit Niwas Bagh Farm, Record Room, Havili Prohitji
C Wali, Dera Brijlaji Wala, Farrash Khana Chabutra, Tin Shed Mela Gugaji
and Sabka Patwar Ghar, Jhunjhunu and other movable and immovable
properties. On 16.02.1987, the Sub-Divisional Officer (SDO), Khetri
sent a letter to the District Collector, Jhunjhunu stating that an information
has been received that Sh. Raja Sardar Singh expired in Mumbai on
D 28.01.1987 without any legal heir and that he has executed one Will on
30.10.1985. Sh. Raja Sardar Singh executed a Codicil on 07.11.1985.
Based on the Will/Codicil, a trust called “Khetri Trust” was constituted
with four Trustees.
4. On 24.02.1987, one Dwarka Prasad Parik filed application
E before the Tehsildar, Jaipur stating that Sh. Raja Sardar Singh died without
heirs and that there are several valuable properties left behind him. The
said Dwarka Prasad alleged that after the death of Sh. Raja Sardar
Singh, the Manager, Nirbhay Singh and other staff are removing the
valuable articles by loading in the trucks and therefore, immediate action
be taken which is necessary for taking the properties into State custody.
F The said Dwarka Prasad also prayed that the properties of Sh. Raja
Sardar Singh be declared as the properties of the State and immediate
action be taken for its management so that the same can be saved from
displacement and removal.
5. Public Notice by the Tehsildar:- A probe was made upon
G the letter dated 16.02.1987 by one Mangilal who informed the District
Collector, Jhunjhunu about the death of Sh. Raja Sardar Singh and that
he died without any legal heir. Hence, the first condition for initiating
proceedings under the provisions of Section 4 of the Rajasthan Escheats
H
STATE OF RAJASTHAN AND ORS. 863
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
Act, 1956 i.e. “Upon receipt of information as to the existence within A
Tehsil of any property of which the Act applies. Whether or not in
the possession of any person” has been satisfied. The SDO, Khetri
has sent a report on 16.02.1987 to the District Collector, Jhunjhunu stating
that Sh. Raja Sardar Singh expired in Mumbai on 28.01.1987 without
any legal heir and that he has executed one Will by virtue of which a
B
trust by name “Khetri Trust” was constituted and late Sh. Raja Sardar
Singh has donated his movable and immovable properties to the said
trust and the said report of the SDO has also made it clear that Sh. Raja
Sardar Singh has no brother or sister nor any child and that he was a
widower. On 27.02.1987, the Tehsildar, Jaipur brought out a Public Notice
inter alia stating that any person who has any interest in the properties C
of the deceased Sh. Raja Sardar Singh, should be present before him.
On 28.02.1987, the District Collector sent a letter to the Tehsildar to
prepare the inventories of the moveable and immoveable properties of
Sh. Raja Sardar Singh for the purpose of proceeding under the Rajasthan
Escheats Regulation Act, 1956. On 04.03.1987, Naib Tehsildar issued a
D
notice to Nirbhay Singh, Manager of Hotel Khetri informing him that he
has been appointed as the Inquiry Officer and directing him to produce
all the documents on 05.03.1987. In response to the said Notice, Nirbhay
Singh, Manager on behalf of Khetri Trust filed response stating that Sh.
Raja Sardar Singh, before his death, had vested his movable and
immovable properties in Khetri Trust and that the Trustees are running E
the Hotel and that the properties of Sh. Raja Sardar Singh do not fall
within the ambit of Article 296 of the Constitution of India or under the
provisions of the Rajasthan Escheats Regulation Act, 1956 (“The
Escheats Act”).
6. The Tehsildar issued a Notice dated 07.03.1987 to Nirbhay F
Singh calling upon him to appear personally on 12.03.1987 and produce
all the documents pertaining to the said properties or else it would be
presumed that the properties which are in possession of Nirbhay Singh
are completely unclaimed. The said Nirbhay Singh appeared before the
Tehsildar on 12.03.1987 and filed his response informing about filing of
Probate Case before the Delhi High Court and that the Trust is in actual G
possession of the Khetri House and the entire movable and immovable
properties and that he is representing as Manager of the Trust. When
the matters stood thus pending before the Tehsildar, the Trustees filed
H
864 SUPREME COURT REPORTS [2019] 11 S.C.R.
A Testamentary Case No.26 of 1987 on 10.03.1987 before the High Court
of Delhi for probate of the Will.
7. To initiate the proceedings under the Escheats Act, the Collector
addressed a letter dated 15.06.1987 to the Government of Rajasthan.
After referring to the said letter of the Collector dated 15.06.1987, Dy.
B Secretary, Government of Rajasthan passed the order dated 03.07.1987
which reads as under:-
“Government of Rajasthan
Revenue (Group-3) Department
C No.10(4)/Raj/Group-3/G/87 Dated 3.7.1987
To
District Collector, Jhunjhunu
Sub: Regarding possession and ownership of movable and
immovable properties of late Raja Bahadur Singh Khetri.
D
Ref: Your letter No.1955/Nyay/87 dated 15.06.1987
Sir,
E From the captioned subject and contents of your order, it is
deemed that Shri Raja Bahadur Singh had died intestate. The
properties of late Raja Bahadur Sardar Singh would come under
the Rajasthan Escheat Regulation Act 1956, therefore proceedings
under the relevant provisions of Rajasthan Escheat Regulation
Act 1956 be initiated in regard to the properties situated at Jhunjhunu
F and the concerned District Collectors be informed about the
properties lying in other Districts. In regard to the properties situated
outside the State of Rajasthan concerned State Government be
informed.
After doing the needful, the undersigned will be informed.
G
R.S. Mittal
Deputy Secretary
Government of Rajasthan”
H
STATE OF RAJASTHAN AND ORS. 865
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
After referring to the above proceeding of Government of A
Rajasthan, the District Collector vide letter dated 22.07.1987 addressing
the Tehsildar, Khetri stated that the properties of deceased Sh. Raja
Sardar Singh situated in the State of Rajasthan are governed by the
provisions of the Escheats Act and directed that the proceedings under
the Escheats Act be initiated in respect of properties of late Sh. Raja
B
Sardar Singh of Khetri which are situated in Khetri, District Jhunjhunu.
In the said letter, the District Collector further stated that the possession
of the unclaimed properties be taken over in favour of the State and to
take necessary action in this regard at the earliest. The letter of the
District Collector also states that the other properties owned by Sh.
Raja Sardar Singh in other States or abroad be collected and action be C
taken accordingly. Based on the said proceedings of the District Collector,
the Tehsildar has taken possession of the properties in Khetri vide Spot
Possession Report (31.07.1987). In the Spot Possession Report, it
was mentioned that the seals of Khetri Trust were affixed on the gates
and keys of some of the other properties are with Khetri Trust in Delhi.
D
The Spot Possession Report also refers to leasing of some of the
properties from the time of Sh. Raja Sardar Singh and running of a
School in one of the properties. The immovable properties, in particular,
the agricultural lands and orchards were attached by the proceeding
dated 03.08.1987. The Tehsildar submitted a report to the SDO, Khetri
containing a list of properties which were taken over in custody of the E
State. In the said Report, it was stated that some of the properties were
under lock put by the Trust. The Tehsildar also sent another Report
dated 24.05.1989 to the District Collector, Jhunjhunu containing a list of
properties which were taken over in custody of the State and also that
some of the properties were in lock and that the keys are with the Trust.
F
8. Other Proceedings:- Various cases have been filed in respect
of movable and immovable properties of Sh. Raja Sardar Singh. First
one was the application under Section 195 of the Indian Succession Act,
1925 and the application under Section 192 for the appointment of the
Curator before the District Court at Jaipur. Though the details of these
applications are not available in the materials placed before this Court, G
the same have been referred to in the letter of the SDO dated 15.04.1991.
9. Writ Petition No.2713 of 1987:-Parmeshwar Prasad filed
Civil Writ Petition No.2713 of 1987 challenging initiation of proceedings
under the Escheats Act and the communications/orders dated 03.07.1987,
H
866 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 22.07.1987 and 03.08.1987 by the Dy. Secretary, Revenue, Govt. of
Rajasthan, District Collector, Jhunjhunu and Tehsildar, Khetri respectively.
On 19.11.2001, the High Court of Rajasthan adjourned the proceedings
in the said writ petition sine-die awaiting the decision of the Delhi High
Court in Testamentary Case No.26 of 1987. The said writ petition has
taken up by the High Court after fifteen years and was allowed by the
B
impugned order.
10. Testamentary Case No.26 of 1987:- Based on the Will
allegedly executed by Sh. Raja Sardar Singh on 30.10.1985, Parmeshwar
Prasad and the Trustees of Khetri Trust have filed the Testamentary
Case seeking for probate of the Will read with codicil dated 07.11.1985.
C The agnates of Sh. Raja Sardar Singh raised objections for grant of
probate. During the course of the proceedings, the Delhi High Court
was informed that the provisions of Rajasthan Escheats Regulation Act
have already been invoked and that the State has taken possession of
some of the properties of Sh. Raja Sardar Singh. By an elaborate judgment
D dated 03.07.2012, the Delhi High Court dismissed the Testamentary Case
No.26 of 1987 and held that it is for the State of Rajasthan to decide in
accordance with law in pursuance of the proceedings taken under the
Rajasthan Escheats Regulation Act, 1956. The relevant observations
made by the Delhi High Court in the said Testamentary Case will be
shortly referred to at the appropriate place. The executors of the will/
E trustees have preferred an appeal against the said judgment dated
03.07.2012 before the Delhi High Court and the said appeal is pending.
But no stay was granted by the Division Bench in the said appeal.
11. Application by Arjun Singh, father of Respondent No.8:
Arjun Singh, father of Respondent No.8 claiming to be the agnate of the
F deceased, submitted his objections before the Tehsildar stating that the
alleged Will dated 30.10.1985 is not legally valid and that the said Will
has been executed due to the influence of Lady Olga Manning, a foreigner,
who was close to Sh. Raja Sardar Singh.
12. Order of the Collector dated 02.02.2016:- The Collector
G has passed a detailed order on 02.02.2016 rejecting the claims of the
Khetri Trust based on Will and also the claims of the agnates namely
Gajendra Singh, Surender Singh, Hemender Singh, Nagender Singh and
Yogendra Singh. The District Collector has referred to the order of the
Delhi High Court in Testamentary Case and various other proceedings
H and held that Sh. Raja Sardar Singh died intestate and issueless and
STATE OF RAJASTHAN AND ORS. 867
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
therefore, Section 29 of the Hindu Succession Act read with Sub-section A
9(b) of Section 6 of the Rajasthan Escheats Regulation Act, 1956
automatically comes into play and all properties left behind by Sh. Raja
Sardar Singh shall vest in the State Government of Rajasthan. The District
Collector directed that copy of the order be forwarded to the Public
Prosecutor to be presented before the District Judge, Jaipur for obtaining
B
a vesting order/further course of legal action as mandated under the
Act.
13. Appeal before the Board of Revenue:- Against the order
passed by the District Collector, in terms of Section 7 of the Escheats
Act, Khetri Trust has filed appeal before the Board of Revenue and the
Board of Revenue has stayed the order of the District Collector vide C
order dated 12.04.2016 and the said appeal is pending.
