REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6677 OF 2019
(Arising out of SLP(C) No.36771 of 2016)
STATE OF RAJASTHAN AND ORS. ….Appellants
VERSUS
LORD NORTHBROOK AND ORS. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
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 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 taking over the
properties of Sh. Raja Sardar Singh by the State under the
Rajasthan Escheats Regulation Act, 1956.
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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 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 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
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.
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4. On 24.02.1987, one Dwarka Prasad Parik filed application
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. 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
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 Act, 1956 i.e. “Upon receipt of
information as to the existence within 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
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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
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 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 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
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immovable properties in Khetri Trust and that the Trustees are
running 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
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 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 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
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dated 15.06.1987, Dy. Secretary, Government of Rajasthan
passed the order dated 03.07.1987 which reads as under:-
“Government of Rajasthan
Revenue (Group-3) Department
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.
Ref: Your letter No.1955/Nyay/87 dated 15.06.1987
Sir,
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
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.
R.S. Mittal
Deputy Secretary
Government of Rajasthan”
After referring to the above proceeding of Government of
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
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initiated in respect of properties of late Sh. Raja 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 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. 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 State. In the
said Report, it was stated that some of the properties were under
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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.
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, 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, 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
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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 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. 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 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/trustees have
preferred an appeal against the said judgment dated 03.07.2012
9
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 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
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 and held that Sh. Raja
Sardar Singh died intestate and issueless and therefore, Section
29 of the Hindu Succession Act read with Sub-section 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
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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 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 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. 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, Revenue, Govt. of Rajasthan, District Collector,
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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.
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 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 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
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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 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 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 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. By placing reliance
13
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 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
Singh and Others (1983) 3 SCC 118, Kutchi Lal Rameshwar
Ashram Trust Evam Anna Kshetra Trust Through Velji Devshi
Patel v. Collector, Haridwar and Others (2017) 16 SCC 418. 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 “present and actual
possession” which is in contravention of proviso 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
14
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
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 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 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
Revenue, whether the High Court was right in
quashing the three communications/orders dated
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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
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 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 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:-
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“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.”
The 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.
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 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 Singh and Others
1992 Supp. (3) SCC 108 that the State Government 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 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.
The property shall devolve on the Government and the Government
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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 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 majority of cases there was
no record of the mesne tenure, and 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 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 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.
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23. Contention of the respondents No.5 to 8 is that the moment
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 placed upon Bombay Dyeing’s case, 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
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
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
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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 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
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
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 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 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
20
and Co. Ltd. (In CA No.1174 of 1965) and Miss Violet
Ouchferlong Wapshare 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.
25. Observing that escheat is a doctrine which recognizes the
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 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 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 4
th. 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
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. ….
21
…….
“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
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 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 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:-
“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 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
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plaintiffs-respondents. Even if they succeed in showing that the
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 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 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 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
23
vacantia justifying the right of the Government to take the
properties by escheat 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, 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
Northbrook 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 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. Trustees of Khetri Trust were impleaded
24
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 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 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 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
25
to dislodge the suspicious circumstances surrounding the Will.”
The relevant findings of the High Court are as under:-
“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.
………
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
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.”
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 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
26
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 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
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 High Court.
The Trust thus, chose to seek an adjournment in the Writ 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.
27
34. The agnate such as Gaj Singh Alsisar-respondent No.8 and
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 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. 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
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:-
“16. After filing of the probate petition, a number of objections
were filed in response to the citation published in the “Statesman”
28
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
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 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
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 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 the
properties of Sh. Raja Sardar Singh. The so called agnates or
29
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.
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 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.
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
30
sent a report dated 16.02.1987 to the District Collector, Jhunjhunu
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 Khetri trust was constituted. The 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
To,
District Collector, Jhunjhunu
Sir,
That as per the information received vide letter dated
11.2.1987 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.
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 their children be alive.
Sd/-Mang
ilal
31
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 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 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 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
32
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 Sh. Raja Sardar Singh and on finding
about the absence of legal heirs, the authorities satisfied
themselves that 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.
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 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
33
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 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
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 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” 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.
34
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.
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 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 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
35
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;
b. prepare an inventory thereof showing the prescribed
particulars;
c. take over possession of it in the prescribed manner;
-andd. 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.
