1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3878 OF 2009
KUTCHI LAL RAMESHWAR ASHRAM
TRUST EVAM ANNA KSHETRA
TRUST THR. VELJI DEVSHI PATEL ....APPELLANT
Versus
COLLECTOR, HARIDWAR & ORS. .....RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 This appeal has arisen from a judgment rendered on 15 May 2007 by a
Division Bench of the High Court of Uttarakhand at Nainital. Finding no substance
in the writ petition filed under Article 226 of the Constitution, the High Court affirmed
the order passed by the Collector, Haridwar on 12 May 2003 holding that the
property in dispute stands vested in the government under Section 29 of the Hindu
Succession Act, 1956. This finding has been premised on the basis that there exists
no heir to succeed to the property following the death of Mohan Lal.
2
2 The petitioner claims to be a public trust registered under the Bombay Public
Trusts Act, 1950. The Trust claims to have a vast amount of property at Haridwar
which is being used for charitable purposes including (i) arranging for the stay of
pilgrims and saints who visit Haridwar and providing food and other facilities to
them; and (ii) performing and organizing religious functions. The petitioner conducts
a Sanskrit Vidyalaya as well as a dispensary.
3 Swamy Udhav Das Ji Maharaj was visually challenged. On 28 November
1955, he is stated to have purchased land admeasuring two bighas and fifty khewat
at Haridwar in the name of his chela, Mohan Lal. According to the petitioner, the
Swamy founded the Kutchi Lal Rameshwar Ashram Trust. He is stated to have
executed a will on 22 October 1956 nominating some individuals who would
manage and administer his properties, including the property in question, after his
lifetime. According to the petitioner, this was a second registered will executed by
the Swamy since some of those who were nominated in an earlier registered will
were not inclined to accept the responsibility.
4 On 13 January 1957, the Swamy died. The Trust is stated to have been
registered on 11 November 1957. Among the objects of the Trust, are the following:
“4. The main purpose for which the Ashram was established
at Haridwar under the inspiration of Mahrajshri Odhavdasji has
been to provide a centre and shelter for those Kutchi people in
particular and others in general who go to the Holy Shrines at
Haridwar, for the purposes of devotion and their peace of mind
and the same shall continue to be the main objective and
purposes of the Trust along with any other objective which might
further the main object such as religious education prayers etc.
5. It was the cherished object of the revered Maharajshri
Odhavdasji that the Ashram should provide both shelter and
3
food to the deserving and this is being done within the limitation
of the resources at the disposal of the Trust. Many people have
expressed their desire to donate moneys for the purposes of
running an “Anna Kshetra” as desired by their late Guru
Maharaj.”
According to the petitioner, all the movable and immovable properties were vested in
the Trust. On 23 March 1958, an unregistered declaration is stated to have been
executed by Mohan Lal stating that though the property was purchased in his name
by the late Swamy, neither he nor his legal heirs would have any rights in the
property. The whereabouts of Mohan Lal are not known since 1958.
5 On 10 July 2001, a suit1
was instituted by the petitioner seeking an injunction
against the third respondent (an individual by the name of Swamy Mahanand
Awdhut Tatambri) described in these proceedings as :
“Chela Swamy Brahmchari Ji Awdhut, Resident of Tatambri
Ashram, Sapt Sarovar Road, Bhoopat Wala, Haridwar,
Uttarakhand.”
The suit for injunction appears to have been instituted on the ground that the third
respondent was attempting to make a construction on some part of the property in
dispute. A few months after the institution of the suit, the third respondent filed a
complaint on 15 October 2001 before the Collector alleging that the property
belonged to Mohan Lal. According to him, a Patta was executed on 28 November
1955 in favour of Mohan Lal by Govind Ram and Shiv Ram. According to the
complaint, Mohan Lal had died and there being no legal heir, the property stands
vested in the state government under Section 29 of the Hindu Succession Act 1958.
1 Suit 225 of 2011
4
6 The Collector issued a notice to the petitioner following receipt of the
complaint. A reply was filed before the Collector on 13 November 2001. The reply
traces the acquisition of the property by the late Swamy in the name of his disciple
Mohan Lal on 28 November 1955 and adverted to the will executed and registered
by the Swamy on 22 November 1956. The reply relied upon the declaration by
Mohan Lal on 23 March 1958 stating that he had no right or interest in the property.
The reply adverted to the construction carried upon the property by the Kutchi Lal
Rameshwar Ashram Trust after plans were duly sanctioned by Haridwar
Development Authority. The reply also referred to the fact that the property has been
assessed to municipal taxes in the name of the Trust. The Trust claims to have built
upon the property and to be in occupation without interruption for forty-five years.
Moreover, it was stated that a suit before the Civil Judge, Haridwar was instituted by
the Trust since Swamy Mahanand Awdhut Tatambri who had recently purchased the
adjoining property had carried out certain unauthorized constructions that affected
the rights of the Trust. The petitioner claimed that the complaint against it was
instituted before the Collector as a reprisal for the dispute with the adjoining owner
which had led to the institution of a suit before the Civil Court.
7 On 12 May 2003, the Collector at Haridwar adjudicated upon the notice to
show cause issued by him. The Collector held that a patta of the property was
secured by Mohan Lal on 15 July 1955 and on 28 November 1955. According to the
Collector, the Trust had not submitted any documentary evidence from which it could
be deduced that the property had been purchased in the name of Mohan Lal from
5
the funds of Swamy Udhav Das. According to the Collector, the alleged admission
deed of 23 March 1958 by Mohan Lal could not be relied upon, since he was shown
to be a resident of Reha Kuch (presently Chandrakela) whereas the person in
whose favour the patta had been executed was a resident of village Ishwar Nagar.
According to the Collector, the Swamy died before 11 November 1957. The Trust, in
the view of the Collector, had failed to submit evidence in respect of the heirs of
Mohan Lal. The Collector proceeded to draw an inference of the death of Mohan Lal
since he was not heard of for seven years. On this basis, the Collector arrived at the
conclusion that the property vested in the State Government by the operation of law.
The City Magistrate at Haridwar was directed to take immediate action for taking
over the possession of the property.
8 Aggrieved by the order of the Collector, Haridwar, which held that the property
had vested in the state government by the operation of Section 29 of the Hindu
Succession Act, 1956, and directing the City Magistrate to take over possession, the
petitioner challenged the decision in a writ petition under Article 226 of the
Constitution before the High Court of Uttarakhand. The Trust claimed to be in the
management of the property for over forty-five years and submitted that the only
manner in which action adverse to it could have been taken was on the basis of a
title action pursued through the Administrator General or through a Civil Court. The
Collector, in the submission of the Trust, could not assume the power to decide a
question of title in the manner in which he had purported to do.
6
9 Certain developments took place after the Trust instituted writ proceedings
before the High Court of Uttarakhand in May 2003. The third respondent had filed an
appeal against an order of interim injunction passed in favour of the Trust in the suit
instituted by it in the Civil Court. The appeal was dismissed by the Additional District
Judge, Haridwar on 24 December 2003. On 9 May 2005, a Division Bench of the
High Court admitted the writ petition of the trust challenging the order of the
Collector. The High Court stayed the order on the ground, prima facie, that the
Collector had no jurisdiction to do so. On 10 April 2007, a writ petition filed by the
trust was dismissed (erroneously according to the petitioner on the basis of the facts
of another case). The petitioner filed a review petition. The review was allowed by a
Division Bench of the High Court on 15 May 2007 and the earlier order was recalled.
Eventually, it was by its Judgment and Order dated 15 May 2007 that the Division
Bench upheld the decision of the Collector.