14. Impugned Order:- It is in this background, the High Court
has taken up the Civil Writ Petition No.2713 of 1987 which was pending
for about thirty years in which the trustees have challenged the
communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. D
Though subsequent to those three communications/orders, various orders
have come to be passed by the High Court, by the District Collector and
the appeals pending before the High Court and the Board of Revenue,
the High Court proceeded to quash those communications/orders dated
03.07.1987, 22.07.1987 and 03.08.1987 passed by the Dy. Secretary, E
Revenue, Govt. of Rajasthan, District Collector, Jhunjhunu and Tehsildar,
Khetri respectively by holding that the provisions of the Escheats Act
have not been complied with and that the action by the State in taking
over the possession of the properties of Sh. Raja Sardar Singh is arbitrary
and unsustainable.
F
15. On behalf of the appellant-State of Rajasthan, learned Additional
Solicitor General Mr. P.S. Narsimha has submitted that due to the absence
of any rightful owner, State of Rajasthan has rightly initiated the
proceedings under the Rajasthan Escheats Regulation Act, 1956. It was
submitted that the High Court has not appreciated the purport of Sections
4 and 6 of the Escheats Act which vests the power with the concerned G
authorities to initiate proceedings under the Act and to take possession
of the escheat properties and the High Court erred by ignoring the fact
that the communications/orders dated 03.07.1987, 22.07.1987 and
03.08.1987 were in terms of the provisions of the Act. The learned
Additional Solicitor General further submitted that the Trustees having H
868 SUPREME COURT REPORTS [2019] 11 S.C.R.
A filed the appeal against the dismissal of the Testamentary Case and the
agnates having filed the appeal before the Board of Revenue challenging
the order of the Collector, the High Court should have directed the parties
to await till disposal of the appeal by the Delhi High Court and the appeal
by the Board of Revenue. The learned Senior counsel further submitted
that by the order dated 19.11.2001, the High Court having adjourned the
B
Writ Petition No.2713 of 1987 sine-die awaiting the decision of the Delhi
High Court, ought to have awaited the decision of the Delhi High Court
in the appeal preferred against the judgment in the Testamentary Case.
It was contended that after the three communication/orders which were
under challenge in Writ Petition No.2713 of 1987, orders came to be
C passed by the courts, competent authorities and while so, the High Court
erred in ignoring the subsequent judgments/orders and the impugned
order is not sustainable.
16. Per contra, learned Senior counsel for the respondents Dr. A.
M. Singhvi and Mr. Paras Kuhad submitted that there were agnates and
D cognates of the deceased of which the State was well aware and
therefore, the properties of Sh. Raja Sardar Singh cannot be said to be
lawaris-abandoned property. Learned Senior counsel submitted that for
escheating the properties, there should be total absence of any claimant
for a reasonable period of seven years and that the character of the
property as an abandoned property should be conclusively established.
E By placing reliance upon Bombay Dyeing and Manufacturing Co.,
Ltd. v. State of Bombay and Others AIR 1958 SC 328, it was contended
that power under Article 296 of the Constitution can be exercised only
as long as there is no claimant and the property assumes the character
of an abandoned property and that the case in hand cannot be said to be
F one of absolute failure of heirs. It was submitted that the onus to establish
that the property is bona vacantia is upon the Government and the
burden of proof is very high. Reliance was placed upon State of Bihar
v. Radha Krishna Singhand Others(1983) 3 SCC 118, Kutchi Lal
Rameshwar Ashram Trust Evam Anna Kshetra Trust Through Velji
Devshi Patel v. Collector, Haridwarand Others(2017) 16 SCC 418.
G On behalf of the respondents, it was urged that initiation of the
proceedings under the Escheats Act and taking over the possession
thereof is erroneous as there are claims by the agnates and also by the
Trustees. It was submitted that assuming that the Escheats Act was
applicable, the possession was taken over from the Trust who was in
H
STATE OF RAJASTHAN AND ORS. 869
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
“present and actual possession” which is in contravention of proviso A
to Section 4 of the Escheats Act. It was further submitted that taking
over possession of the properties by the State from Kherti Trust is illegal
and that the same is in violation to proviso to Section 4(1) of the Escheats
Act.
17. I have carefully considered the submission and perused the B
impugned judgment and the judgment of the High Court of Delhi in
Testamentary Case No.26 of 1987 and other materials on record. The
following points arise for consideration:-
(i) Whether the High Court was right in saying that the initiation
of proceedings under Rajasthan Escheats Regulation Act, 1956 is not C
maintainable? Whether the learned Judge was right in saying that even
assuming that the Act is applicable, taking over possession of properties
is in violation of the provisions of the Act?
(ii) Whether the High Court was right in quashing the
communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 D
by ignoring the various subsequent orders passed by the Delhi High
Court and by the competent authorities under the Escheats Act?
(iii) When the appeal against the probate case is pending before
the Division Bench of the High Court of Delhi and also the appeal against
the order passed by the District Collector is pending before the Board of E
Revenue, whether the High Court was right in quashing the three
communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 in
and by which the proceedings were initiated in terms of the Rajasthan
Escheats Regulation Act, 1956?
18. Contention of the respondents is that it is not a case of F
bona vacantia (failure of legal heirs) and the very invocation of
proceedings under the Rajasthan Escheats Regulation Act, 1956 is not
sustainable. Next limb of arguments is that even assuming that invocation
of the Rajasthan Escheats Act is correct, the provisions of the Act have
not been strictly followed by the State Government and the entire
proceedings are vitiated. Let me consider the merits of the first contention G
that invocation of proceedings under the Act was not warranted as it
was not a case of lawaris-abandoned property.
19. Escheat is a bona vacantia and can be exercised only in
case of abandoned property:-Article 296 is the constitutional provision
H
870 SUPREME COURT REPORTS [2019] 11 S.C.R.
A enabling vesting of the property with the State Government if a person
dies intestate and without any heir qualified to succeed to his or her
property. Section 29 of the Hindu Succession Act, 1956 embodies the
principle of escheat. Section 29 provides as follows:-
“29. Failure of heirs.—If an intestate has left no heir qualified
B to succeed to his or her property in accordance with the provisions
of this Act, such property shall devolve on the Government; and
the Government shall take the property subject to all the obligations
and liabilities to which an heir would have been subject.”
The doctrine of escheat postulates that where an individual dies
C intestate and does not leave behind an heir who is qualified to
succeed to the property, the property devolves on the Government.
20. Section 29 of the Hindu Succession Act comes into operation
only on there being a failure of heirs. The word ‘failure’ used in Section
29 makes it clear that there must be a total absence of any heir to the
D person dying intestate. The absence of any heir is a pre-condition for
initiation of the proceedings for escheating of the property to the
Government.
21. It was held in State of Punjab v. Balwant Singhand
Others1992 Supp. (3) SCC 108 that the State Government does not
E take the property “as a rival or preferential heir of the deceased but
as the lord paramount of the whole soil of the country”.In Balwant
Singh’s case, the Supreme Court held as under:-
“11. The property is escheated to the Government when an
intestate has left no heir qualified to succeed to his or her property.
F The property shall devolve on the Government and the Government
shall take the property subject to all the obligations and liabilities
of the property. It is only in the event of the deceased leaving
behind no heir to succeed, the State steps in to take the property.
12. The State does not take the property as a rival or preferential
heir of the deceased but as the lord paramount of the whole soil of the
G
country. In Halsbury’s Laws of England, 4th ed. Vol. 17 para 1439 it is
stated as follows:
“To whom land escheated.— Escheat in the case of death
intestate before 1926 was to the mesne lord if he could be found
but, as since 1290 sub-infeudation has been forbidden, in the great
H
STATE OF RAJASTHAN AND ORS. 871
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
majority of cases there was no record of the mesne tenure, and A
the escheat was to the Crown as the lord paramount of the whole
soil of the country.”
13. Section 29, in our opinion, shall not operate in favour of the
State if there is any other heir of the intestate. Indeed, Section 29 itself
indicates that there must be failure of heirs. ‘Failure’ of heirs means the B
total absence of heirs to the intestate………….”.
22. Contention of the learned Senior counsel appearing for
respondents No.5 to 8 is that Section 4 applies only to the property
described in Section 2(4) which refers to a property “vesting in the
State”. It was further submitted that the Rajasthan Escheats Act, 1956 C
applies only to properties vesting in the State qua ultima heres under
Article 296 by escheat or as bona vacantia and thus, before initiation
of any proceeding under the Act, the property must have acquired the
character of an abandoned property.
23. Contention of the respondents No.5 to 8 is that the moment D
there is a claim, escheating does not arise. It was submitted that escheat
is a bona vacantia and can be exercised only in case of abandoned
property and “failure of heirs” and in the present case, there is no finding
as to “failure of heirs”. It was contended that for claim of escheat by the
Government, it should be established that the property is in the nature of
lawaris/abandoned property. In support of the contention, reliance is E
placed upon Bombay Dyeing’scase,in which unpaid wages came to be
accumulated for about three years. Three years’ arrears were transferred
to Labour Welfare Fund and remained there unclaimed for three years.
Observing that merely because there was no claim for the unpaid wages
for three years, does not mean that it became abandoned property. In F
Bombay Dyeing, this Court held as under:-
“27. It remains to deal with the contention of the respondents
that the impugned legislation is, in substance, one in respect of
abandoned property, and that, by its very nature, it cannot be held
to violate the rights of any person either under Article 19(l)(f) or G
Article 31(2). That would be the correct position if the character
of the legislation is what the respondents claim it to be, for it is
only a person who has some interest in property that can complain
that the impugned legislation invades that right whether it be under
Article 19(l)(f) or Article 31(2), and if it is abandoned property, ex
H
872 SUPREME COURT REPORTS [2019] 11 S.C.R.
A hypothesis there is no one who has any interest in it. But can the
impugned Act be held to be legislation with respect to abandoned
property? To answer this question, it is necessary to examine the
basic principles underlying such a legislation, and ascertain whether
those are the principles on which the Act is framed. The expression
“abandoned property” or to use the more familiar term “bona
B
vacantia” comprises properties of two different kinds, those which
come in by escheat and those over which no one has a claim. In
Halsbury’s Laws of England, 3rd Edn., Vol. 7, p. 536, para 1152,
it is stated that “the term bona vacantia is applied to things in
which no one can claim a property and includes the residuary
C estate of persons dying intestate”. There is, however, this distinction
between the two classes of property that while the State becomes
the owner of the properties of a person who dies intestate as his
ultimate heir, it merely takes possession of property which is
abandoned. At common law, abandoned personal property could
not be the subject of escheat. It could only be appropriated by the
D
Sovereign as bona vacantia. Vide Holdsworth’s History of
English Law, 2nd Edn., Vol. 7, p. 495-96. In Connecticut Mutual
Life Insurance Company v. Moore (333 US 541, 546) the
principle behind the law was stated to be that “the state may,
more properly, be custodian and beneficiary of abandoned property
E than any other person”. Consistently with the principle stated above,
a law relating to abandoned property enacts firstly provisions for
the State conserving and safeguarding for the benefit of the true
owners property in respect of which no claim is made for a
specified and reasonable period, and secondly, for those properties
vesting in the State absolutely when no claim is made with reference
F
thereto by the true owners within a time limited.”