43. As pointed out earlier, as against the order passed by the
Collector (dated 02.02.2016), the Trust has preferred the appeal
before 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
36
03.08.1987 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 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.
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 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
37
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 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 dated 04.03.1987 that the
Naib Tehsildar, Jaipur was appointed as Inquiry Officer of all
properties of Sh. Raja Sardar Singh situated at Jaipur. The
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 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
38
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 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 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 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.
39
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 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 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 about the death of
Sh. Raja Sardar Singh and 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 the Manager of the
40
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 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.
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”.
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 determination are
(i)Whether Khetri Trust was in “present possession” of the
41
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 under Section 6 is in due compliance of the provisions of
the Act of 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 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 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
42
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 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 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.
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 the three
43
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 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.
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 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;
44
(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 or the vires of an Act is challenged; [vide
Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd.
and Others (2003) 2 SCC 107].
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 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 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
45
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 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. 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 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 Sh. Raja Sardar
Singh till they establish their right in a court of law.
46
(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, 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.
(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.
(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.
(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,
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
47
03.07.1987, 22.07.1987 and 03.08.1987 which
themselves culminated into 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/orders dated 03.07.1987, 22.07.1987
and 03.08.1987.
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 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 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?
48
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.
.……........................J.
[R. BANUMATHI]
New Delhi;
August 28, 2019.
49
REPORTABLE
THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVILAPPEAL NO. 6677 OF 2019
(ARISING OUT OF SLP (C) NO. 36771 OF 2016)
State of Rajasthan and Ors. … Appellants
VERSUS
Lord Northbook and Ors. …Respondents
J U D G M E N T
Indira Banerjee, J.
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 17.11.2006
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 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
1
behind by Raja Bahadur be made over to the writ petitioners.
3. The facts giving rise to the writ petition have been narrated in
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 property District Name of the
village &
township
1 Khetri House, 5 Sardar Patel
Road
Delhi New Delhi
2 Hotel Khetri House Jaipur Jaipur city
3 Kothi Sukh Mahal Jhunjhunu Khetri
4 Kothi Jai Niwas Jhunjhunu Khetri
5 Kothi Amar Hall Jhunjhunu Khetri
6 Nizamat Tehsil Building Jhunjhunu Khetri
7 Ajit Niwas Bagh Farm Jhunjhunu Khetri
8 Record Room Jhunjhunu Khetri
9 Haveli Prohitji Wali Jhunjhunu Khetri
10 Dera Brijlalji Wali Jhunjhunu Khetri
11 Farrash Khana Jhunjhunu Khetri
12 Chabutra inside Town Jhunjhunu Khetri
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
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
petitioner and one of the trustees named in the Will informed the
Competent Authority, being the Sub Divisional Officer (SDO), khetri
2
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
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 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 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.
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.
3
10. One Arjun Singh, father of the respondent No.8, claiming to be
an agnate of the deceased, and others filed objections opposing the
grant of probate of the Will executed by Raja Bahadur.
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 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
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
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
4
compliance report dated 3.8.1987 submitted by the Tehsildar to the
Collector. On 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
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
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
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.
5
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
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 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.
(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:
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 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
6
enacted in terms of Article 296 of the Constitution, the expressions are
to be understood in the sense in which they have been used in Article
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 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
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 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.
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
property is “bona vacantia”. In Bombay Dyeing Manufacturing Co.
7
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”, 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.
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 LC held “Escheat 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.
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,
1 AIR 1958 SC 328
2 A-G of Ontario v Mercer (1883) 8 App Cas 767 at 772
8
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 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.
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.
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.
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
Court for final determination as to the nature of the property, and
9
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
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.
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. 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
3 (2017) 16 SCC 418
4 (1983) 3 SCC 118
10
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.
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
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 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 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, accepted that the respondent trustees of the Trust had locus
11
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 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 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 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
(supra), the onus to establish that a property is bona vacantia is on the
12
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 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 of 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.