10 The High Court held that the deed of acceptance alleged to have been
executed by Mohan Lal on 23 March 1958 is not a registered document. Moreover, it
has been stated that the executor of the deed of acceptance appears to be a person
different from the person by the name of Mohan Lal who was the owner of the
disputed land. According to the High Court, there was nothing to indicate that Mohan
Lal had died prior to the preparation of the Deed of Trust on 11 November 1957. The
High Court further held that the land was purchased by Mohan Lal in whose favour
the original pattas were executed but there was no evidence to indicate that the
funds were provided by the late Swamy. The findings of the High Court are in the
following terms:
7
“10 Undisputedly the land in question was purchased by Mohan
Lal through pattas dated 28 November 1955 and 15 July 1955
whereas the appellant’s claim is that the land was purchased by
Mahant Udhav Das in the name of Mohan Lal, but no evidence
has been adduced on behalf of the appellant showing that the
land was purchased from the money of Mahant Udhav Das Ji.
The appellant has not been able to establish that Mohan Lal on
whose name the land was purchased and the Mohan Lal who
had executed the acceptance deed is the same and one person.
The appellant trust has not claimed itself the legal heir of Mohan
Lal, the owner of the disputed property, but it has claimed the
ownership on the basis of the will dated 22 October 1956 which
was not executed by Mohan Lal. The owner of the land, Mohan
Lal has no legal heir, therefore, the disputed land was liable to
be devolved in the State Government in view of the provision of
Section 29 of the Hindu Succession Act. We do not find any
infirmity in the order passed by the Collector in this matter.”
11 Leave has been granted in these proceedings on 12 May 2009, when an
order of status quo was issued.
12 On behalf of the appellants, it has been submitted by Mr Aryama Sundaram,
learned Senior Counsel that :
(i) The Collector has acted without jurisdiction, in assuming the powers of the civil
court and adjudicating on the vesting of the property in the state by escheat
under Section 29 of the Hindu Succession Act, 1956;
(ii) In view of the clear dispute, involving the setting up of rival titles – the
government claiming under Section 29 and the Trust setting up a contrary title, it
was not open to the Collector to act as a judge in his own cause in his capacity
as a representative of the state government;
8
(iii) Where a dispute of title or in regard to the absence of legal heirs within the
meaning of Section 29 arises, it is only a civil court which can exercise
jurisdiction; and
(iv) Assuming that the property belonged to Mohan Lal, the Collector ought not to
have proceeded in the matter without due notice to him and hence the inference
that Mohan Lal was dead, as not having been heard of for seven years, is
fallacious.
13 On the other hand, it has been submitted on behalf of the state government
that the order passed by the Collector constitutes a valid exercise of jurisdiction. It
was urged that the Collector had justifiably come to the conclusion that Mohan Lal
had not been succeeded by any heir, upon which the property must be regarded as
having vested in the state under Section 29 of the Hindu Succession Act, 1956. It
may be noted that in the counter affidavit which has been filed in these proceedings,
the first and second respondents have adverted to the source of power of the
Collector being traceable to Section 29 of the Hindu Succession Act, 1956, besides
which reliance has been placed on Section 167 (2) of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 in its application to the State of Uttarakhand.
14 Shri M N Rao, learned Senior Counsel appearing on behalf of the third
respondent has adopted the submission which was urged before the Collector by his
client as complainant. Learned Senior Counsel however urged that it was for the
Collector and the state to sustain the order which has been passed.
9
15 Before we deal with the merits of the rival contentions, an issue needs to be
addressed at the threshold. Initially, on 16 July 2007, notice was issued “confined to
the question as to whether the Collector has power to pass an order under Section
29 of Hindu Succession Act, 1956 in view of the provisions of the
Administrators-General Act, 1963”. Leave was granted on 12 May 2009. Relying
upon the initial order, which confined the notice to a specific issue, learned Counsel
for the state submitted that the grant of leave subsequently should not be regarded
as having expanded the scope of the controversy to all the issues raised in the
appeal. Hence, the submission is that the only issue which ought to be addressed is
that which was adverted to when notice was issued.
16 While addressing the preliminary issue, it would, in our view, be inappropriate
and, perhaps even unsafe, to lay down a broad generalisation. The constitutional
jurisdiction which is conferred upon this Court has its basis in the advancement of
justice. The power of the court to render justice should not be constricted by a
narrow approach to its mandate. In the context of a criminal case, a Bench of two
Judges of this Court in Yomeshbhai Pranshankar Bhatt v State of Gujarat2
considered a situation where a conviction under Section 302 of the Penal Code had
been affirmed by the High Court. Initially, this Court issued notice confined only to
the question as to whether the accused was guilty of the commission of an offence
under any of the parts of Section 304 and not under Section 302. The issue was
whether the ambit of the appeal was confined to what was stated in the notice
2 (2011) 6 SCC 312
10
initially issued. In this context, the Court adverted to the Supreme Court Rules, 1966
which have been framed under Article 145 of the Constitution. Order XLVII Rule 6 of
the rules of procedure of this Court provides as follows:
“6. Nothing in these Rules shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders as
may be necessary for the ends of justice or to prevent abuse of
the process of the Court.”
Article 142 of the Constitution enables this Court, in the exercise of its jurisdiction, to
pass such decrees and make such orders as is necessary for doing complete justice
in any case or matter pending before it. After adverting to Article 142, this Court held
as follows :
“18. It is, therefore, clear that the Court while hearing the matter
finally and considering the justice of the case may pass such
orders which the justice of the case demands and in doing so,
no fetter is imposed on the Court's jurisdiction except of course
any express provision of the law to the contrary, and normally
this Court cannot ignore the same while exercising its power
under Article 142. An order which was passed by the Court at
the time of admitting a petition does not have the status of an
express provision of law. Any observation which is made by the
Court at the time of entertaining a petition by way of issuing
notice are tentative observations. Those observations or orders
cannot limit this Court's jurisdiction under Article 142.”
Hence, the Court observed that at the time of final hearing, it would not be precluded
from considering the controversy “in its entire perspective” and while doing so, it is
not “inhibited by any observation, any order made at the time of issuing the notice”.
A similar view was taken in an earlier decision in State of Uttaranchal v Alok
Sharma3
. In Indian Bank v Godhara Nagrik Cooperative Credit Society
3 (2009) 7 SCC 647
11
Limited4
, a Bench of two Judges of this Court held that though a limited notice was
issued initially, leave having been granted thereafter, “all the contentions of the
parties are now open”.
17 We respectfully reiterate and adopt this view which is based on a sagacious
approach to the constitutional powers that are conferred upon the Court. Article 142
embodies the fundamental principle that the jurisdiction of the court is to render
complete justice and as an incident of it, the court may pass such decrees or orders
as it considers fit. When the court initially issues a limited notice but subsequently
grants leave, the scope of the appeal does not raise a matter of jurisdiction but of
judicial discretion. Since it constitutes a matter of discretion and not of jurisdiction,
the guiding principle has to be the advancement of substantial justice.
18 Section 29 of the Hindu Succession Act, 1956 has been invoked by the
Collector. Section 29 provides as follows:
“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.”
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 government. Though
the property devolves on government in such an eventuality, yet the government
4 (2008) 12 SCC 541
12
takes it subject to all its obligations and liabilities. The state in other words 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”, as held in State of Punjab v Balwant
Singh5
. This principle from Halsbury’s Laws of England6
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. In State of Bihar v Radha Krishna Singh7
, a Bench
of three Judges of this Court formulated the principle in the following observations :
“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 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.” (id at p. 216)
Mulla’s Hindu Law8
succinctly summarises the position thus :
“Where the Crown or Government claims by escheat, the onus
5 (1992) Suppl (3) SCC 108
6 4
th Ed. Vol 17, para 1439
7 (1983) 3 SCC 118
8 Twenty – second edition, pp. 1260-1261
13
lies on it to show that the owner of the estate died without heirs.