24. Contending that the initiation of the proceedings under the
Rajasthan Escheats Act cannot stand unless the conditions for escheat
are satisfied, reliance was placed upon in Peirce Leslie and Co. Ltd.
(In CA No.1174 of 1965) and Miss Violet Ouchferlong Wapshare
G and Others (In CA No.1935 of 1966) v. Miss Violet Ouchterlong
Wapshare and Others (In CA No.1174 of 1965) and Peirce Leslie
and Co. Ltd. and Others (In CA No.1935 of 1966) AIR 1969 SC
843.
H
STATE OF RAJASTHAN AND ORS. 873
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
25. Observing that escheat is a doctrine which recognizes the A
State as a paramount sovereign in whom the property would vest upon a
clear case of failure of heirs, in Kutchi Lal (2017) 16 SCC 418,this
Court held as under:-
“20. …….Section 29 embodies the principle of escheat. The
doctrine of escheat postulates that where an individual dies intestate B
and does not leave behind an heir who is qualified to succeed to
the property, the property devolves on the Government. Though
the property devolves on the Government in such an eventuality,
yet the Government takes it subject to all its obligations and
liabilities. The State in other words does not take the property (at
SCC p. 113, para 12) “as a rival or preferential heir of the deceased C
but as the lord paramount of the whole soil of the country”, as
held in State of Punjab v. Balwant Singh 1992 Supp (3) SCC
108. This principle from Halsbury’s Laws of England 4th. Ed.
Vol.17, Para 1439, was adopted by this Court while explaining the
ambit of Section 29. Section 29 comes into operation only on there D
being a failure of heirs. Failure means a total absence of any heir
to the person dying intestate. When a question of escheat arises,
the onus rests heavily on the person who asserts the absence of
an heir qualified to succeed to the estate of the individual who has
died intestate to establish the case. The law does not readily accept
such a consequence. …. E
…….
“25. The principle that the law does not readily accept a claim to
escheat and that the onus rests heavily on the person who asserts
that an individual has died intestate, leaving no legal heir, qualified F
to succeed to the property, is founded on a sound rationale. Escheat
is a doctrine which recognises the State as a paramount sovereign
in whom property would vest only upon a clear and established
case of a failure of heirs. This principle is based on the norm that
in a society governed by the Rule of Law, the court will not presume
that private titles are overridden in favour of the State, in the G
absence of a clear case being made out on the basis of a governing
statutory provision. …….. The Collector is an officer of the State.
He can exercise only such powers as the law specifically confers
upon him to enter upon private disputes. In contrast, a civil court
has the jurisdiction to adjudicate upon all matters involving civil H
874 SUPREME COURT REPORTS [2019] 11 S.C.R.
A disputes except where the jurisdiction of the court is taken away,
either expressly or by necessary implication, by statute…...”
[Underlining added].
26. In Radha Krishna(1983) 3 SCC 118, this Court held as
under:-
B “272. It is well settled that when a claim of escheat is put forward
by the Government the onus lies heavily on the appellant to prove the
absence of any heir of the respondent anywhere in the world. Normally,
the court frowns on the estate being taken by escheat unless the essential
conditions for escheat are fully and completely satisfied. Further, before
C the plea of escheat can be entertained, there must be a public notice
given by the Government so that if there is any claimant anywhere in the
country or for that matter in the world, he may come forward to contest
the claim of the State. In the instant case, the States of Bihar and Uttar
Pradesh merely satisfied themselves by appearing to oppose the claims
of the plaintiffs-respondents. Even if they succeed in showing that the
D plaintiffs were not the nearest reversioners of the late Maharaja, it does
not follow as a logical corollary that the failure of the plaintiffs’ claim
would lead to the irresistible inference that there is no other heir who
could at any time come forward to claim the properties.”
27. In the light of the above principles, let us consider whether the
E State of Rajasthan was right in invocation of the Escheats Act, 1956 to
take the properties of Sh. Raja Sardar Singh by escheat for want of heir
or successor or as bona vacantia for want of a rightful owner. No
doubt, the provisions of the Rajasthan Escheats Regulation Act, 1956
will be applicable only when the person dies intestate and/or is not
F succeeded by any of the person under Section 8 of the Hindu Succession
Act or other succession laws.
28. There are two claims to the properties of the deceased Sh.
Raja Sardar Singh:-
• By Khetri Trust said to have been created by virtue of Will
G executed by Sh. Raja Sardar Singh dated 30.10.1985; and
• By agnates of the deceased.
Let me consider whether in the facts and circumstances of the
case, the properties of Sh. Raja Sardar Singh were bona vacantia
H
STATE OF RAJASTHAN AND ORS. 875
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
justifying the right of the Government to take the properties by escheat A
as a case of “failure of heirs”.
29. Sh. Raja Sardar Singh died on 28.01.1987. The Khetri Trust
was created on 31.01.1987. The Trust deed was executed on 14.04.1987
in which eminent persons like Bhaskar Mitter-Chairman Exide Ltd.,
Narottam Sehgal-ICS Former Home Secretary to Government of India, B
Dr. Romila Thapar, the eminent historian and Vikram Lal-Chairman Eicher
Ltd. have held the post of Trustees of the Khetri Trust. In Testamentary
Case No.26 of 1987, the High Court of Delhi has pointed out that over a
period of time, Trustees changed and as on 08.07.2003, Lord Northbook
being son of Lady Olga Manning was made the Executor Trustee of the
Will, apart from Maharaj Gaj Singh of Jodhpur. The executor of the Will C
viz. Parmeshwar Prasad had filed Testamentary Case No.26 of 1987 in
March, 1987 under Section 276 of the Indian Succession Act, 1925 for
grant of probate on the basis of the Will dated 30.10.1985 read with
Codicil dated 07.11.1985. So far as the Khetri Trust is concerned, it has
filed three interlocutory applications bearing Nos.5737-5739 of 2009. D
Trustees of Khetri Trust were impleaded as party pursuant to the order
passed in interlocutory application No.5737 of 2009 – application for
impleadment of the Trustees.
30. In Testamentary Case, the State of Rajasthan was also
impleaded as a party because of bona vacantia i.e. for want of a rightful E
owner. The said interlocutory application bearing No.867 of 1995 for
impleadment filed by the State of Rajasthan was dismissed by the Single
Judge against which an appeal was preferred by the State of Rajasthan
before the Division Bench in F.A.O. (OS) No.166 of 1996. By order of
the Division Bench dated 08.11.1996, the State of Rajasthan was ordered
to be impleaded as a party. But the State of Rajasthan was only permitted F
to address the arguments on the basis of the existing records.
31. Upon detailed consideration of oral and documentary evidence
adduced by the parties, by a detailed order dated 03.07.2012, the High
Court of Delhi had dismissed the Testamentary Case No.26 of 1987 and
held that “the petitioners-executors of the Will were not able to G
establish execution of the Will dated 30.10.1985 and the Codicil
dated 07.11.1985 in accordance with law and that the executors
failed to dislodge the suspicious circumstances surrounding the Will.”
The relevant findings of the High Court are as under:-
H
876 SUPREME COURT REPORTS [2019] 11 S.C.R.
A “101.1 That the petitioners have not been able to prove the Will
Exhibit P-1 and the Codicil Exhibit P-3. The Will is not proved on
account of the fact that the testimony of PW-1, P.N. Khanna and
RW-8 is dramatically opposite. RW-8 has no reason to speak
untruth, which will benefit him personally in any manner
whatsoever.
B
………
101.4 That the Will which is executed by the deceased/testator is
incomplete and lacks material particulars. It talks about
bequeathing immovable and movable properties to the Trust
C mentioned “herein below” and no details of the properties are
mentioned in the Will itself nor are the copies of the income-tax
return or the wealth-tax return attached as the Will says that details
of the properties are given therein. The petitioners have
independently failed to prove the said documents.”
D Against the said judgment dismissing Testamentary Case, the
Trustees had preferred an appeal before the High Court of Delhi and
the same is pending in which, no stay was granted.
32. In the said Writ Petition being WP No.2713 of 1987, the Trust
challenged three communications/orders dated 03.07.1987, 22.07.1987
E and 03.08.1987 basing its claim upon the Will and that they had filed the
probate case before the High Court of Delhi which was dismissed. Once
the decision of the High Court of Delhi in the probate case has gone
against the Trust, the Trust has no semblance of right, title and interest in
the property, unless the Trust succeeds in the pending testamentary appeal,
the Trust has no right to lay claim in the properties under escheat. The
F Trust having no right in the property, appears to have now taken up the
cause of agnates, which the High Court, in my considered view, did not
keep in view.
33. In the Writ Petition No.2713 of 1987, the Trustees of Khetri
Trust having challenged three communication/orders initiating the
G proceedings under the Escheats Act, 1956 represented to the High Court
that they had filed a probate case before the High Court of Delhi and
requested the matter be adjourned. Upon consideration of the
representation made by the Trustees of Khetri Trust that a probate case
is pending, the High Court of Rajasthan by its order dated 19.11.2001
adjourned the Writ Petition sine-die awaiting the decision of the Delhi
H
STATE OF RAJASTHAN AND ORS. 877
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
High Court. The Trust thus, chose to seek an adjournment in the Writ A
Petition challenging the initiation of the proceedings under the Act till the
final decision of the probate case. Once the decision in the probate case
had gone against them, unless they succeed in the appeal, Khetri Trust
has no semblance of right to lay a claim over the properties.
34. The agnate such as Gaj Singh Alsisar-respondent No.8 and B
other agnates viz. Surender Singh, Hemender Singh, Nagender Singh
and Yogendra Singh have filed their objections resisting grant of probate
of the Will dated 30.10.1985. Subsequently, all of them have withdrawn
their objections. Regarding the conduct of the agnates withdrawing their
objections, observing that the reasons for such withdrawal is inexplicable,
in the concluding para, the Delhi High Court in its judgment dated C
23.11.2012 held as under:-
“……101.7 There were many objectors who had raised objection
to the grant of probate/the letter of administration but actually
each one of them withdrew. The reasons for withdrawal by them
are inexplicable. No credible reason for the same has been given. D
This makes the Court to draw the inference that some forces
were behind the scene which made them withdraw their objections
leaving the field open for the petitioners but for the opposition of
the State of Rajasthan.”
As far as the objection of Gaj Singh Alsisar-respondent No.8, in E
the probate proceedings, he subsequently withdrew his claim/objection
on 10.02.2009 suo moto.
35. So far as other objectors are concerned, in probate case the
High Court of Delhi observed as under:-
F
“16. After filing of the probate petition, a number of objections
were filed in response to the citation published in the “Statesman”
on 17.04.1987, which had a wide circulation including in the State
of Rajasthan, where most of the properties were situated. These
objections were filed by the persons, namely, Rajender Singh, who
died after filing of the objection and was represented by his legal G
heirs, Hemender Singh, Nagender Singh and Shobha Kanwar. The
other objections were filed by Arjun Singh, Surender Singh,
Narender Singh, Laxman Singh, Dwarka Prasad Parekh and
Raghuvir Singh. Out of these objectors, except Raghuvir Singh,
the rest of the objectors withdrew their objections by filing
H
878 SUPREME COURT REPORTS [2019] 11 S.C.R.
A applications before the court on 10.02.2009. So far as Raghuvir
Singh is concerned, he was stated to be incarcerated in connection
with some criminal case registered against him in Jaipur Central
Jail, who initially persisted with his objections and made allegations
that the Khetri Trust and other entities had fraudulently fabricated
documents and sold various properties of Raja’s Estate, a number
B
of times, however, before the start of arguments on the merits of
the petition, Raghuvir Singh also withdrew his objections.”