45. Mr. Paras Kuhad, learned senior counsel appearing on behalf 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.
“(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
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
13
absolute failure of heirs and thus any possibility of claim being
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 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 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 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:-
“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) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule;
14
(c) thirdly, if there is no heir of any of the two classes, then upon
the agnates of the deceased; and
(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 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 among the
heirs in class I of the Schedule in accordance with the following
rules:―
Rule1.― The intestate’s widow, or if there are more widows than
one, all the widows together, shall take one share.
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 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 son shall be so
made that his widow (or widows together) 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 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 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:―
Rule 1.― Of two heirs, the one who has fewer or no degrees of
15
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.
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 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 inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or
descending.
xxx xxx xxx
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.
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 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,
tavazhi, illom, kutumbaor kavaruin the property of the tarwad,
tavazhi, illom, kutumbaor kavarushall, notwithstanding anything
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.”
47. The Expression “agnate” and “cognate” are defined in Section
3(a) and 3(c) respectively of the Hindu Succession Act to mean:-
16
“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:
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 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.
49. It is not necessary for this Court to consider the correctness 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
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’
17
properties 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 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.
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.
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
18
to enquire into whether 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 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.
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
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 recover the properties from those in possession thereof.
19
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 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 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 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 the
Escheat Act is failure of heirs. In the absence of any finding of 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.
62. Apart from the fact that the proceedings could not be initiated
20
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,
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 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.
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.
65. In Calcutta Discount Company vs. ITO, Companies District
21
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 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
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 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.
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,
22
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
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
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 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.
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.
23
When an efficacious alternative remedy is available, the High Court
does 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.
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
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
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
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
24
remedy has nothing to 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 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
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,
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 matter of discretion with the Court and if the
discretion has been exercised by the High Court not unreasonably or
25
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 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 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.
..............................…, J
(INDIRA BANERJEE)
AUGUST 28, 2019
NEW DELHI
26
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6677 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 36771 OF 2016)
STATE OF RAJASTHAN AND ORS. ...APPELLANT(S)
VERSUS
LORD NOTHBOOK AND ORS. ...RESPONDENT(S)
O R D E R
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.
....................J.
[R. BANUMATHI]
NEW DELHI ....................J.
28TH AUGUST, 2019 [INDIRA BANERJEE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6677 OF 2019
(Arising out of SLP(C) No.36771 of 2016)
STATE OF RAJASTHAN AND ORS. ….Appellants
VERSUS
LORD NORTHBROOK AND ORS. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
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 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 taking over the
properties of Sh. Raja Sardar Singh by the State under the
Rajasthan Escheats Regulation Act, 1956.
1
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 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 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
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.
2
4. On 24.02.1987, one Dwarka Prasad Parik filed application
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. 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
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 Act, 1956 i.e. “Upon receipt of
information as to the existence within 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
3
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
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 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 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
4
immovable properties in Khetri Trust and that the Trustees are
running 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
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 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 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
5
dated 15.06.1987, Dy. Secretary, Government of Rajasthan
passed the order dated 03.07.1987 which reads as under:-
“Government of Rajasthan
Revenue (Group-3) Department
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.
Ref: Your letter No.1955/Nyay/87 dated 15.06.1987
Sir,
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
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.
R.S. Mittal
Deputy Secretary
Government of Rajasthan”
After referring to the above proceeding of Government of
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
6
initiated in respect of properties of late Sh. Raja 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 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. 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 State. In the
said Report, it was stated that some of the properties were under
7
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.
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, 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, 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
8
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 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. 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 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/trustees have
preferred an appeal against the said judgment dated 03.07.2012
9
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 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
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 and held that Sh. Raja
Sardar Singh died intestate and issueless and therefore, Section
29 of the Hindu Succession Act read with Sub-section 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
10
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 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 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. 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, Revenue, Govt. of Rajasthan, District Collector,
11
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.
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 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 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
12
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 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 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 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. By placing reliance
13
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 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
Singh and Others (1983) 3 SCC 118, Kutchi Lal Rameshwar
Ashram Trust Evam Anna Kshetra Trust Through Velji Devshi
Patel v. Collector, Haridwar and Others (2017) 16 SCC 418. 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 “present and actual
possession” which is in contravention of proviso 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
14
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
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 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 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
Revenue, whether the High Court was right in
quashing the three communications/orders dated
15
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
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 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 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:-
16
“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.”