An estate taken by escheat is subject to the trusts, charges and
legal obligations (if any) previously affecting the estate, e.g.,
mortgages and other encumbrances. This section rules that in
case of failure of all the heirs recognised under the Act, on the
death of the owner intestate, his or her property devolves on the
Government. The Government takes the property subject to all
legal obligations and liabilities to which an heir would have been
subject if the property had devolved upon the heir by
succession. The word ‘failure’ used in the section is very clear
and indicative of the fact that there must be a absence of heirs
of the intestate.”
In Rambir Das v Kalyan Das9
a Bench of two learned Judges of this Court dealt
with a case of Shebaitship. Citing the authority of Justice B K Mukherjea’s
celebrated Tagore Law Lectures with approval, this Court took note of the position
of law elucidated in the lectures :
“As shebaitship is property, it devolves like any other property
according to the ordinary Hindu law of inheritance. If it remains
in the founder, it follows the line of founder's heirs; if it is
disposed of absolutely in favour of a grantee, it devolves upon
the heirs of the latter in the ordinary way and if for any reason
the line appointed by the donor fails altogether, shebaitship
reverts to the family of the founder.”
On the question of escheat, Justice B K Mukherjea observes thus :
“As there is always an ultimate reversion to the founder or his
heirs, in case the line of Shebaits is extinct, strictly speaking no
question of escheat arises so far as the devolution of
shebaitship is concerned. But cases may be imagined where
the founder also has left no heirs, and in such cases the
founder's properties may escheat to the State together with the
endowed property. In circumstances like these, the rights of the
State would possibly be the same as those of the founder
himself, and it would be for it to appoint a Shebait for the
debutter property. It cannot be said that the State receiving a
dedicated property by escheat can put an end to the trust and
treat it as secular property.”
In other words, even in a situation where a founder or his line of heirs is extinct, and
the properties escheat to the state, the state which receives a dedicated property is
9 (1997) 4 SCC 102
14
subject to the trust and cannot treat it in the manner of a secular property. In fact, we
may note, Section 29 expressly stipulates that the state “shall take the property
subject to all the obligations and liabilities to which an heir would have been
subject.”
19 In deciding this case, this Court must also bear in mind the settled principle
that unless the founder of a math or religious institution has laid down the principle
governing succession to the endowment, succession is regulated by the custom or
usage of the institution. This principle was enunciated over six decades ago by this
Court in Mahant Sital Das v Sant Ram10, rendered by Justice B K Mukherjea,
speaking for a Bench of four judges :
“10. In the appeal before us the contentions raised by the parties
primarily centre round the point as to whether after the death of
Kishore Das, the plaintiff or Defendant 3 acquired the rights of
Mahant in regard to the Thakardwara in dispute. The law is well
settled that succession to Mahantship of a Math or religious
institution is regulated by custom or usage of the particular
institution, except where a rule of succession is laid down by the
founder himself who created the endowment. As the Judicial
Committee laid down [ Vide Genda Puri v. Chhatar Puri, 13 IA
100, 105] in one of the many cases on this point; “in determining
who is entitled to succeed as Mohunt, the only law to be
observed is to be found in the custom and practice, which must
be proved by testimony, and the claimant must show that he is
entitled according to the custom to recover the office and the
land and property belonging to it…. Mere infirmity of the title of
the defendant, who is in possession, will not help the plaintiff”.
20 The basic issue which has to be addressed in the light of the above principles
is whether the Collector had jurisdiction to decide a question of title by assuming to
himself the power of an adjudicatory forum. The order of the Collector indicates that
10 AIR 1954 SC 606
15
the issue as to whether the property would vest in the state government as a result
of a failure of heirs within the meaning of Section 29 was a seriously disputed issue
turning upon an adjudication of conflicting claims. In the process of determining the
issue purportedly under Section 29, the Collector has adjudicated upon various
factual matters including (i) whether the property was purchased in 1955 by Mohan
Lal with the funds provided by Swamy Udhav Das; (ii) the legality of the registered
will stated to have been executed by the Swamy on 22 October 1956; (iii) the
identity of the person who executed the deed of acceptance dated 23 March 1958 in
comparison with the person in whose name the patta had been acquired in 1955;
(iv) whether Mohan Lal died prior to the execution of the deed of Trust on 11
November 1957; and (v) whether a presumption in regard to the death of Mohan Lal
would arise upon his not being heard of allegedly for seven years. The Collector has
proceeded to adjudicate on these, among other, factual issues. Section 29, it may
be noted, embodies a principle but does not provide a procedural mechanism for
adjudication upon disputed questions. The canvas of the controversy before the
Court is an abundant indication of matters which were seriously in dispute. The
contention of the state that the property would devolve upon it as a result of Mohan
Lal being presumed to be dead and having left behind no legal heir is seriously in
question. Such a matter could not have been adjudicated upon by the Collector by
assuming to himself a jurisdiction which is not conferred upon him by law.
21 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
16
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. To allow administrative authorities of the state – including the
Collector, as in the present case – to adjudicate upon matters of tittle involving civil
disputes would be destructive of the rule of law. 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. In holding that
the Collector acted without jurisdiction in the present case, it is not necessary for the
court to go as far as to validate the title which is claimed by the petitioner to the
property. The court is not called upon to decide whether the possession claimed by
the trust of over forty-five years is backed by a credible title. The essential point is
that such an adjudicatory function could not have been arrogated to himself by the
Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction
of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure
1908.
22 We may at this stage also advert to the provisions of the Administrators –
General Act, 1963. The Act provides for the appointment of persons who are vested
with the powers of an Administrator General. Section 2(a) defines the expression
17
‘assets’ thus :
“(a) "assets" means all the property, movable and immovable, of
a deceased person, which is chargeable with and applicable to
the payment of his debts and legacies, or available for
distribution among his heirs and next of-kin”.
The Administrator General is notified under Section 3.
Section 7 allows for the grant of letters of administration by the High Court to the
Administrator General of the state, unless they are granted to the next of kin of the
deceased. Section 7 reads as follows :
“7. Administrator-General entitled to letters of administration,
unless granted to next-of kin :- Any letters of administration
granted by the High Court shall be granted to the
Administrator-General of the State unless they are granted to
the next-of-kin of the deceased.”
Section 9 empowers the Administrator General to apply to the High Court for the
administration of estates in specified circumstances :
“9. Right of Administrator-General to apply for administration of
estates :-
(1) If- (a) any person has died leaving within any State assets
exceeding rupees ten lakhs in value, and
(b) (whether the obtaining of probate of his will or letters of
administration to his estate is or is not obligatory), no person to
whom any court would have jurisdiction to commit
administration of such assets has, within one month after his
death, applied in such State for such probate, or letters of
administration, and
(c) (in cases where the obtaining of such probate or letters of
administration is not obligatory under the provisions of the
Indian Succession Act, 1925) , no person has taken other
proceedings for the protection of the estate, the
Administrator-General of the State in which such assets are,
may, subject to any rules made by the State Government, within
a reasonable time after he has had notice of the death of such
person, and of his having left such assets, take such
proceedings as may be necessary to obtain from the High Court
18
letters of administration of the estate of such person.
(2) The Administrator-General shall not take proceedings under
this section unless he is satisfied, that there is apprehension of
misappropriation, deterioration or waste of such assets if such
proceedings are not taken by him or that such proceedings are
otherwise necessary for the protection of the assets.”
The Administrator General is statutorily empowered to move the High Court to
protect the assets or estate of a deceased from dissipation.