As observed by the District Collector, there were number of
objectors to the grant of probate in favour of Khetri Trust and all of them
have gradually withdrawn their objections and the conduct of the agnates
C raises suspicion on their bonafide. When the agnates/other persons
claiming right in the estate of Sh. Raja Sardar Singh have withdrawn
their objections, naturally the inference is that they have accepted the
claim/right of Khetri Trust, which claims through the Will. An inference
has to be drawn against the persons that they have no right of claim in
D the properties of Sh. Raja Sardar Singh. The so called agnates or cognates
cannot adopt double stand i.e. one claiming right in themselves and another
allowing Khetri Trust to claim through the Will. It is also to be pointed
out that the respondents No.8 and 9 and respondent No.6-Late Rajender
Singh have not produced any document showing their status as agnates
nor initiated any proceeding for declaration of their status.
E
36. Contention of the respondents is that the condition precedent
for initiation of proceedings under the Escheats Act is “failure of heirs”
and there is no finding by the authorities as to “failure of heirs” and
therefore, the proceedings under the Escheats Act could not have been
initiated. It was submitted that there was no enquiry conducted to satisfy
F the authorities as to “failure of heirs” to succeed to the properties and
there was no finding as to “failure of heirs” and in the absence of finding
as to “failure of heirs”, the proceedings initiated under the Escheats Act
was wholly jurisdiction and hence, the High Court rightly quashed the
orders dated 03.07.1987, 22.07.1987 and 03.08.1987.
G 37. There is no merit in the contention of the respondents that
there was no enquiry and satisfaction of the authorities as to “failure of
heirs” before initiating proceedings under the Escheats Act. As pointed
out earlier, the Sub-Divisional Officer, Khetri has sent a report dated
16.02.1987 to the District Collector, Jhunjhunu that Sh. Raja Sardar Singh
H expired in Mumbai on 28.01.1987 without any legal heir and that he has
STATE OF RAJASTHAN AND ORS. 879
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
executed one Will by virtue of which Khetri trust was constituted. The A
SDO’s report also states about the absence of brother or sister or any
child or other legal heirs. The report of the SDO reads as under:-
OFFICE OF THE SUB DIVISIONAL OFFICER KHETRI
No.51/P.A./87 Dated 16.2.1987
B
To,
District Collector, Jhunjhunu
Sir,
That as per the information received vide letter dated 11.2.1987
C
of Rajya Sabha, New Delhi, Raja Bahadur Shri Sardar Singh Khetri
has expired in Mumbai on 28.1.1987 without any legal heir. He
has executed only one will by virtue of this a Khetri Trust was
constituted, the trust having four trustees and late Sardar Singh Ji
has donated his movable and immoveable property to the Trust.
D
Shri Sardar Singh has no brother or sister nor any child. He has
divorced his wife. His father Amar Singh was adopted from Alsisar
as his grandfather Ajit Singh had only one son Jai Singh, who died
in minor age. Grandfather Shri Sardar Singh had two daughters
one of them was married at Shahpura and other was married at
Pratapgarh and both were expired, but there is a possibility of E
their children be alive.
Sd/-Mangilal
38. The State Government through Tehsildar, Jaipur issued a notice
dated 27.02.1987 to general public at large stating that the estate of Sh.
Raja Sardar Singh has been declared as escheat since he died without F
legal heirs. As seen from the communication of Naib Tehsildar dated
04.03.1987 and 07.03.1987 addressed to Sh. Nirbhay Singh, an enquiry
was conducted by Nair Tehsildar as to lawaris property of Sh. Raja
Sardar Singh. The letter dated 03.07.1987 from the Deputy Secretary to
District Collector, Jhunjhunu was in reference to the letter dated G
15.06.1987 sent by the District Collector, Jhunjhunu to the Deputy
Secretary by which the District Collector, Jhunjhunu had apprised about
the factual position of the investigation conducted by him in compliance
of the procedure laid down under Section 4 of the Escheats Act. There
is no merit in the contention of the respondents that the initiation of the
H
880 SUPREME COURT REPORTS [2019] 11 S.C.R.
A proceedings under the Escheats Act was done without following the
procedure laid down by the law and without enquiry and the finding as to
“failure of heirs”. The report of the SDO dated 16.02.1987 and the
letter of the District Collector, Jhunjhunu dated 15.06.1987 addressed to
the Government of Rajasthan shows that in compliance of the provisions
of the Escheats Act, an enquiry was conducted and the authorities satisfied
B
themselves as to “failure of heirs” before initiating action under Escheats
Act. The materials on record show that the proceedings under the
provisions of Escheats Act has been initiated only after making proper
enquiry about possible legal heirs of Sh. Raja Sardar Singh and on finding
about the absence of legal heirs, the authorities satisfied themselves that
C the properties are bona vacantia. In my view, due procedure was
followed by the concerned officials as per the Escheats Act following
the provisions of Section 4 of the Escheats Act and only after ascertaining
that there was “failure of heirs”, the inventories of the properties were
prepared and possession was taken over on all the vacant properties
and mangers were appointed for the requisite purposes.
D
39. Deceased died way back in the year 1987. Till this date, the
agnates have not instituted any suit or proceedings to establish their
status nor obtained any declaration from the competent authorities. In
the absence of any document declaring status of respondents No.4 to 8
as cognates/agnates of Sh. Raja Sardar Singh, State of Rajasthan cannot
E be faulted for initiating action under the Escheats Act, 1956 treating the
properties of Sh. Raja Sardar Singh as lawaris for want of heir or
successor or as bona vacantia. Moreover, it is not the case of the
respondents No.4 to 8 that they represent all the agnates. As discussed
earlier, no claimant came forward before the Tehsildar; only Nirbhay
F Singh who claimed as Manager of the Khetri Trust appeared before the
Tehsildar. Considering the facts and circumstances of the case, initiation
of proceedings under the Escheats Act cannot be said to be erroneous
warranting interference.
40. In Re: Compliance of the provisions of the Rajasthan
G Escheats Regulation Act, 1956:-
The provisions of the Rajasthan Escheats Act, 1956 regulate the
procedure for initiation of proceedings and making of enquiries in the
matter of lawaris properties vesting in the State of Rajasthan qua ultima
heres under Article 296 of the Constitution of India by escheat or as
H bona vacantia. The Act applies to the properties vesting in the State.
STATE OF RAJASTHAN AND ORS. 881
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
Section 2(4) of the Rajasthan Escheats Regulation Act, 1956 defines A
“property to which this Act applies” which reads as under:-
Section 2 – Definitions –(4) “Property to which this Act
applies” means any property vesting in the State qua ultima
heres under Article 296 of the Constitution of India by escheats
or as bona vacantia. B
Section 3 of the 1956 Act shows that the general superintendence
of the properties to which this Act applies vests in the Collector
and the Board can also give directions to the Collector. These
directions can be given for carrying out the provisions of the Act.
C
41. The Rajasthan Escheats Regulation Act is a complete Code
in itself. The preamble sets out the scope and ambit of the statute. The
Act being a comprehensive legislation sets out the entire scheme relating
to the constitutional power under Article 296 and provides for:- a) the
making of enquiries; b) for custody and disposal; and c) properties vesting
in the State under Article 296 of the Constitution. The scope of the Act D
is to:- a) determine the rightful owner and to restore the property in his/
her favour; b) secure and safeguard the property pending under such
enquiry; c) adjudicate upon the contesting claims prima facie, at the
same time enabling the properties to avail remedies of Civil courts; and
finally d) pass orders of vesting after giving opportunities to everybody E
and after holding a detailed enquiry.
42. When we consider the scheme of the Act, in particular, Section
4, it provides that when the Tehsildar receives information as to the
existence within Tehsil of any property to which this Act applies, whether
or not in the possession of any person, the Tehsildar shall – F
a. ascertain whether or not there is any person entitled to such
property;
b. prepare an inventory thereof showing the prescribed particulars;
c. take over possession of it in the prescribed manner; G
-and-
d. make a report of the Collector.
H
882 SUPREME COURT REPORTS [2019] 11 S.C.R.
A As per the proviso to Section 4 of the Act, if the property is in the
‘present possession of any person’, such possession shall not be
disturbed.
43. As pointed out earlier, as against the order passed by the
Collector (dated 02.02.2016), the Trust has preferred the appeal before
B the Board of Revenue and the same is pending, all the questions including
the compliance of the provisions of the Escheat Act, 1956 are raised in
the said appeal. We would not have ventured to go into the merits of the
contention as to the compliance or otherwise of the provisions of the
Escheats Act, 1956; since the High Court has quashed the
communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987
C passed by the Deputy Secretary, Revenue, District Collector and the
Tahsildar respectively holding that the provisions of the Escheats Act,
1956 has not been complied with, we are called upon to examine the
merits of the contentions raised and examine whether there was proper
compliance of the provisions of the Escheats Act, 1956 for initiation of
D the proceedings of the Act. If we do not examine the merits of the
contention raised in this appeal, the findings of the High Court would
stand and the appropriate forum will not be in a position to consider the
matter on merits. I have to therefore necessarily proceed to examine
the merits of the contention advanced by the parties as to the compliance
or otherwise of the provisions of Escheats Act, 1956.
E
44. As discussed infra, the provisions of Section 4 of the Rajasthan
Escheats Regulation Act have been substantially complied with. As pointed
out earlier in para (4), a public notice was issued inviting the interested
persons to present themselves before the Tehsildar and produce materials
to prove their right. The Naib Tehsildar thereafter issued notice dated
F 07.03.1987 to Nirbhay Singh directing him to produce all documents
with proof. From the materials, it is seen that the inquiry which was
conducted by the Tehsildar is also in compliance of Section 4 of the Act.
45. As elaborated earlier in paras (4) to (6), a public notice was
issued on 27.02.1987 by the Tehsildar, Jaipur calling upon persons who
G claim interest or right in the properties of Sh. Raja Sardar Singh to present
himself before his office on 04.03.1987 with entire documents or
otherwise, it would be presumed that the Khetri House and other
properties of Sh. Raja Sardar Singh are lawaris and the same shall be
taken to the custody of the State. Further, it can be seen from the letter
H dated 04.03.1987 that the Naib Tehsildar, Jaipur was appointed as Inquiry
STATE OF RAJASTHAN AND ORS. 883
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
Officer of all properties of Sh. Raja Sardar Singh situated at Jaipur. The A
Tehsildar issued a notice to Nirbhay Singh/Manager of Hotel Khetri
House on 07.03.1987 calling upon him to personally appear and produce
the entire records of the properties under his occupation. He was also
informed that if he does not appear and produce the documents, it would
be presumed that the properties are lawaris. After referring to the letter
B
of the Collector dated 03.07.1987, the Dy. Secretary to the State
Government directed appellant No.3-Collector, Jhunjhunu to initiate
proceedings under the Act as it was deemed that the deceased died
intestate. The letter dated 03.07.1987 from Dy. Secretary to District
Collector, Jhunjhunu to initiate proceedings under the Act was in reference
to the letter dated 15.06.1987 sent by the District Collector, Jhunjhunu to C
the Dy. Secretary by which the District Collector had apprised about the
factual position of the investigation conducted by it in view of the
procedure laid down under Section 4 of the Act. By letter dated
22.07.1987, the Tehsildar Khetri was directed to initiate proceedings
under the Rajasthan Escheats Act with respect to properties situated in
D
Khetri and also to collect details of properties situated outside the State
of Rajasthan. By attachment order dated 03.08.1987, immovable
properties i.e. agricultural lands and orchards in village Hada Fatehpura
was taken over. By cumulative reading of the contents of above various
proceedings, it is clear that in accordance with provisions of the Act, the
concerned officials first made inquiry to ascertain whether there was E
any legal heir of Sh. Raja Sardar Singh; issued notices and then prepared
the inventories and after the spot inspection, attached the properties and
taken over the possession of the vacant properties and submitted report
to the Collector. The provisions of the Escheats Act, 1956, in our view,
has been substantially complied with.