The 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.
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 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 Singh and Others
1992 Supp. (3) SCC 108 that the State Government 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 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.
The property shall devolve on the Government and the Government
17
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 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 majority of cases there was
no record of the mesne tenure, and 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 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 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.
18
23. Contention of the respondents No.5 to 8 is that the moment
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 placed upon Bombay Dyeing’s case, 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
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
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
19
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 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
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
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 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 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
20
and Co. Ltd. (In CA No.1174 of 1965) and Miss Violet
Ouchferlong Wapshare 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.
25. Observing that escheat is a doctrine which recognizes the
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 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 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 4
th. 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
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. ….
21
…….
“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
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 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 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:-
“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 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
22
plaintiffs-respondents. Even if they succeed in showing that the
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 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 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 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
23
vacantia justifying the right of the Government to take the
properties by escheat 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, 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
Northbrook 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 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. Trustees of Khetri Trust were impleaded
24
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 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 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 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
25
to dislodge the suspicious circumstances surrounding the Will.”
The relevant findings of the High Court are as under:-
“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.
………
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
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.”
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 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
26
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 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
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 High Court.
The Trust thus, chose to seek an adjournment in the Writ 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.
27
34. The agnate such as Gaj Singh Alsisar-respondent No.8 and
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 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. 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
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:-
“16. After filing of the probate petition, a number of objections
were filed in response to the citation published in the “Statesman”
28
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
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 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
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 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 the
properties of Sh. Raja Sardar Singh. The so called agnates or
29
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.
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 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.
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
30
sent a report dated 16.02.1987 to the District Collector, Jhunjhunu
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 Khetri trust was constituted. The 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
To,
District Collector, Jhunjhunu
Sir,
That as per the information received vide letter dated
11.2.1987 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.
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 their children be alive.
Sd/-Mang
ilal
31
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 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 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 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
32
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 Sh. Raja Sardar Singh and on finding
about the absence of legal heirs, the authorities satisfied
themselves that 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.
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 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
33
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 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
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 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” 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.
34
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.
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 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 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
35
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;
b. prepare an inventory thereof showing the prescribed
particulars;
c. take over possession of it in the prescribed manner;
-andd. 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.
43. As pointed out earlier, as against the order passed by the
Collector (dated 02.02.2016), the Trust has preferred the appeal
before 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
36
03.08.1987 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 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.
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 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
37
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 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 dated 04.03.1987 that the
Naib Tehsildar, Jaipur was appointed as Inquiry Officer of all
properties of Sh. Raja Sardar Singh situated at Jaipur. The
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 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
38
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 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 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 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.
39
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 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 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 about the death of
Sh. Raja Sardar Singh and 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 the Manager of the
40
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 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.
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”.
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 determination are
(i)Whether Khetri Trust was in “present possession” of the
41
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 under Section 6 is in due compliance of the provisions of
the Act of 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 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 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
42
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 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 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.
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 the three
43
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 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.
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 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;
44
(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 or the vires of an Act is challenged; [vide
Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd.
and Others (2003) 2 SCC 107].
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 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 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
45
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 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. 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 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 Sh. Raja Sardar
Singh till they establish their right in a court of law.
46
(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, 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.
(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.
(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.
(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,
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
47
03.07.1987, 22.07.1987 and 03.08.1987 which
themselves culminated into 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/orders dated 03.07.1987, 22.07.1987
and 03.08.1987.
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 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 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?
48
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.
.……........................J.
[R. BANUMATHI]
New Delhi;
August 28, 2019.
49
REPORTABLE
THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVILAPPEAL NO. 6677 OF 2019
(ARISING OUT OF SLP (C) NO. 36771 OF 2016)
State of Rajasthan and Ors. … Appellants
VERSUS
Lord Northbook and Ors. …Respondents
J U D G M E N T
Indira Banerjee, J.
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 17.11.2006
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 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
1
behind by Raja Bahadur be made over to the writ petitioners.