Section 10 empowers the Administrator General to move the High Court to collect
and take possession of the assets of a deceased person where there is imminent
danger of misappropriation, deterioration or waste of assets :
“10. Power of Administrator-General to collect and hold assets
where immediate action is required :-
(1) Whenever any person has died leaving assets within any
State exceeding rupees ten lakhs in value, and the High Court
for that State is satisfied that there is imminent danger of
misappropriation, deterioration or waste of such assets,
requiring immediate action, the High Court may, upon the
application of the Administrator-General or of any person
interested in such assets or in the due administration thereof,
forthwith direct the Administrator-General - (a) to collect and
take possession of such assets, and
(b) to hold, deposit, realise, sell or invest the same according to
the directions of the High Court, and, in default of any such
directions, according to the provisions of this Act so far as the
same are applicable to such assets.
(2) Any order of the High Court under sub-section (1) shall
entitle the Administrator General
(a) to maintain any suit or proceeding for the recovery of such
assets;
(b) if he thinks fit, to apply for letters of administration of the
estate of such deceased person;
(c) to retain out of the assets of the estate any fees chargeable
under rules made under this Act; and
(d) to reimburse himself for all payments made by him to
respect of such assets which a private administrator might
lawfully have made.”
Under Section 11, the High Court is empowered to grant probate or letters of
administration to any other person who appears and establishes his claim :
19
“11. Grant of probate or letters of administration to person
appearing in the course of proceedings taken by
Administrator-General :- If, in the course of proceedings to
obtain letters of administration under the provisions of Section 9
or Section 10, -
(a) any person appears and establishes his claim-
(i) to probate of the will of the deceased; or
(ii) to letters of administration as next-of-kin of the deceased,
and gives such security as may be required of him by law; or
(b) any person satisfies the High Court that he has taken and is
prosecuting with due diligence other proceedings for the
protection of the estate, the case being one in which the
obtaining of such probate or letters of administration is not
obligatory under the provisions of the Indian Succession Act,
1925 (39 of 1925); or
(c) the High Court is satisfied that there is no apprehension of
misappropriation, deterioration, or waste of the assets and that
the grant of letters of administration in such proceedings is not
otherwise necessary for the protection of the assets; the High
Court shall –
(1) in the case mentioned in clause (a), grant probate of the will
or letters of administration accordingly;
(2) in the case mentioned in clause (b) or clause (c), drop the
proceedings; and
(3) in all the cases award to the Administrator-General the costs
of any proceedings taken by him under those sections to be
paid out of the estate as part of the testamentary or intestate
expenses thereof.”
Section 12 postulates those eventualities in which administration can be granted to
the Administrator General :
“12. Grant of administration to Administrator-General in certain
cases :- If, in the course of proceedings to obtain letters of
administration under the provisions of Section 9 or Section 10,
and within such period as to the High Court seems reasonable,
no person appears and establishes his claim to probate of a will,
or to a grant of letters of administration as next-of kin of the
deceased, or satisfies the High Court that he has taken and is
prosecuting with due diligence other proceedings for the
protection of the estate, the case being one in which the
obtaining of such probate or letters of administration is not
obligatory under the provisions of the Indian Succession Act,
1925 (39 of 1925), and the High Court is satisfied that there is
apprehension of misappropriation, deterioration, or waste of the
20
assets or that the grant of letters of administration in such
proceedings is otherwise necessary for the protection of the
assets; or if a person who has established his claim to a grant of
letters of administration as next-of-kin of the deceased fails to
give such security as may be required of him by law; the High
Court may grant letters of administration to the
Administrator-General.”
Under Section 14, the grant of letters of administration to the Administrator General
can be revoked where an executor or next of kin of a deceased establishes a claim
to probate or letters of administration in preference to the Administrator General :
“14. Recall of Administrator-General's administration and grant
of probate etc., to executor or next-of-kin :- If an executor or
next-of-kin of the deceased, who has not been personally
served with a citation or who has not had notice thereof in time
to appear pursuant thereto, establishes to the satisfaction of
the High Court a claim to probate of will or to letters of
administration in preference to the Administrator-General, any
letters of administration granted in accordance with the
provisions of this Act to the Administrator-General :
(a) shall be revoked, if a will of the deceased is proved in the
State; (b) may be revoked, in other cases, if an application for
that purpose is made within six months after the grant to the
Administrator-General and the High Court is satisfied that there
has been no unreasonable delay in making the application, or
in transmitting the authority under which the application is
made; and probate or letters of administration may be granted
to such executor or next-of-kin as the case may be.”
The effect of the grant of probate or letters of administration is provided by Section
20(1) which reads thus :
“20. Effect of probate or letters granted to Administrator-General
:- (1) Probate or letters of administration granted by the High
Court to the Administrator-General of any State shall have effect
over all the assets of the deceased throughout India and shall
be conclusive as to the representative title against all debtors of
the deceased and all persons holding such assets, and shall
afford full indemnity to all debtors paying their debts and all
persons delivering up such assets to such
Administrator-General.”
21
23 The above provisions enacted by Parliament define the ambit of the powers
vested in the Administrator General and the circumstances in which he can move
the High Court. Essentially, the Administrator General steps in to protect the estate
of a person who has died and no person to whom any court would have jurisdiction
to commit the administration of the estate has come forth. The Administrator
General is authorised by law to move the High Court to obtain letters of
administration. Where the property or estate of the deceased is in imminent danger,
the Administrator General can be empowered by the High Court to take immediate
steps to safeguard the estate. While permitting the Administrator General to apply to
the High Court for the grant of letters of administration, the law allows any other
individual to appear and establish a claim before the High Court. Where a claim to
probate or letters of administration in preference to the Administrator General is
established, an order of revocation can be passed by the High Court. Such
adjudicatory functions are entrusted to the High Court. The Administrator General,
as a public official, is conferred with duties and obligations to secure and safeguard
the administration of the estate left behind by a deceased individual in the
circumstances adverted to in the statute. The legislation has not reserved a judicial
power to the Administrator General. Parliament in its wisdom has made provisions to
ensure that estates are not frittered away upon the death of persons who do not
leave behind legal heirs, by allowing the Administrator General to invoke the
jurisdiction of the High Court to safeguard such estates. The conferment of
adjudicatory functions upon the High Court safeguards against an abuse of power
and facilitates an adjudication of private claims.
22
24 In the present case, for the reasons indicated above, we have come to the
conclusion that the Collector acted manifestly in excess of his jurisdiction and
launched upon an adjudicatory exercise. This power was not vested in him. The
counter affidavit filed in these proceedings relies upon the provisions of Sub-section
2 of Section 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 in its application to the State of Uttarakhand. Sub- sections 1 and 2 of
Section167 provide as follows :
“167 (1). The following consequences shall ensue in respect of
every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall, with effect from the date
of transfer, be deemed to have vested in the State Government
free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of
transfer shall, with effect from the said date, be deemed to have
vested in the State Government free from all encumbrances;
and
(c) the transferee may remove other moveable property or the
materials of any immovable property existing on such land on
the date of transfer within such time as may be prescribed.”
“167 (2). Where any land or other property has vested in the
State Government under sub section (1) it shall be lawful for the
Collector to take over possession over such or other property
and to direct that any person occupying such land or other
property be evicted therefrom. From the purposes of taking over
such possession or evicting such unauthorised occupants, the
Collector may use or cause to be used such force as may be
necessary.”
25 The power conferred upon the Collector by Sub-section 2 of Section 167 can
be exercised only in the circumstances set out in Sub-Section 1. In the present
case, the provision was clearly not attracted.
23
26 For the above reasons, we allow the appeal and set aside the impugned
judgment of the High Court dated 15 May 2007. In consequence, the Writ Petition
filed by the Appellant is allowed and the order dated 12 May 2003 passed by the
Collector is quashed and set aside.
27 The Civil Appeal is disposed of in the above terms. There shall be no order as
to costs.