F
46. The learned Senior counsel for the respondents submitted that
the Khetri Trust was in possession of the property of Sh. Raja Sardar
Singh and the possession was taken over from the Trust by the Tehsildar
in purported proceedings under Section 4 of the 1956 Act. It was further
contended that even assuming that the Act was applicable, the possession
was taken over from the Trust thereby contravening the proviso to Section G
4(1) of the Act which provides that “if such property is in the present
possession of any person, such possession shall not be
disturbed”. Contending that the Trust was in possession of the property
of Sh. Raja Sardar Singh and that the State Government through Tehsildar
H
884 SUPREME COURT REPORTS [2019] 11 S.C.R.
A had taken over the possession, the learned Senior counsel for the
respondents inter-alia made the following submissions:-
• Immediately after the demise of Sh. Raja Sardar Singh on
28.01.1987, vide letter dated 14.02.1987, Parmeshwar Prasad,
one of the Trustees addressed letter to SDO, Khetri informing
B about the death of Sh. Raja Sardar Singhand his bequest in
favour of the Trust.
• Nirbhay Singh vide letter dated 05.03.1987 informed the Naib
Tehsildar, Jaipur that the possession of the properties of Sh.
Raja Sardar Singh lied with the Trust and that Nirbhay Singh is
C the Manager of the Trust and was in actual possession of
movable and immovable properties in Khetri House where the
Hotel was being run.
• The Spot Possession Report dated 31.07.1987 indicates that
D the Trust is in “present possession” of the Khetri House i.e.
there were five seals of Khetri Trust on the ground floor; three
seals of Khetri Trust on the upper floor; seals of Khetri Trust
were found affixed on both the gates and supervisors have
been deputed for supervision thereof. It also states that keys of
the kothis are with the office of Khetri Trust in Delhi.
E
The learned Senior counsel submitted that in view of the above
facts, it is beyond any doubt that the properties of the deceased were
“in present possession of the Trust and that such possession was
not only disturbed but destroyed by the State taking over the
possession of the properties”.
F 47. Of course, as per the Spot Inspection Report dated 31.07.1987,
the property – Khetri House was found with locks with seal of Khetri
Trust was affixed. As per the Spot Inspection Report nobody was found
in physical possession of the property at the time of inspection. Upon
consideration of these submissions inter-alia, the questions arising for
G determination are (i)Whether Khetri Trust was in “present possession”
of the property at the time of inspection and whether mere affixing of
seal could lead to all inference that the Khetri Trust was in present
possession?; (ii) Whether summoning of Nirbhay Singh was in his
capacity as Manager of the Hotel Khetri or agent or representative of
Khetri Trust?; and (iii) Whether the order passed by the District Collector
H
STATE OF RAJASTHAN AND ORS. 885
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
under Section 6 is in due compliance of the provisions of the Act of A
Rajasthan Escheats Act, 1956?
48. As against the order passed by the District Collector on
02.02.2016, the appeal is preferred before the Board of Revenue and
the same is pending while upholding the invocation of the provisions of
Rajasthan Escheats Regulation Act, 1956 in my considered view, the B
above contentions ought to be raised before the Board of Revenue and
the Board of Revenue shall consider the same on its own merits.
49. Challenging the initiation of proceedings under Escheats Act
1956, the Trustees have filed Writ Petition No.2713 of 1987 way back in
the year 1987 and the same was pending for about three decades. In C
2001, the writ petitioners themselves sought for an adjournment on the
ground of pendency of probate case before the Delhi High Court and
the High Court also adjourned the writ petition sine-die. Thereafter, the
writ petition remained pending for quite some time. As discussed earlier,
three communications/orders dated 03.07.1987, 22.07.1987 and
03.08.1987 and subsequently, number of other orders came to be passed D
for taking possession of the properties of Sh. Raja Sardar Singh. The
Delhi High Court dismissed the probate petition filed by the Khetri Trust
by the judgment dated 03.07.2012 and the appeal filed by the Trust against
the said judgment has been admitted by the Division Bench of the Delhi
High Court and the same is pending. Under Section 6 of the Escheats E
Act, 1956, the Collector passed the order on 02.02.2016 dismissing the
objections of the Trust on the basis of the order passed by the Delhi
High Court in probate proceedings. The claim of agnates was also rejected
by the District Collector on the ground that they had withdrawn their
objections in the probate proceedings and are thus estopped from making
any further claim. F
50. Challenging the order passed by the District Collector, appeal
has been preferred before the Board of Revenue and the same is pending.
The Board of Revenue stayed the order of the District Collector by the
order dated 12.04.2016. It was thereafter, the High Court had taken up
the Writ Petition No.2713 of 1987 and passed the impugned order quashing G
the three communication/orders. When the appeals were pending before
the Delhi High Court and before the Board of Revenue involving disputed
questions, the High Court, in my view, ought to have directed the parties
to avail efficacious alternative remedy. The High Court, in my view,
ignoring the subsequent events that the respondents-agnates have H
886 SUPREME COURT REPORTS [2019] 11 S.C.R.
A withdrawn their objections in the probate petition and dismissal of the
probate petition and the appeals pending before the Delhi High Court
and appeal pending before the Board of Revenue erred in quashing the
three communications/orders and directing the State to hand over the
possession of the properties to the respondents.
B 51. Under Article 226 of the Constitution of India, the High Court
having regard to the facts of the case has a discretion to entertain or not
to entertain a writ petition. But the High Court has imposed upon itself
certain restrictions; one of which is an effective and efficacious remedy
available. When efficacious alternative remedy is available, the High
Court would not normally exercise the jurisdiction. However, alternative
C remedy will not be a bar at least in three instances:-
(i) where writ petition is filed for enforcement of any of the
fundamental rights;
(ii) where there is a violation of the fundamental right or principles
D of natural justice; and
(iii) where the orders or proceedings are wholly without jurisdiction
or the vires of an Act is challenged; [vide Harbanslal Sahnia
and Another v. Indian Oil Corpn. Ltd. and Others(2003)
2 SCC 107].
E 52. Notwithstanding the availability of alternative remedy, having
regard to the facts of the case, the High Court has a discretion to entertain
or not to entertain a writ petition. But in the present case, while
considering correctness of the communications/orders issued way back
in 1987, the High Court should have taken into consideration the
F subsequent events viz., the judgment passed by the High Court of Delhi
in Testamentary Case and the order passed by the District Collector
under Section 6 of the Act and the pendency of appeals before the High
Court and Board of Revenue. Challenge to the initiation of the proceedings
under the Rajasthan Escheats Regulation Act, 1956 is already a subject
matter of appeal before the Board of Revenue. Based on the Will, whether
G the Trust has a right to claim the properties of Sh. Raja Sardar Singh is
also a subject matter of appeal before the Delhi High Court. While so,
exercising jurisdiction under Article 226 of the Constitution of India, the
High Court ought not to have gone into the correctness of three notices
issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves
culminated into various final orders. The impugned order takes away
H
STATE OF RAJASTHAN AND ORS. 887
v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]
the very foundation of the order passed by the District Collector which A
is subject matter of the appeal pending before the Board of Revenue.
There are serious disputed questions of facts especially whether there
was contravention of Proviso to Section 4 and in such view of the matter,
the High Court ought not to have gone into the correctness of three
communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987.
B
The High Court, in my considered view, ought to have directed the parties
to work out the remedy before the competent court/authority.
53. I summarise my conclusion as under:-
(i) Since the Testamentary Case No.26 of 1987 then pending
before the High Court of Delhi for grant of probate of the C
Will, has been dismissed and the testamentary appeal is
pending before the High Court, there is no rightful owner
as per the Will.
(ii) Having withdrawn their objections in the probate
proceedings, respondent Nos.5 to 9 are estopped from D
making any claim in the properties of Sh. Raja Sardar Singh
till they establish their right in a court of law.
(iii) The provisions of the Escheats Act, 1956 was initiated only
after enquiring about the legal heirs of Sh. Raja Sardar Singh
and before initiation of proceedings under the Escheats Act, E
the authorities satisfied itself as to “failure of heirs” of Sh.
Raja Sardar Singh and that the properties are bona
vacantia.
(iv) The persons claiming as agnates have not established their
status in a court of law recognising them as rightful owners. F
(v) There was issuance of public notice and also to private
individuals, before the State of Rajasthan took over the
estate of Sh. Raja Sardar Singh by escheat. The provisions
of the Rajasthan Escheats Regulation Act, 1956 have been
substantially complied with.
G
(vi) The State of Rajasthan was right in treating the property as
‘bona vacantia’and right in initiating the proceedings under
the Rajasthan Escheats Regulation Act, 1956.
H
888 SUPREME COURT REPORTS [2019] 11 S.C.R.
A (vii) Challenge to the initiation of the proceedings under the
Rajasthan Escheats Regulation Act, 1956 is already a
subject matter of appeal before the Board of Revenue.
Based on the Will, whether the Trust has a right to claim
the properties of Sh. Raja Sardar Singh is also a subject
matter of appeal before the Delhi High Court. While so,
B
exercising jurisdiction under Article 226 of the Constitution
of India, the High Court ought not to have gone into the
correctness of three notices issued on 03.07.1987,
22.07.1987 and 03.08.1987 which themselves culminated
into various final orders.
C (viii) There are serious disputed questions of facts especially
whether there was contravention of Proviso to Section 4
and in such view of the matter, the High Court ought not to
have gone into the correctness of three communications/
orders dated 03.07.1987, 22.07.1987 and 03.08.1987.
D 54. In the result, the impugned order of the High Court in Writ
Petition No.2713 of 1987 is set aside and this appeal is allowed with the
following directions and observations:-
(i) The questions whether the Trust was in present
possession of the Khetri House and other properties and
E that it ought not to have been disturbed in terms of proviso
to Section 4 of the Act, have to be examined and determined
by the Board of Revenue before whom the appeal against
the order of the District Collector is pending;
(ii) The question whether there is contravention of proviso to
F Section 4 of the Act, has to be determined by the Board of
Revenue in the appeal pending before the Board of
Revenue. The further question whether there was due
compliance of Section 6 of the Act is also to be examined
by the Board of Revenue?