3. The facts giving rise to the writ petition have been narrated in
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 property District Name of the
village &
township
1 Khetri House, 5 Sardar Patel
Road
Delhi New Delhi
2 Hotel Khetri House Jaipur Jaipur city
3 Kothi Sukh Mahal Jhunjhunu Khetri
4 Kothi Jai Niwas Jhunjhunu Khetri
5 Kothi Amar Hall Jhunjhunu Khetri
6 Nizamat Tehsil Building Jhunjhunu Khetri
7 Ajit Niwas Bagh Farm Jhunjhunu Khetri
8 Record Room Jhunjhunu Khetri
9 Haveli Prohitji Wali Jhunjhunu Khetri
10 Dera Brijlalji Wali Jhunjhunu Khetri
11 Farrash Khana Jhunjhunu Khetri
12 Chabutra inside Town Jhunjhunu Khetri
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
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
petitioner and one of the trustees named in the Will informed the
Competent Authority, being the Sub Divisional Officer (SDO), khetri
2
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
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 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 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.
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.
3
10. One Arjun Singh, father of the respondent No.8, claiming to be
an agnate of the deceased, and others filed objections opposing the
grant of probate of the Will executed by Raja Bahadur.
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 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
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
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
4
compliance report dated 3.8.1987 submitted by the Tehsildar to the
Collector. On 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
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
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
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.
5
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
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 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.
(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:
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 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
6
enacted in terms of Article 296 of the Constitution, the expressions are
to be understood in the sense in which they have been used in Article
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 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
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 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.
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
property is “bona vacantia”. In Bombay Dyeing Manufacturing Co.
7
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”, 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.
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 LC held “Escheat 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.
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,
1 AIR 1958 SC 328
2 A-G of Ontario v Mercer (1883) 8 App Cas 767 at 772
8
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 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.
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.
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.
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
Court for final determination as to the nature of the property, and
9
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
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.
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. 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
3 (2017) 16 SCC 418
4 (1983) 3 SCC 118
10
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.
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
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 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 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, accepted that the respondent trustees of the Trust had locus
11
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 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 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 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
(supra), the onus to establish that a property is bona vacantia is on the
12
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 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 of 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.
45. Mr. Paras Kuhad, learned senior counsel appearing on behalf 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.
“(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
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
13
absolute failure of heirs and thus any possibility of claim being
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 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 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 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:-
“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) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule;
14
(c) thirdly, if there is no heir of any of the two classes, then upon
the agnates of the deceased; and
(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 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 among the
heirs in class I of the Schedule in accordance with the following
rules:―
Rule1.― The intestate’s widow, or if there are more widows than
one, all the widows together, shall take one share.
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 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 son shall be so
made that his widow (or widows together) 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 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 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:―
Rule 1.― Of two heirs, the one who has fewer or no degrees of
15
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.
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 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 inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or
descending.
xxx xxx xxx
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.
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 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,
tavazhi, illom, kutumbaor kavaruin the property of the tarwad,
tavazhi, illom, kutumbaor kavarushall, notwithstanding anything
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.”
47. The Expression “agnate” and “cognate” are defined in Section
3(a) and 3(c) respectively of the Hindu Succession Act to mean:-
16
“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:
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 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.
49. It is not necessary for this Court to consider the correctness 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
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’
17
properties 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 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.
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.
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
18
to enquire into whether 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 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.
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
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 recover the properties from those in possession thereof.
19
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 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 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 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 the
Escheat Act is failure of heirs. In the absence of any finding of 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.
62. Apart from the fact that the proceedings could not be initiated
20
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,
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 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.
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.
65. In Calcutta Discount Company vs. ITO, Companies District
21
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 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
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 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.
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,
22
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
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
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 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.
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.
23
When an efficacious alternative remedy is available, the High Court
does 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.
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
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
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
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
24
remedy has nothing to 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 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
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,
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 matter of discretion with the Court and if the
discretion has been exercised by the High Court not unreasonably or
25
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 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 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.
..............................…, J
(INDIRA BANERJEE)
AUGUST 28, 2019
NEW DELHI
26
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6677 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 36771 OF 2016)
STATE OF RAJASTHAN AND ORS. ...APPELLANT(S)
VERSUS
LORD NOTHBOOK AND ORS. ...RESPONDENT(S)
O R D E R
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.
....................J.
[R. BANUMATHI]
NEW DELHI ....................J.
28TH AUGUST, 2019 [INDIRA BANERJEE]