……........................................J
[N V RAMANA]
................................................J
[Dr D Y CHANDRACHUD]
New Delhi;
September 22, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3878 OF 2009
KUTCHI LAL RAMESHWAR ASHRAM
TRUST EVAM ANNA KSHETRA
TRUST THR. VELJI DEVSHI PATEL ....APPELLANT
Versus
COLLECTOR, HARIDWAR & ORS. .....RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 This appeal has arisen from a judgment rendered on 15 May 2007 by a
Division Bench of the High Court of Uttarakhand at Nainital. Finding no substance
in the writ petition filed under Article 226 of the Constitution, the High Court affirmed
the order passed by the Collector, Haridwar on 12 May 2003 holding that the
property in dispute stands vested in the government under Section 29 of the Hindu
Succession Act, 1956. This finding has been premised on the basis that there exists
no heir to succeed to the property following the death of Mohan Lal.
2
2 The petitioner claims to be a public trust registered under the Bombay Public
Trusts Act, 1950. The Trust claims to have a vast amount of property at Haridwar
which is being used for charitable purposes including (i) arranging for the stay of
pilgrims and saints who visit Haridwar and providing food and other facilities to
them; and (ii) performing and organizing religious functions. The petitioner conducts
a Sanskrit Vidyalaya as well as a dispensary.
3 Swamy Udhav Das Ji Maharaj was visually challenged. On 28 November
1955, he is stated to have purchased land admeasuring two bighas and fifty khewat
at Haridwar in the name of his chela, Mohan Lal. According to the petitioner, the
Swamy founded the Kutchi Lal Rameshwar Ashram Trust. He is stated to have
executed a will on 22 October 1956 nominating some individuals who would
manage and administer his properties, including the property in question, after his
lifetime. According to the petitioner, this was a second registered will executed by
the Swamy since some of those who were nominated in an earlier registered will
were not inclined to accept the responsibility.
4 On 13 January 1957, the Swamy died. The Trust is stated to have been
registered on 11 November 1957. Among the objects of the Trust, are the following:
“4. The main purpose for which the Ashram was established
at Haridwar under the inspiration of Mahrajshri Odhavdasji has
been to provide a centre and shelter for those Kutchi people in
particular and others in general who go to the Holy Shrines at
Haridwar, for the purposes of devotion and their peace of mind
and the same shall continue to be the main objective and
purposes of the Trust along with any other objective which might
further the main object such as religious education prayers etc.
5. It was the cherished object of the revered Maharajshri
Odhavdasji that the Ashram should provide both shelter and
3
food to the deserving and this is being done within the limitation
of the resources at the disposal of the Trust. Many people have
expressed their desire to donate moneys for the purposes of
running an “Anna Kshetra” as desired by their late Guru
Maharaj.”
According to the petitioner, all the movable and immovable properties were vested in
the Trust. On 23 March 1958, an unregistered declaration is stated to have been
executed by Mohan Lal stating that though the property was purchased in his name
by the late Swamy, neither he nor his legal heirs would have any rights in the
property. The whereabouts of Mohan Lal are not known since 1958.
5 On 10 July 2001, a suit1
was instituted by the petitioner seeking an injunction
against the third respondent (an individual by the name of Swamy Mahanand
Awdhut Tatambri) described in these proceedings as :
“Chela Swamy Brahmchari Ji Awdhut, Resident of Tatambri
Ashram, Sapt Sarovar Road, Bhoopat Wala, Haridwar,
Uttarakhand.”
The suit for injunction appears to have been instituted on the ground that the third
respondent was attempting to make a construction on some part of the property in
dispute. A few months after the institution of the suit, the third respondent filed a
complaint on 15 October 2001 before the Collector alleging that the property
belonged to Mohan Lal. According to him, a Patta was executed on 28 November
1955 in favour of Mohan Lal by Govind Ram and Shiv Ram. According to the
complaint, Mohan Lal had died and there being no legal heir, the property stands
vested in the state government under Section 29 of the Hindu Succession Act 1958.
1 Suit 225 of 2011
4
6 The Collector issued a notice to the petitioner following receipt of the
complaint. A reply was filed before the Collector on 13 November 2001. The reply
traces the acquisition of the property by the late Swamy in the name of his disciple
Mohan Lal on 28 November 1955 and adverted to the will executed and registered
by the Swamy on 22 November 1956. The reply relied upon the declaration by
Mohan Lal on 23 March 1958 stating that he had no right or interest in the property.
The reply adverted to the construction carried upon the property by the Kutchi Lal
Rameshwar Ashram Trust after plans were duly sanctioned by Haridwar
Development Authority. The reply also referred to the fact that the property has been
assessed to municipal taxes in the name of the Trust. The Trust claims to have built
upon the property and to be in occupation without interruption for forty-five years.
Moreover, it was stated that a suit before the Civil Judge, Haridwar was instituted by
the Trust since Swamy Mahanand Awdhut Tatambri who had recently purchased the
adjoining property had carried out certain unauthorized constructions that affected
the rights of the Trust. The petitioner claimed that the complaint against it was
instituted before the Collector as a reprisal for the dispute with the adjoining owner
which had led to the institution of a suit before the Civil Court.
7 On 12 May 2003, the Collector at Haridwar adjudicated upon the notice to
show cause issued by him. The Collector held that a patta of the property was
secured by Mohan Lal on 15 July 1955 and on 28 November 1955. According to the
Collector, the Trust had not submitted any documentary evidence from which it could
be deduced that the property had been purchased in the name of Mohan Lal from
5
the funds of Swamy Udhav Das. According to the Collector, the alleged admission
deed of 23 March 1958 by Mohan Lal could not be relied upon, since he was shown
to be a resident of Reha Kuch (presently Chandrakela) whereas the person in
whose favour the patta had been executed was a resident of village Ishwar Nagar.
According to the Collector, the Swamy died before 11 November 1957. The Trust, in
the view of the Collector, had failed to submit evidence in respect of the heirs of
Mohan Lal. The Collector proceeded to draw an inference of the death of Mohan Lal
since he was not heard of for seven years. On this basis, the Collector arrived at the
conclusion that the property vested in the State Government by the operation of law.
The City Magistrate at Haridwar was directed to take immediate action for taking
over the possession of the property.
8 Aggrieved by the order of the Collector, Haridwar, which held that the property
had vested in the state government by the operation of Section 29 of the Hindu
Succession Act, 1956, and directing the City Magistrate to take over possession, the
petitioner challenged the decision in a writ petition under Article 226 of the
Constitution before the High Court of Uttarakhand. The Trust claimed to be in the
management of the property for over forty-five years and submitted that the only
manner in which action adverse to it could have been taken was on the basis of a
title action pursued through the Administrator General or through a Civil Court. The
Collector, in the submission of the Trust, could not assume the power to decide a
question of title in the manner in which he had purported to do.
6
9 Certain developments took place after the Trust instituted writ proceedings
before the High Court of Uttarakhand in May 2003. The third respondent had filed an
appeal against an order of interim injunction passed in favour of the Trust in the suit
instituted by it in the Civil Court. The appeal was dismissed by the Additional District
Judge, Haridwar on 24 December 2003. On 9 May 2005, a Division Bench of the
High Court admitted the writ petition of the trust challenging the order of the
Collector. The High Court stayed the order on the ground, prima facie, that the
Collector had no jurisdiction to do so. On 10 April 2007, a writ petition filed by the
trust was dismissed (erroneously according to the petitioner on the basis of the facts
of another case). The petitioner filed a review petition. The review was allowed by a
Division Bench of the High Court on 15 May 2007 and the earlier order was recalled.
Eventually, it was by its Judgment and Order dated 15 May 2007 that the Division
Bench upheld the decision of the Collector.