G Whether Khetri Trust has a right to claim the properties of Sh.
Raja Sardar Singh based on the Will dated 30.10.1985, is a subject matter
of appeal before the Delhi High Court. It is made clear that this judgment
and also the conclusion of the Board of Revenue will, however, be subject
to the decision of the Delhi High Court in Testamentary Appeal pending
before the Delhi High Court. Parties shall bear their respective cost.
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 889
AND ORS.
INDIRA BANERJEE, J. A
I have gone through the Judgment of my esteemed sister, but I
have not been able to persuade myself to agree that this appeal be allowed.
2. This appeal is against a Judgment and Order dated 17.11.2016
passed by the Jaipur Bench of the High Court of Judicature of Rajasthan,
allowing a writ petition being Civil Writ Petition No.2713 of 1987 filed by B
the respondents, who claim to be the trustees under a Will executed by
Late Raja Bahadur Sardar Singh of Khetri, (hereinafter referred to as
‘Raja Bahadur’) and directing that the properties left behind by Raja
Bahadur be made over to the writ petitioners.
3. The facts giving rise to the writ petition have been narrated in C
the judgment of my esteemed sister. Raja Bahadur, a childless widower
died on 28.1.1987 leaving inter alia the following properties:-
“S.No. Details of the District Name of the
property village &
township D
1 Khetri House, 5
Sardar Patel Road Delhi New Delhi
2 Hotel Khetri House Jaipur Jaipur city
3 Kothi Sukh Mahal Jhunjhunu Khetri E
4 Kothi Jai Niwas Jhunjhunu Khetri
5 Kothi Amar Hall Jhunjhunu Khetri
6 Nizamat Tehsil
Building Jhunjhunu Khetri F
7 Ajit Niwas Bagh
Farm Jhunjhunu Khetri
8 Record Room Jhunjhunu Khetri
G
9 Haveli Prohitji Wali Jhunjhunu Khetri
10 Dera Brijlalji Wali Jhunjhunu Khetri
11 Farrash Khana Jhunjhunu Khetri
12 Chabutra inside Town Jhunjhunu Khetri
H
890 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 13 Tin shed Mela Gugaji Jhunjhunu Mehara
Jatuwas
14 Sabka Patwar Ghar Jhunjhunu Papurna”
4. On 30.10.1985, that is about one year and three months before
B his death, Raja Bahadur had executed a Will, bequeathing his properties
to a Trust to be known as Khetri Trust, of which persons named in the
Will were to be Trustees. On 31.1.1987, that is about three days after
the death of Raja Bahadur, the Khetri Trust was created.
5. On 14.2.1987, Mr. Parmeshwar Prasad, the original writ
C petitioner and one of the trustees named in the Will informed the
Competent Authority, being the Sub Divisional Officer (SDO), khetri
that Raja Bahadur had expired on 28.1.1987. An attested copy of the
Will executed by Raja Bahadur was forwarded to the SDO.
6. By a letter dated 16.2.1987, the SDO Khetri informed the
D District Collector, Jhunjhunu of the death of Raja Bahadur and the Will
said to have been executed by him. In the aforesaid letter the SDO
indicated the possibility of existence of cognates of the deceased.
7. It is the case of the appellants that, on 24.2.1987, one Dwarka
Prasad Parik filed an application before the Tehsildar, stating that Raja
Bahadur had died without heirs, leaving several valuable properties, and
E
praying that the properties of Raja Bahadur be declared as properties of
the State.
8. On 27.2.1987, the Tehsildar, Jaipur published a Public Notice,
calling upon persons interested in the properties of Late Raja Bahadur
to appear before him. On 4.3.1987, the Tehsildar issued notice to Nirbhay
F
Singh of his appointment as Inquiry Officer to enquire about the movable
and immovable properties of Late Raja Bahadur Sardar Singh and
directed the said Nirbhay Singh to produce all documents before him
with proof on 12.3.1987, failing which it would be assumed that all the
properties in possession of Nirbhay Singh were unclaimed.
G 9. In the meanwhile, on 10.3.1987 the trustees filed a petition
being Probate Petition No.26 of 1987 before the Delhi High Court for
probate of the Will said to have been executed by Late Raja Bahadur.
10. One Arjun Singh, father of the respondent No.8, claiming to
be an agnate of the deceased, and others filed objections opposing the
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 891
AND ORS. [INDIRA BANERJEE, J.]
grant of probate of the Will executed by Raja Bahadur. A
11. In the meanwhile, by a letter dated 12.3.1987, Nirbhay Singh
responded to the said notice dated 4.3.1987, reiterating that pursuant to
the Will executed by Raja Bahadur, the trustees of Khetri Trust were in
real and lawful possession of the entire properties of Late Raja Bahadur
Singh, and that they had initiated proceedings for probate being B
Testamentary Case No.26 of 1987 in the Delhi High Court.
12. By a communication dated 3.7.1987 addressed to District
Collector, Jhunjhunu the Deputy Secretary to the Government of
Rajasthan informed the District Collector that Raja Bahadur was to be
deemed to have died intestate and the Hindu Succession Act would be C
applicable to the properties left by him.
13. By an Order No.2585/Nyaya/07 dated 22.7.1987, the Collector,
Jhunjhunu directed the Tehsildar, Khetri to initiate proceedings under the
Rajasthan Escheats Regulation Act, 1956 (hereinafter referred to as
“The Escheats Act”) in respect of the properties left by Late Raja D
Bahadur.
14. On 31.7.1987, the Tehsildar took over possession of the
properties of Raja Bahadur and prepared a Spot Possession Report. On
3.8.1987, possession was taken of the properties specified in a compliance
report dated 3.8.1987 submitted by the Tehsildar to the Collector. On E
29.9.1987, the Tehsildar, Jaipur took possession of Khetri House Hotel
from Nirbhay Singh.
15. The respondents and/or their predecessor-in-interest filed the
abovementioned writ petition challenging the initiation of proceedings
under the Escheats Act and the consequential action of taking over F
possession of the properties of Raja Bahadur under the provisions of the
said Act, which has been allowed by the judgment and order impugned
in this appeal, and in my view, rightly.
16. The Escheats Act as per the preamble of the said Act, is an
Act to regulate the making of enquiries in the matter of properties vesting
G
in the State of Rajasthan qua ultima heres under Article 296 of the
Constitution of India or escheats or as bona vacantia and provides for
custody and disposal thereof.
17. A perusal of the Preamble makes it amply clear that the
Escheats Act applies only to properties vesting in the State qua ultima
H
892 SUPREME COURT REPORTS [2019] 11 S.C.R.
A heres under Article 296 of the Constitution of India as bona vacantia.
18. The vesting of property in the State as bona vacantia under
Section 296 for failure of heirs, is sine qua non for the applicability of
the Escheats Act and statutorily prescribed jurisdictional requirement
for Section 4 read with Section 2(4) of the said Act.
B 19. Section 2(4) of the Escheats Act defines “property to which
this Act applies” to mean any property vesting in the State qua ultima
heres under Article 296 of the Constitution of India by escheats or as
bona vacantia.
20. As rightly argued by Dr. Singhvi, appearing on behalf of the
C respondents, Section 2(4) refers to property vesting in the State and not
to property which might vest in the State at a future point of time.
21. Section 4(1) of the Escheats Act provides:
4. Report by Tehsildar.:-(1) Upon receipt of information
D as to the existence within Tehsil of any property to which
this Act applies, whether or not in the possession of any
person, the Tehsildar shall-
(a) Ascertain whether or not there is any person entitled
to such property.
E (b) Prepare an inventory thereof showing the
prescribed particular.
(c) Take over possession of it in the prescribed manner,
and
(d) Make a report to the collector:
F
Provided that if such property is in the present
possession of any person, such possession shall not
be disturbed.
In my considered opinion, initiation of proceedings under the
G Escheats Act is subject to determination, at least prima facie, of the
jurisdictional fact that the properties in question had acquired the character
of “abandoned property”.
21. The expression “escheat” or “bona vacantia” has not been
defined in the Escheats Act. However, the Escheats Act having been
enacted in terms of Article 296 of the Constitution, the expressions are
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 893
AND ORS. [INDIRA BANERJEE, J.]
to be understood in the sense in which they have been used in Article A
296 of the Constitution, set out hereinbelow for convenience:-
“296. Property accruing by escheat or lapse or as bona
vacantia Subject as hereinafter provided any property in the
territory of India which, if this Constitution had not come
into operation, would have accrued to His Majesty or, as the B
case may be, to the Ruler of an Indian State by escheat or
lapse, or as bona vacantia for want of a rightful owner, shall,
if it is property situate in a State, vest in such State, and shall,
in any other case, vest in the Union: Provided that any
property which at the date when it would have so accrued to
His Majesty or to the Ruler of an Indian State was in the C
possession or under the control of the Government of India
or the Government of a State shall, according as the purposes
for which it was then used or held were purposes of the Union
or a State, vest in the Union or in that State Explanation In
the article, the expressions Ruler and Indian State have the D
same meanings as in Article 363”
22. Article 296 does not leave any discretion for determination of
what might constitute escheat or bona vacantia. Article 296 makes it
clear that the principles applicable in this regard, prior to commencement
of the Constitution of India, would continue. E
23. Law relating to bona vacantia provides for conservation of
abandoned properties. The nature of the property to which the Escheats
Act applies must necessarily be abandoned property in the sense that
there should be no claimants to the property, as argued by Dr. Singhvi.
24. The question is, what exactly is “abandoned Property” or what F
property is “bona vacantia”. In Bombay Dyeing Manufacturing Co.
Ltd. vs. State of Bombay1, a Constitution Bench of this Court while
deciding the challenge to the constitutional validity of the Bombay Labour
Welfare Fund Act (40 of 1953), observed and held that the expression
“abandoned property”, or to use the more familiar term “bona vacantia”, G
comprises properties of two different kinds, those which come in by
escheat and those over which no one has a claim. The relevant paragraph
of the judgment is extracted in the judgment of my esteemed sister.
1
AIR 1958 SC 328 H
894 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 25. Property is subject to the right of escheat, where upon intestacy,
there is no heir. Escheat was a right, whereby land of which there was
no longer any tenant, returned by reason of tenure, to the lord by whom,
or by whose predecessors in title, the tenure was created.
26. In A-G of Ontario v Mercer2,Lord Selborne LCheld “Escheat
B is a term of art and derived from the French word escheat that is
cadere excidere or accidere and signifyeth property when by
accident the lands fall to the lord of whom they are holden”. Escheat
was an incident of feudal tenure and was based on the want of tenant to
perform the feudal services.
C 27. As per Paragraph 1437 of the fourth edition of Halsbury’s
Laws of England, (Vol 17) escheat propter defectum tenentis occurred
in the case of intestate death, where the last owner of the land died
intestate, without any heir. In this event, a person became possessed of
lands as purchaser, and died intestate without issue; the Lord or the
Crown, as the case might be, re-entered in right of his or its former
D ownership, the estate which was granted, having come to an end.
28. As very rightly observed and held by my esteemed sister, the
doctrine of escheats postulates that where an individual dies intestate
and does not leave behind any heir, who is qualified to succeed to the
property, the property devolves on the Government.