10 The High Court held that the deed of acceptance alleged to have been
executed by Mohan Lal on 23 March 1958 is not a registered document. Moreover, it
has been stated that the executor of the deed of acceptance appears to be a person
different from the person by the name of Mohan Lal who was the owner of the
disputed land. According to the High Court, there was nothing to indicate that Mohan
Lal had died prior to the preparation of the Deed of Trust on 11 November 1957. The
High Court further held that the land was purchased by Mohan Lal in whose favour
the original pattas were executed but there was no evidence to indicate that the
funds were provided by the late Swamy. The findings of the High Court are in the
following terms:
7
“10 Undisputedly the land in question was purchased by Mohan
Lal through pattas dated 28 November 1955 and 15 July 1955
whereas the appellant’s claim is that the land was purchased by
Mahant Udhav Das in the name of Mohan Lal, but no evidence
has been adduced on behalf of the appellant showing that the
land was purchased from the money of Mahant Udhav Das Ji.
The appellant has not been able to establish that Mohan Lal on
whose name the land was purchased and the Mohan Lal who
had executed the acceptance deed is the same and one person.
The appellant trust has not claimed itself the legal heir of Mohan
Lal, the owner of the disputed property, but it has claimed the
ownership on the basis of the will dated 22 October 1956 which
was not executed by Mohan Lal. The owner of the land, Mohan
Lal has no legal heir, therefore, the disputed land was liable to
be devolved in the State Government in view of the provision of
Section 29 of the Hindu Succession Act. We do not find any
infirmity in the order passed by the Collector in this matter.”
11 Leave has been granted in these proceedings on 12 May 2009, when an
order of status quo was issued.
12 On behalf of the appellants, it has been submitted by Mr Aryama Sundaram,
learned Senior Counsel that :
(i) The Collector has acted without jurisdiction, in assuming the powers of the civil
court and adjudicating on the vesting of the property in the state by escheat
under Section 29 of the Hindu Succession Act, 1956;
(ii) In view of the clear dispute, involving the setting up of rival titles – the
government claiming under Section 29 and the Trust setting up a contrary title, it
was not open to the Collector to act as a judge in his own cause in his capacity
as a representative of the state government;
8
(iii) Where a dispute of title or in regard to the absence of legal heirs within the
meaning of Section 29 arises, it is only a civil court which can exercise
jurisdiction; and
(iv) Assuming that the property belonged to Mohan Lal, the Collector ought not to
have proceeded in the matter without due notice to him and hence the inference
that Mohan Lal was dead, as not having been heard of for seven years, is
fallacious.
13 On the other hand, it has been submitted on behalf of the state government
that the order passed by the Collector constitutes a valid exercise of jurisdiction. It
was urged that the Collector had justifiably come to the conclusion that Mohan Lal
had not been succeeded by any heir, upon which the property must be regarded as
having vested in the state under Section 29 of the Hindu Succession Act, 1956. It
may be noted that in the counter affidavit which has been filed in these proceedings,
the first and second respondents have adverted to the source of power of the
Collector being traceable to Section 29 of the Hindu Succession Act, 1956, besides
which reliance has been placed on Section 167 (2) of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 in its application to the State of Uttarakhand.
14 Shri M N Rao, learned Senior Counsel appearing on behalf of the third
respondent has adopted the submission which was urged before the Collector by his
client as complainant. Learned Senior Counsel however urged that it was for the
Collector and the state to sustain the order which has been passed.
9
15 Before we deal with the merits of the rival contentions, an issue needs to be
addressed at the threshold. Initially, on 16 July 2007, notice was issued “confined to
the question as to whether the Collector has power to pass an order under Section
29 of Hindu Succession Act, 1956 in view of the provisions of the
Administrators-General Act, 1963”. Leave was granted on 12 May 2009. Relying
upon the initial order, which confined the notice to a specific issue, learned Counsel
for the state submitted that the grant of leave subsequently should not be regarded
as having expanded the scope of the controversy to all the issues raised in the
appeal. Hence, the submission is that the only issue which ought to be addressed is
that which was adverted to when notice was issued.
16 While addressing the preliminary issue, it would, in our view, be inappropriate
and, perhaps even unsafe, to lay down a broad generalisation. The constitutional
jurisdiction which is conferred upon this Court has its basis in the advancement of
justice. The power of the court to render justice should not be constricted by a
narrow approach to its mandate. In the context of a criminal case, a Bench of two
Judges of this Court in Yomeshbhai Pranshankar Bhatt v State of Gujarat2
considered a situation where a conviction under Section 302 of the Penal Code had
been affirmed by the High Court. Initially, this Court issued notice confined only to
the question as to whether the accused was guilty of the commission of an offence
under any of the parts of Section 304 and not under Section 302. The issue was
whether the ambit of the appeal was confined to what was stated in the notice
2 (2011) 6 SCC 312
10
initially issued. In this context, the Court adverted to the Supreme Court Rules, 1966
which have been framed under Article 145 of the Constitution. Order XLVII Rule 6 of
the rules of procedure of this Court provides as follows:
“6. Nothing in these Rules shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders as
may be necessary for the ends of justice or to prevent abuse of
the process of the Court.”
Article 142 of the Constitution enables this Court, in the exercise of its jurisdiction, to
pass such decrees and make such orders as is necessary for doing complete justice
in any case or matter pending before it. After adverting to Article 142, this Court held
as follows :
“18. It is, therefore, clear that the Court while hearing the matter
finally and considering the justice of the case may pass such
orders which the justice of the case demands and in doing so,
no fetter is imposed on the Court's jurisdiction except of course
any express provision of the law to the contrary, and normally
this Court cannot ignore the same while exercising its power
under Article 142. An order which was passed by the Court at
the time of admitting a petition does not have the status of an
express provision of law. Any observation which is made by the
Court at the time of entertaining a petition by way of issuing
notice are tentative observations. Those observations or orders
cannot limit this Court's jurisdiction under Article 142.”
Hence, the Court observed that at the time of final hearing, it would not be precluded
from considering the controversy “in its entire perspective” and while doing so, it is
not “inhibited by any observation, any order made at the time of issuing the notice”.
A similar view was taken in an earlier decision in State of Uttaranchal v Alok
Sharma3
. In Indian Bank v Godhara Nagrik Cooperative Credit Society
3 (2009) 7 SCC 647
11
Limited4
, a Bench of two Judges of this Court held that though a limited notice was
issued initially, leave having been granted thereafter, “all the contentions of the
parties are now open”.
17 We respectfully reiterate and adopt this view which is based on a sagacious
approach to the constitutional powers that are conferred upon the Court. Article 142
embodies the fundamental principle that the jurisdiction of the court is to render
complete justice and as an incident of it, the court may pass such decrees or orders
as it considers fit. When the court initially issues a limited notice but subsequently
grants leave, the scope of the appeal does not raise a matter of jurisdiction but of
judicial discretion. Since it constitutes a matter of discretion and not of jurisdiction,
the guiding principle has to be the advancement of substantial justice.
18 Section 29 of the Hindu Succession Act, 1956 has been invoked by the
Collector. Section 29 provides as follows:
“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.”
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 government. Though
the property devolves on government in such an eventuality, yet the government
4 (2008) 12 SCC 541
12
takes it subject to all its obligations and liabilities. The state in other words 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”, as held in State of Punjab v Balwant
Singh5
. This principle from Halsbury’s Laws of England6
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. In State of Bihar v Radha Krishna Singh7
, a Bench
of three Judges of this Court formulated the principle in the following observations :
“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 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.” (id at p. 216)
Mulla’s Hindu Law8
succinctly summarises the position thus :
“Where the Crown or Government claims by escheat, the onus
5 (1992) Suppl (3) SCC 108
6 4
th Ed. Vol 17, para 1439
7 (1983) 3 SCC 118
8 Twenty – second edition, pp. 1260-1261
13
lies on it to show that the owner of the estate died without heirs.