E
29. An abandoned property is a property for which no claim has
been made for a substantially long period. The length of the period for
which no claim is made, should be such as to raise the presumption that
the property is abandoned.
F 30. In Bombay Dyeing Manufacturing Co. Ltd. (supra), this
Court found that initiation of escheat proceedings on the ground of
absence of claim for a period of three years was unconstitutional.
31. Dr. Singhvi submitted, and in my view, rightly, that if during an
enquiry to ascertain whether property was abandoned or not, any claim
was made, the proceedings had to be dropped.
G
32. If no claims are made or if the State arrives at the opinion that
all claims to the property are mala fide, only then may it apply to the
2
H A-G of Ontario v Mercer (1883) 8 App Cas 767 at 772
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 895
AND ORS. [INDIRA BANERJEE, J.]
Court for final determination as to the nature of the property, and A
thereafter initiate escheat proceedings.
33. In the proceedings before the Court, the Court would
necessarily have to arrive at a finding that the property had been
abandoned and that there were no heirs who could come forward to
claim the properties. To put it differently, there would have to be total
B
and absolute failure of heirs.
34. As held by this Court in State of Punjab v. Balwant Singh &
others (supra), quoted by my esteemed sister, the State Government
does not take the property as a rival or preferential heir of the deceased,
but as the lord paramount, when there is no heir qualified to succeed.
C
35. The proposition that escheat is a doctrine that recognises State
as a paramount sovereign, in a clear case of failure of heirs, and that
when a claim of escheat is put forward by the Government, the onus lies
heavily on the Government to prove the absence of any heir anywhere
in the world, finds support from the judgments of this Court in Kutchi
Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust vs. D
Collector, Haridwar & Ors.3 and State of Bihar vs. Radha Krishna
Singh 7 Ors.4 referred to by my esteemed sister.
36. As noted by my esteemed sister, the Single Bench of Delhi
High Court had dismissed Testamentary Case No. 26 of 1987 on 3.7.2012
holding that the executors of the will had not been able to prove the Will
dated 30.10.1985 and the codicil dated 7.11.1985. E
37. The judgment and order dated 3.7.2012 dismissing
Testamentary Case no. 26/1987 is of no consequence. It is well settled
that if a will fails, the property has to be treated as intestate, which
devolves upon the natural heirs in accordance with the applicable laws
of succession. As observed by my esteemed sister, the dismissal of the F
probate case might mean that the Trust cannot lay claim to the properties.
However, that does not make the properties escheated properties.
38. If, upon enquiry under Section 6 of the Escheats Act, the
Collector finds that the property in question is not of the nature to which
the Escheats Act applies, he is obliged to order the proceedings to be
G
closed and the property to be allowed to remain with the person in whose
possession it might then be, or if possession thereof has been taken
under Section 4(c) or Section 6, the Collector is obliged to restore the
3
(2017) 16 SCC 418
4
(1983) 3 SCC 118 H
896 SUPREME COURT REPORTS [2019] 11 S.C.R.
A property to the person from whom possession was so taken, as mandated
by Section 6 (9)a) of the Escheats Act.
39. It is true that the respondent trustees filed the writ petition
basing its claim on the Will. The locus standi of the writ petitioners was
never in issue. By entertaining the writ petition the High Court, in effect,
B accepted that the respondent trustees of the Trust had locus standi to
file the writ petition, and rightly so.
40. The writ petition filed by the Trustees having been entertained
and kept pending, the High Court would not have been justified in
dismissing it on the ground that the Trust had no right to lay claim in the
C properties in question, in view of dismissal of the probate case, more so,
when the appeal filed by the Trustees is still pending. The High Court
was right in not dismissing the writ petition.
41. The fact that the High Court had earlier, on the prayer of the
Trustees, adjourned the writ petition sine die, to await the decision in the
D Probate application, did not debar the High Court from exercising its
writ jurisdiction after disposal of the Probate case. At the cost of repetition,
it is reiterated that even though the Probate case has gone against the
trustees, the appeal was and is still pending before the Division Bench,
as noted by my esteemed sister.
42. It is true that the Khetri Trust can claim a right over the property
E
in terms of the will executed by Raja Bahadur, only if it succeeds in the
appeal pending in Delhi High Court. This in my view, did not denude the
trustees of the locus standi to pursue the writ petition challenging the
initiation of proceedings under the Escheats Act.
43. As held by this Court in State of Bihar vs. Radha Krishna
F
(supra), the onus to establish that a property is bona vacantia is on the
Government. The burden of proof is heavy. This proposition also finds
support from Kutchi Lal Rameshwar Ashram Trust (supra).
44. The threshold requirements laid down by this Court upon
interpretation of Article 296 are the conditions precedent for initiation of
G proceedings under the Escheats Act. The authorities would have to be
satisfied that the properties had been abandoned and that there were no
known claimants to the said properties. The purpose of the legislation is
to conserve abandoned property and safeguard the property for the
benefit of the rightful claimant who may come later.
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 897
AND ORS. [INDIRA BANERJEE, J.]
45. Mr. Paras Kuhad, learned senior counsel appearing on behalf A
of some of the respondents adopted the arguments advanced by Dr.
Singhvi and further submitted, and rightly, that before the Collector can
apply to the Court for vesting or custody of the property in terms of the
Section 6(7) and 6(9) of the Escheats Act, the following tests should be
satisfied.
B
“(i) The case should not involve complicated questions of law as
to title or status which has not previously been adjudicated by a
Civil Court of competent jurisdiction.
(ii) There should not be claimants to the property.
(iii) The property should be of the nature to which the Escheats C
Act applies i.e., bona vacantia and/or in other words abandoned
property.
(iv) The last owner should have died intestate without leaving
any known heirs. In other words there has to be a complete and
absolute failure of heirs and thus any possibility of claim being D
made to the property by any person.
(v) A claim made pursuant to a proclamation issued under the
Escheats Act should prima facie be not maintainable. If a claim
is prima facie maintainable even though the claim may not have
been established, no application for vesting or custody can be E
made.
(vi) Even if no claim is filed, the Collector should be satisfied that
there is no person entitled to claim the property. In other words,
there should be no person entitled to claim the property irrespective
of whether there was any claim to the property and irrespective F
of whether the claim, if any, could be established.
(vii) The Collector is satisfied that it is a bona fide case of property
vesting in the State as ultima heres under Section 296 of the
Constitution of India by escheat or as bona vacantia. The vesting
of the property in the State as ultima heirs by escheat or as bona G
vacantia must positively be established and not likely presumed.”
46. Shri Raja Bahadur Singh being a Hindu by religion was governed
by the Hindu Succession Act, 1956. The relevant provisions of the Hindu
Succession Act are as follows:-
H
898 SUPREME COURT REPORTS [2019] 11 S.C.R.
A “8. General rules of succession in the case of males.¯The
property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter:¯
(a) firstly, upon the heirs, being the relatives specified in
class I of the Schedule;
B (b) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then
upon the agnates of the deceased; and
C (d) lastly, if there is no agnate, then upon the cognates of the
deceased.
9. Order of succession among heirs in the Schedule.—Among
the heirs specified in the Schedule, those in class I shall take
simultaneously and to the exclusion of all other heirs; those
D in the first entry in class II shall be preferred to those in the
second entry; those in the second entry shall be preferred to
those in the third entry; and so on in succession.
10. Distribution of property among heirs in class I of the
Schedule.—The property of an intestate shall be divided
E among the heirs in class I of the Schedule in accordance with
the following rules:—
Rule1.—The intestate’s widow, or if there aremore
widows than one, all the widows together, shall take
one share.
F
Rule2.—The surviving sons and daughters and the
mother of the intestate shall each take one share.
Rule 3.—The heirs in the branch of each pre-deceased
son or each pre-deceased daughter of the intestate shall
G take between them one share.
Rule 4.—The distribution of the share referred to in Rule
3—
(i) among the heirs in the branch of the pre-deceased
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 899
AND ORS. [INDIRA BANERJEE, J.]
son shall be so made that his widow (or widows together) A
and the surviving sons and daughters get equal
portions; and the branch of his pre-deceased sons gets
the same portion;
(ii) among the heirs in the branch of the pre-deceased
daughter shall be so made that the surviving sons and B
daughters get equal portions.
11. Distribution of property among heirs in class II of the
Schedule.—The property of an intestate shall be divided
between the heirs specified in any one entry in class II of the C
Schedule so that they, share equally
12. Order of succession among agnates and cognates.—The
order of succession among agnates or cognates, as the case
may be, shall be determined in accordance with the rules of
preference laid down hereunder:— D
Rule 1.—Of two heirs, the one who has fewer or no degrees
of ascent is preferred.
Rule2.—Where the number of degrees of ascent is the same
or none, that heir is preferred who has fewer or no degrees
of descent. E
Rule3.—Where neither heir is entitled to be preferred to the
other under Rule 1or Rule 2 they take simultaneously.
xxx xxx xxx
13. Computation of degrees.—(1) For the purposes of F
determining the order of succession among agnates or
cognates, relationship shall be reckoned from the intestate to
the heir in terms of degrees of ascent or degrees of descent
or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed G
inclusive of the intestate.
(3) Every generation constitutes a degree either ascending
or descending.
xxx xxx xxx
H
900 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 29. Failure of heirs. - If an intestate has left no heir qualified
to succeed to his or her property in accordance with the
provisions of this Act, such property shall devolve on the
government; and the government shall take the property
subject to all the obligations and liabilities to which an heir
would have been subject.
B
xxx xxx xxx
30. Testamentary succession.—1*** Any Hindu may dispose
of by will or other testamentary disposition any property, which
is capable of being so 2[disposed of by him or by her], in
C accordance with the provisions of the Indian Succession Act,
1925 (39 of 1925),or any other law for the time being in force
and applicable to Hindus.
Explanation.—The interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a tarwad,
D tavazhi, illom, kutumbaor kavaruin the property of the tarwad,
tavazhi, illom, kutumbaor kavarushall, notwithstanding any-
thing contained in this Act or in any other law for the time
being in force, be deemed to be property capable of being
disposed of by him or by her within the meaning of this.”
E 47. The Expression “agnate” and “cognate” are defined in Section
3(a) and 3(c) respectively of the Hindu Succession Act to mean:-
“3(a)”agnate” - one person is said to be an “agnate”
of another if the two are related by blood or adoption
wholly through males:
F 3(b) …..
3(c) “cognate” - one person is said to be a cognate
of another if the two are related by blood or adoption
but not wholly through males.”
48. Under Section 29 of the Hindu Succession Act, the property
G of an interstate devolves on the Government, if the intestate has left no
heir qualified to succeed to his or her property, in accordance with the
provisions of the Hindu Succession Act. The Government is to take the
property subject to all obligations and liabilities to which an heir would
have been subject.
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 901
AND ORS. [INDIRA BANERJEE, J.]
49. It is not necessary for this Court to consider the correctness A
of the judgment and order of the Delhi High Court in the probate
proceedings, since the appeal therefrom is pending. However, no adverse
inference could have been drawn by reason of withdrawal of the
objections of the agnates and/or cognates of Raja Bahadur.
50. The inter se disputes, if any, between the agnates and/or B
cognates of Raja Bahadur and the legatees under his Will, are irrelevant
for the purpose of escheat proceedings.