An estate taken by escheat is subject to the trusts, charges and
legal obligations (if any) previously affecting the estate, e.g.,
mortgages and other encumbrances. This section rules that in
case of failure of all the heirs recognised under the Act, on the
death of the owner intestate, his or her property devolves on the
Government. The Government takes the property subject to all
legal obligations and liabilities to which an heir would have been
subject if the property had devolved upon the heir by
succession. The word ‘failure’ used in the section is very clear
and indicative of the fact that there must be a absence of heirs
of the intestate.”
In Rambir Das v Kalyan Das9
a Bench of two learned Judges of this Court dealt
with a case of Shebaitship. Citing the authority of Justice B K Mukherjea’s
celebrated Tagore Law Lectures with approval, this Court took note of the position
of law elucidated in the lectures :
“As shebaitship is property, it devolves like any other property
according to the ordinary Hindu law of inheritance. If it remains
in the founder, it follows the line of founder's heirs; if it is
disposed of absolutely in favour of a grantee, it devolves upon
the heirs of the latter in the ordinary way and if for any reason
the line appointed by the donor fails altogether, shebaitship
reverts to the family of the founder.”
On the question of escheat, Justice B K Mukherjea observes thus :
“As there is always an ultimate reversion to the founder or his
heirs, in case the line of Shebaits is extinct, strictly speaking no
question of escheat arises so far as the devolution of
shebaitship is concerned. But cases may be imagined where
the founder also has left no heirs, and in such cases the
founder's properties may escheat to the State together with the
endowed property. In circumstances like these, the rights of the
State would possibly be the same as those of the founder
himself, and it would be for it to appoint a Shebait for the
debutter property. It cannot be said that the State receiving a
dedicated property by escheat can put an end to the trust and
treat it as secular property.”
In other words, even in a situation where a founder or his line of heirs is extinct, and
the properties escheat to the state, the state which receives a dedicated property is
9 (1997) 4 SCC 102
14
subject to the trust and cannot treat it in the manner of a secular property. In fact, we
may note, Section 29 expressly stipulates that the state “shall take the property
subject to all the obligations and liabilities to which an heir would have been
subject.”
19 In deciding this case, this Court must also bear in mind the settled principle
that unless the founder of a math or religious institution has laid down the principle
governing succession to the endowment, succession is regulated by the custom or
usage of the institution. This principle was enunciated over six decades ago by this
Court in Mahant Sital Das v Sant Ram10, rendered by Justice B K Mukherjea,
speaking for a Bench of four judges :
“10. In the appeal before us the contentions raised by the parties
primarily centre round the point as to whether after the death of
Kishore Das, the plaintiff or Defendant 3 acquired the rights of
Mahant in regard to the Thakardwara in dispute. The law is well
settled that succession to Mahantship of a Math or religious
institution is regulated by custom or usage of the particular
institution, except where a rule of succession is laid down by the
founder himself who created the endowment. As the Judicial
Committee laid down [ Vide Genda Puri v. Chhatar Puri, 13 IA
100, 105] in one of the many cases on this point; “in determining
who is entitled to succeed as Mohunt, the only law to be
observed is to be found in the custom and practice, which must
be proved by testimony, and the claimant must show that he is
entitled according to the custom to recover the office and the
land and property belonging to it…. Mere infirmity of the title of
the defendant, who is in possession, will not help the plaintiff”.
20 The basic issue which has to be addressed in the light of the above principles
is whether the Collector had jurisdiction to decide a question of title by assuming to
himself the power of an adjudicatory forum. The order of the Collector indicates that
10 AIR 1954 SC 606
15
the issue as to whether the property would vest in the state government as a result
of a failure of heirs within the meaning of Section 29 was a seriously disputed issue
turning upon an adjudication of conflicting claims. In the process of determining the
issue purportedly under Section 29, the Collector has adjudicated upon various
factual matters including (i) whether the property was purchased in 1955 by Mohan
Lal with the funds provided by Swamy Udhav Das; (ii) the legality of the registered
will stated to have been executed by the Swamy on 22 October 1956; (iii) the
identity of the person who executed the deed of acceptance dated 23 March 1958 in
comparison with the person in whose name the patta had been acquired in 1955;
(iv) whether Mohan Lal died prior to the execution of the deed of Trust on 11
November 1957; and (v) whether a presumption in regard to the death of Mohan Lal
would arise upon his not being heard of allegedly for seven years. The Collector has
proceeded to adjudicate on these, among other, factual issues. Section 29, it may
be noted, embodies a principle but does not provide a procedural mechanism for
adjudication upon disputed questions. The canvas of the controversy before the
Court is an abundant indication of matters which were seriously in dispute. The
contention of the state that the property would devolve upon it as a result of Mohan
Lal being presumed to be dead and having left behind no legal heir is seriously in
question. Such a matter could not have been adjudicated upon by the Collector by
assuming to himself a jurisdiction which is not conferred upon him by law.
21 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
16
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. To allow administrative authorities of the state – including the
Collector, as in the present case – to adjudicate upon matters of tittle involving civil
disputes would be destructive of the rule of law. 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. In holding that
the Collector acted without jurisdiction in the present case, it is not necessary for the
court to go as far as to validate the title which is claimed by the petitioner to the
property. The court is not called upon to decide whether the possession claimed by
the trust of over forty-five years is backed by a credible title. The essential point is
that such an adjudicatory function could not have been arrogated to himself by the
Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction
of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure
1908.
22 We may at this stage also advert to the provisions of the Administrators –
General Act, 1963. The Act provides for the appointment of persons who are vested
with the powers of an Administrator General. Section 2(a) defines the expression
17
‘assets’ thus :
“(a) "assets" means all the property, movable and immovable, of
a deceased person, which is chargeable with and applicable to
the payment of his debts and legacies, or available for
distribution among his heirs and next of-kin”.
The Administrator General is notified under Section 3.
Section 7 allows for the grant of letters of administration by the High Court to the
Administrator General of the state, unless they are granted to the next of kin of the
deceased. Section 7 reads as follows :
“7. Administrator-General entitled to letters of administration,
unless granted to next-of kin :- Any letters of administration
granted by the High Court shall be granted to the
Administrator-General of the State unless they are granted to
the next-of-kin of the deceased.”
Section 9 empowers the Administrator General to apply to the High Court for the
administration of estates in specified circumstances :
“9. Right of Administrator-General to apply for administration of
estates :-
(1) If- (a) any person has died leaving within any State assets
exceeding rupees ten lakhs in value, and
(b) (whether the obtaining of probate of his will or letters of
administration to his estate is or is not obligatory), no person to
whom any court would have jurisdiction to commit
administration of such assets has, within one month after his
death, applied in such State for such probate, or letters of
administration, and
(c) (in cases where the obtaining of such probate or letters of
administration is not obligatory under the provisions of the
Indian Succession Act, 1925) , no person has taken other
proceedings for the protection of the estate, the
Administrator-General of the State in which such assets are,
may, subject to any rules made by the State Government, within
a reasonable time after he has had notice of the death of such
person, and of his having left such assets, take such
proceedings as may be necessary to obtain from the High Court
18
letters of administration of the estate of such person.
(2) The Administrator-General shall not take proceedings under
this section unless he is satisfied, that there is apprehension of
misappropriation, deterioration or waste of such assets if such
proceedings are not taken by him or that such proceedings are
otherwise necessary for the protection of the assets.”
The Administrator General is statutorily empowered to move the High Court to
protect the assets or estate of a deceased from dissipation.