51. The provisions of Escheats Act regulate the procedure for
initiation of the proceedings and making of enquiries in respect of
properties to which the Escheats Act applies, that is, ‘lawaris’ properties C
vesting in the State qua ultima heres under Article 296 of the Constitution
of India by escheat or bona vacantia, as rightly concluded by my esteemed
sister.
52. The Escheats Act applies to properties vesting in the State.
The Escheats Act is a complete Code which covers the power under D
Article 296 and provides for making of enquiries; custody and disposal
and for vesting of properties in the State. However, the condition
precedent for exercise of jurisdiction under the Escheats Act is subjective
satisfaction that the property vests by reason of intestacy and complete
failure of heirs.
E
53. The power under the Escheats Act can be exercised only
after the Tehsildar ascertains whether or not there is any person entitled
to the properties of the deceased. If the property is in possession of any
person, such possession is not to be disturbed. In the instant case, it is
the case of the respondents themselves that the properties of Raja Bahadur
were in the possession of the Trust through the Manager, Nirbhay Singh. F
54. The mere issuance of public notice by the Tehsildar, calling
upon persons claiming interest or right in the properties of Raja Bahadur
to appear in his office with documents, failing which it would be presumed
that the Khetri house and other properties of Raja Bahadur were lawaris,
does not absolve the Tehsildar of his obligation to enquire into whether G
there were any legal heirs.
55. There were claimants who objected to the grant of probate.
Even though these objectors might have withdrawn their objections to
the grant of probate, whatever be the reason, they did not resile from
H
902 SUPREME COURT REPORTS [2019] 11 S.C.R.
A their claim to be heirs of Raja Bahadur under the Hindu Succession Act.
56. The withdrawal of an objection to grant of probate tantamounts
to withdrawal of the grounds of objection to the Will and/or in other
words, retracting the allegations of the Will being procured, forged,
fabricated, fraudulent or created by exercise of undue influence.
B 57. The caveators who objected to grant of probate to the Will
might very well have been advised not to proceed in view of the weakness
of their case, or may be for other reasons That would not make any
difference to their status as agnates or cognates of the deceased testator.
58. In fact, even the ultimate failure of the probate proceedings or
C in other words, dismissal of the appeal would not attract the provisions
of the Escheats Act, unless there was a clear finding that Raja Bahadur
left no agnates or cognates and there was complete failure of heirs.
Once there were some heirs in the picture, it was not for the appellants
to protect the properties of Raja Bahadur. It was for the rightful heirs to
D recover the properties from those in possession thereof.
59. The mere failure of an application for probate would not attract
escheats. When a Will is not probated, the testamentary property is to
be deemed to be intestate property and would devolve upon successor,
if any, as per the general laws of succession. Unless there were complete
E failure of heirs, the Escheats Act would not be attracted.
60. It may be useful to refer to paragraph 597 of Volume 39 of the
fourth edition of Halsbury’s Laws of England extracted hereinbelow
for convenience:-
“597. Formerly, when a tenancy in fee simple came to an end for
F any reason, the land went back to the lord of whom the tenant,
and he was said to take by escheat. The commonest instances
were escheat for want of heirs (propter defectum sanguinis), which
occurred when a tenant in fee simple died intestate without leaving
an heir-at-law, and escheat on conviction of felony (propter
delictum tenentis), but both these have been abolished. Escheat
G
in other cases is still possible but rare. An example is where the
land is disclaimed by the trustee in bankruptcy of the former owner,
and another possible case is on the dissolution of a corporation
not governed by the Companies Act 1948.”
61. The condition precedent for initiation of proceedings under
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 903
AND ORS. [INDIRA BANERJEE, J.]
the Escheat Act is failure of heirs. In the absence of any finding of A
failure of heirs, proceedings could not have been initiated. Under Section
4, it is the duty of the Tehsildar to see that there is no one entitled to the
property. The proviso clearly prohibits the taking over of property or
disturbance of possession thereof, if the property is in the possession of
any one.
B
62. Apart from the fact that the proceedings could not be initiated
in the absence of satisfaction of complete failure of heirs to succeed to
the properties, Section 6 (7) mandates that if any enquiry involves a
complicated question of law as to title or status, which has not been
previously adjudicated upon by a Civil Court of competent jurisdiction,
and if there are two or more claimants in respect of the same property, C
the Collector may require any or all of the claimants to apply for a
succession certificate in respect of such property or to institute a suit for
declaration of title thereto, within such period not exceeding six months
in the aggregate, as the Collector might fix.
63. Furthermore, if the Collector finds that the property is not of D
the nature to which the Act applies, the Collector is obliged to close the
proceedings and allow the property to remain with the person in whose
possession it might be or if possession thereof has been taken under
Section 4 or Section 6, to be restored to the person from whom possession
was so taken. E
64. Significantly, in this case, the proceedings under the Escheats
Act were initiated and the orders/communications impugned in the writ
petition were issued, without any finding of complete failure of heirs. In
the absence of formation of the opinion of failure of heirs, the proceedings
initiated under the Escheats Act were wholly without jurisdiction. F
65. In Calcutta Discount Company vs. ITO, Companies District
I and Ors., reported in AIR 1961 SC 372, a Constitution Bench of this
Court held that when exercise of jurisdiction depends upon formation of
any particular opinion, then formation of that opinion is necessary before
acquiring jurisdiction. In such a case, it is open to an aggrieved person to G
challenge formation of the opinion in a writ proceeding on such grounds
as are available on this count.
66. In Union of India vs. Hindalco Industries, reported in (2003)
5 SCC 194, a show cause notice issued under the Central Excise Act
on the ground of incorrect valuation without recording a satisfaction that
H
904 SUPREME COURT REPORTS [2019] 11 S.C.R.
A the price was not the sale consideration or that the buyer was a related
person, was held to be without jurisdiction as there was no valid foundation
for ignoring the declared price.
67. It is reiterated at the cost of repition that the condition precedent
for exercise of jurisdiction is the existence of the jurisdictional fact of
B the properties in question being bona vacantia, in the absence of any
heirs. When existence of jurisdiction by an authority, depends upon
existence of a particular fact, the determination of such a fact is
preliminary to the exercise of jurisdiction. The existence of the fact has
to be decided at the threshold.
C 68. Where the jurisdiction of an authority depends upon a
preliminary finding of fact, the High Court is entitled, in an application
under Article 226, to determine upon its own independent judgment,
whether or not that finding is correct, as held by this Court in State of
Madhya Pradesh & Ors. vs. Sardar D.K. Jadav reported in AIR
1968 SC 1186 and Ujjambai vs. State of U.P. reported in AIR 1962
D SC 1621.
69. I am unable to persuade myself to agree with my esteemed
sister that the issuance of notices informing those interested in the
properties left by late Raja Bahadur, that if they did not appear and
produce documents, it would be presumed that the properties were
E lawaris, satisfies the conditions precedent for initiation of proceedings
under the Escheats Act.
70. The District Collector clearly erred in rejecting the claims of
agnates on the ground that they had withdrawn their objections in the
probate proceedings. Withdrawal of objections to the probate proceedings
F does not estop the agnates and/or cognates from claiming the property
upon failure of the probate application.
71. As observed by my esteemed sister, under Article 226 of the
Constitution of India, the High Court, having regard to the facts of the
case, has a discretion to entertain or not to entertain a writ petition.
G
72. The power of the High Court to issue prerogative writs is
wide. The Constitution does not place any limitation on such power.
However, the Courts have, through judicial pronouncements, evolved
self imposed restrictions on the exercise of power by the writ Court.
When an efficacious alternative remedy is available, the High Court
H
STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK 905
AND ORS. [INDIRA BANERJEE, J.]
does not normally exercise jurisdiction. However, when a writ petition A
has been entertained and kept pending for years, it would not be
appropriate to reject the writ petition only on the ground of existence of
an alternative remedy.
73. It would also be relevant to note that the remedy of appeal
availed by the Trustees was against the order of the Collector passed in B
2016 almost two decades after the writ petition had been filed. The
supervening circumstance of the order of the Collector and the appeal
therefrom, would not in my view, justify the dismissal of the writ petition
on the ground of existence of alternative remedy.
74. As noted by my esteemed sister, the writ petition filed in 1987 C
had been pending in the High Court for about three decades. Once the
writ petition had been entertained and kept pending, it should not be
rejected on the ground of existence of alternative remedy of appeal
before the Board of Revenue.
75. In deciding the question of maintainability of a writ petition in D
view of existence of alternative remedy, this Court cannot forget that
the power to issue prerogative writs under Article 226 of the Constitution
of India is plenary in nature. The High Court, having regard to the facts
of the case, has discretion to entertain or not to entertain a writ petition.
The existence or even invocation of alternative remedy has nothing to E
do with the jurisdiction of the writ court. Even if a party has already
availed of the alternative remedy by invoking the appellate jurisdiction,
as also the jurisdiction under Article 226, the party could elect to prosecute
proceedings under Article 226 for the same relief.
76. There are certain well-recognised exceptions where the bar F
of alternative remedy does not apply. Where the authority has acted
without jurisdiction, the High Court should not refuse to exercise its
jurisdiction under Article 226 of the Constitution on the ground of an
alternative remedy, as held by this Court, inter alia, in Kuntesh Gupta
vs. Management of Hindu Kanya Mahavidyalaya, Sitapur, U.P. &
Ors. reported in (1987) 4 SCC 525. Complete lack of jurisdiction of an G
authority to take the impugned action, as in this case, is always a good
ground to entertain a writ petition.
77. Moreover, as held by this Court in Municipal Council, Khurai
and Anr. vs. Kamal Kumar & Anr. reported in AIR 1965 SC 1321,
H
906 SUPREME COURT REPORTS [2019] 11 S.C.R.
A M.G. Abrol, Addl. Collector of Customs, Bombay & Anr. vs. Shantilal
Chhotelal & Co. reported in AIR 1966 SC 197 and in State of U.P and
Others vs. Indian Hume Pipe Co. Ltd reported in (1977) 2 SCC 724,
there is no rule of law that the High Court should not entertain a writ
petition when an alternative remedy is available to a party. It is always a
B matter of discretion with the Court and if the discretion has been exercised
by the High Court not unreasonably or perversely, it is settled practice of
this Court not to interfere with the exercise of discretion by the High
Court. The High Court in the present case has entertained the writ petition
and decided the question of law arising in it and in my opinion rightly. In
my view, we would not be justified in interfering in our jurisdiction under
C Article 136 of the Constitution to quash the order of the High Court,
merely on the ground of existence of an alternative remedy. As held by
this Court, inter alia, in Kanak vs. U.P. Avas Evam Vikas Parishad
& Ors. reported in (2003) 7 SCC 693 (701), once a writ petition is
entertained, and the matter is argued at length on merit, it would be too
D late in the day to contend that the writ petitioner should avail the alternative
remedy.
78. The High Court has, in my view, rightly allowed the writ petition.
This appeal is, in my view, liable to be dismissed.
ORDER
E
In view of difference of opinions and the distinguishing judgments
(Hon’ble R. Banumathi, J. allowed the appeal and Hon’ble Indira
Banerjee, J. dismissed the appeal), the matter be placed before Hon’ble
the Chief Justice of India for referring the matter to the Larger Bench.
F
Divya Pandey Referred to larger bench.
G
H
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