Section 10 empowers the Administrator General to move the High Court to collect
and take possession of the assets of a deceased person where there is imminent
danger of misappropriation, deterioration or waste of assets :
“10. Power of Administrator-General to collect and hold assets
where immediate action is required :-
(1) Whenever any person has died leaving assets within any
State exceeding rupees ten lakhs in value, and the High Court
for that State is satisfied that there is imminent danger of
misappropriation, deterioration or waste of such assets,
requiring immediate action, the High Court may, upon the
application of the Administrator-General or of any person
interested in such assets or in the due administration thereof,
forthwith direct the Administrator-General - (a) to collect and
take possession of such assets, and
(b) to hold, deposit, realise, sell or invest the same according to
the directions of the High Court, and, in default of any such
directions, according to the provisions of this Act so far as the
same are applicable to such assets.
(2) Any order of the High Court under sub-section (1) shall
entitle the Administrator General
(a) to maintain any suit or proceeding for the recovery of such
assets;
(b) if he thinks fit, to apply for letters of administration of the
estate of such deceased person;
(c) to retain out of the assets of the estate any fees chargeable
under rules made under this Act; and
(d) to reimburse himself for all payments made by him to
respect of such assets which a private administrator might
lawfully have made.”
Under Section 11, the High Court is empowered to grant probate or letters of
administration to any other person who appears and establishes his claim :
19
“11. Grant of probate or letters of administration to person
appearing in the course of proceedings taken by
Administrator-General :- If, in the course of proceedings to
obtain letters of administration under the provisions of Section 9
or Section 10, -
(a) any person appears and establishes his claim-
(i) to probate of the will of the deceased; or
(ii) to letters of administration as next-of-kin of the deceased,
and gives such security as may be required of him by law; or
(b) any person satisfies the High Court that he has taken and is
prosecuting with due diligence other proceedings for the
protection of the estate, the case being one in which the
obtaining of such probate or letters of administration is not
obligatory under the provisions of the Indian Succession Act,
1925 (39 of 1925); or
(c) the High Court is satisfied that there is no apprehension of
misappropriation, deterioration, or waste of the assets and that
the grant of letters of administration in such proceedings is not
otherwise necessary for the protection of the assets; the High
Court shall –
(1) in the case mentioned in clause (a), grant probate of the will
or letters of administration accordingly;
(2) in the case mentioned in clause (b) or clause (c), drop the
proceedings; and
(3) in all the cases award to the Administrator-General the costs
of any proceedings taken by him under those sections to be
paid out of the estate as part of the testamentary or intestate
expenses thereof.”
Section 12 postulates those eventualities in which administration can be granted to
the Administrator General :
“12. Grant of administration to Administrator-General in certain
cases :- If, in the course of proceedings to obtain letters of
administration under the provisions of Section 9 or Section 10,
and within such period as to the High Court seems reasonable,
no person appears and establishes his claim to probate of a will,
or to a grant of letters of administration as next-of kin of the
deceased, or satisfies the High Court that he has taken and is
prosecuting with due diligence other proceedings for the
protection of the estate, the case being one in which the
obtaining of such probate or letters of administration is not
obligatory under the provisions of the Indian Succession Act,
1925 (39 of 1925), and the High Court is satisfied that there is
apprehension of misappropriation, deterioration, or waste of the
20
assets or that the grant of letters of administration in such
proceedings is otherwise necessary for the protection of the
assets; or if a person who has established his claim to a grant of
letters of administration as next-of-kin of the deceased fails to
give such security as may be required of him by law; the High
Court may grant letters of administration to the
Administrator-General.”
Under Section 14, the grant of letters of administration to the Administrator General
can be revoked where an executor or next of kin of a deceased establishes a claim
to probate or letters of administration in preference to the Administrator General :
“14. Recall of Administrator-General's administration and grant
of probate etc., to executor or next-of-kin :- If an executor or
next-of-kin of the deceased, who has not been personally
served with a citation or who has not had notice thereof in time
to appear pursuant thereto, establishes to the satisfaction of
the High Court a claim to probate of will or to letters of
administration in preference to the Administrator-General, any
letters of administration granted in accordance with the
provisions of this Act to the Administrator-General :
(a) shall be revoked, if a will of the deceased is proved in the
State; (b) may be revoked, in other cases, if an application for
that purpose is made within six months after the grant to the
Administrator-General and the High Court is satisfied that there
has been no unreasonable delay in making the application, or
in transmitting the authority under which the application is
made; and probate or letters of administration may be granted
to such executor or next-of-kin as the case may be.”
The effect of the grant of probate or letters of administration is provided by Section
20(1) which reads thus :
“20. Effect of probate or letters granted to Administrator-General
:- (1) Probate or letters of administration granted by the High
Court to the Administrator-General of any State shall have effect
over all the assets of the deceased throughout India and shall
be conclusive as to the representative title against all debtors of
the deceased and all persons holding such assets, and shall
afford full indemnity to all debtors paying their debts and all
persons delivering up such assets to such
Administrator-General.”
21
23 The above provisions enacted by Parliament define the ambit of the powers
vested in the Administrator General and the circumstances in which he can move
the High Court. Essentially, the Administrator General steps in to protect the estate
of a person who has died and no person to whom any court would have jurisdiction
to commit the administration of the estate has come forth. The Administrator
General is authorised by law to move the High Court to obtain letters of
administration. Where the property or estate of the deceased is in imminent danger,
the Administrator General can be empowered by the High Court to take immediate
steps to safeguard the estate. While permitting the Administrator General to apply to
the High Court for the grant of letters of administration, the law allows any other
individual to appear and establish a claim before the High Court. Where a claim to
probate or letters of administration in preference to the Administrator General is
established, an order of revocation can be passed by the High Court. Such
adjudicatory functions are entrusted to the High Court. The Administrator General,
as a public official, is conferred with duties and obligations to secure and safeguard
the administration of the estate left behind by a deceased individual in the
circumstances adverted to in the statute. The legislation has not reserved a judicial
power to the Administrator General. Parliament in its wisdom has made provisions to
ensure that estates are not frittered away upon the death of persons who do not
leave behind legal heirs, by allowing the Administrator General to invoke the
jurisdiction of the High Court to safeguard such estates. The conferment of
adjudicatory functions upon the High Court safeguards against an abuse of power
and facilitates an adjudication of private claims.
22
24 In the present case, for the reasons indicated above, we have come to the
conclusion that the Collector acted manifestly in excess of his jurisdiction and
launched upon an adjudicatory exercise. This power was not vested in him. The
counter affidavit filed in these proceedings relies upon the provisions of Sub-section
2 of Section 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 in its application to the State of Uttarakhand. Sub- sections 1 and 2 of
Section167 provide as follows :
“167 (1). The following consequences shall ensue in respect of
every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall, with effect from the date
of transfer, be deemed to have vested in the State Government
free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of
transfer shall, with effect from the said date, be deemed to have
vested in the State Government free from all encumbrances;
and
(c) the transferee may remove other moveable property or the
materials of any immovable property existing on such land on
the date of transfer within such time as may be prescribed.”
“167 (2). Where any land or other property has vested in the
State Government under sub section (1) it shall be lawful for the
Collector to take over possession over such or other property
and to direct that any person occupying such land or other
property be evicted therefrom. From the purposes of taking over
such possession or evicting such unauthorised occupants, the
Collector may use or cause to be used such force as may be
necessary.”
25 The power conferred upon the Collector by Sub-section 2 of Section 167 can
be exercised only in the circumstances set out in Sub-Section 1. In the present
case, the provision was clearly not attracted.
23
26 For the above reasons, we allow the appeal and set aside the impugned
judgment of the High Court dated 15 May 2007. In consequence, the Writ Petition
filed by the Appellant is allowed and the order dated 12 May 2003 passed by the
Collector is quashed and set aside.
27 The Civil Appeal is disposed of in the above terms. There shall be no order as
to costs.
……........................................J
[N V RAMANA]
................................................J
[Dr D Y CHANDRACHUD]
New Delhi;
September 22, 2017
