STATE OF RAJASTHAN AND ORS. versus LORD NORTHBOOK AND ORS. on 28 August 2019

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SUPREME COURT REPORTS

[2019] 11 S.C.R.

STATE OF RAJASTHAN AND ORS.

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v.

LORD NORTHBOOK AND ORS.

(Civil Appeal No . 6677 of 2019)

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AUGUST 28, 2019

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Rajasthan Escheats Regulation Act, 1956– s.2(4), Proviso tos.4, ss. 6, 7– Testator died in 1987 without any legal heirs, leavingvaluable properties situated in Khetri, Jhunjhunu, Rajasthan –CBefore his death, he executed Will bequeathing his properties to aTrust – Trustees filed probate petition before the Delhi High Courtfor probate of the Will – Objections filed by the agnates of thedeceased testator – Probate petition dismissed – Appeal pendingbefore the Division Bench – Direction by the Collector, JhunjhunuDto initiate proceedings under the Ecsheats Act in respect of theproperties left – Tehsildar took over possession of the properties –Writ petition filed by respondents challenging three communications/orders initiating the proceedings under the Act – Further, theCollector rejected the claims of the Trust based on Will and also theclaim of the agnates – Appeal of the Trust before the Board ofERevenue – Order of the Collector stayed, appeal pending –Thereafter, writ petition allowed – On appeal, held (per Curiam) :Matter referred to larger bench – Per Banumathi, J. Doctrine ofescheat postulates that where an individual dies intestate and doesnot leave behind an heir qualified to succeed to the property, theFproperty devolves on the Government – Absence of any heir is pre-condition for initiation of the proceedings for escheating of theproperty to the Government – In the present case, when the agnates/other persons claiming right in the estate withdrew their objections,naturally they accepted the claim/right of the Trust, which claimsthrough the Will – Inference has to be drawn that they have no rightGof claim in the properties– Further, when the appeals were pendingbefore the Delhi High Court and the Board of Revenue involvingdisputed questions, the High Court ought to have directed the partiesto avail efficacious alternative remedy – High Court erred inquashing the three communications and directing the State to hand H

over the possession of the properties to the respondents – Further,due procedure was followed as per the Escheats Act – State ofRajasthan right in treating the property as ‘bona vacantia’andinitiating proceedings under the Escheats Act – Per Banerjee, J.(Dissenting) : Doctrine of escheats postulates that where anindividual dies intestate and does not leave behind any heir qualifiedto succeed to the property, the property devolves on the Government– An abandoned property is a property for which no claim hasbeen made for a substantially long period, such as to raise thepresumption that the property is abandoned – In the present case,there were claimants who objected to the grant of probate – Eventhough they withdrew the objections, that would not make anydifference to their status as agates/cognates of the deceased testator– Further, judgment dismissing the probate petition is of noconsequence – If a will fails, the property has to be treated asintestate, devolving upon the natural heirs in accordance with theapplicable laws of succession – Dismissal of the probate case mightmean that the Trust cannot lay claim to the properties but, that doesnot make the properties escheated properties– Unless there werecomplete failure of heirs, the Escheats would not be attracted –Further, the writ petition filed in 1987 had been pending in theHigh Court for about three decades – Once the writ petition hadbeen entertained and kept pending, it should not be rejected on theground of existence of alternative remedy of appeal before the Boardof Revenue – Communications impugned were issued without anyfinding of complete failure of heirs – Constitution of India – Arts.226, 296 – Hindu Succession Act, 1956 – ss.3(a), (c), 8-13, 29 &30 – Indian Succession Act, 1925– ss.195, 276 – Doctrines – Will.

Constitution of India – Art.226 – Existence of alternativeremedy – Entertainment of writ petition – Testator died in 1987without any legal heirs, leaving valuable properties situated inKhetri, Jhunjhunu, Rajasthan – Before his death, he executed Will,bequeathing his properties to a Trust – Probate petition filed by theTrustees before the Delhi High Court – Dismissed – Appeal pendingbefore the Division Bench – Writ petition filed by the respondentschallenging the taking over possession of the properties by theTehsildar – Further, the Collector rejected the claims of the Trustbased on Will and also of the agnates – Appeal pending before theBoard of Revenue – Thereafter, writ petition allowed – Held: Per AB

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ABanumathi, J. When the appeals were pending before the Delhi HighCourt and before the Board of Revenue involving disputedquestions, the High Court ought to have directed the parties to availefficacious alternative remedy – Per Banerjee, J. (Dissenting) HighCourt, having regard to the facts of the case, has discretion toentertain or not to entertain a writ petition– Remedy of appealBavailed by the Trustees was against the order of the Collector passedin 2016 almost two decades after the writ petition was filed in 1987– Supervening circumstance of the order of the Collector and theappeal therefrom, would not justify the dismissal of the writ petitionon the ground of existence of alternative remedy – High Court rightlyCallowed the writ petition.

Rajasthan Escheats Regulation Act, 1956 – Scope and ambitof – Explained. (Per Banumathi, J.)

Rajasthan Escheats Regulation Act, 1956 – ss.4, 6 –Compliance of – Discussed. (Per Banumathi, J.)D

Doctrines – Doctrine of escheats – Claim of escheat – Burdenof proof – Held : Doctrine of escheat recognises State as paramountsovereign, in a clear case of failure of heirs – When a claim ofescheat is put forward by the Government, onus to establish that aproperty is bona vacantia is on the Government – Burden of proof isEheavy. (Per Banerjee, J.)

Constitution of India – Art.296 – Power under – Discussed –Rajasthan Escheats Regulation Act, 1956. (Per Banerjee, J.)

Words & Expressions – ‘Escheat’, ‘abandoned property’,‘bona vacantia’ – Meaning and usage of – Discussed. (PerFBanerjee, J.)

Directing the matter to be placed before Hon’ble the ChiefJustice of India for referring the matter to the Larger Bench, theCourt HELD: PER R. BANUMATHI, J.:G

1.1 Escheat is a bona vacantia and can be exercised only incase of abandoned property:- Article 296 is the constitutionalprovision enabling vesting of the property with the StateGovernment if a person dies intestate and without any heirqualified to succeed to his or her property. Section 29 of the HinduH

Succession Act, 1956 embodies the principle of escheat. Thedoctrine of escheat postulates that where an individual diesintestate and does not leave behind an heir who is qualified tosucceed to the property, the property devolves on theGovernment. Section 29 of the Hindu Succession Act comes intooperation only on there being a failure of heirs. The word ‘failure’used in Section 29 makes it clear that there must be a totalabsence of any heir to the person dying intestate. The absence ofany heir is a pre-condition for initiation of the proceedings forescheating of the property to the Government. The provisionsof the Rajasthan Escheats Regulation Act, 1956 will be applicableonly when the person dies intestate and/or is not succeeded byany of the person under Section 8 of the Hindu Succession Act orother succession laws. [Paras 19, 20 and 27][869-H; 870-A,C-D; 874-E-F]

1.2 Once the decision of the High Court of Delhi in theprobate case has gone against the Trust, the Trust has nosemblance of right, title and interest in the property, unless theTrust succeeds in the pending testamentary appeal, the Trusthas no right to lay claim in the properties under escheat. TheTrust having no right in the property, appears to have now takenup the cause of agnates, which the High Court did not keep inview. Once the decision in the probate case had gone againstthem, unless they succeed in the appeal, Khetri Trust has nosemblance of right to lay a claim over the properties. [Paras 32,33][876-E-F; 877-A]

1.3 As observed by the District Collector, there werenumber of objectors to the grant of probate in favour of KhetriTrust and all of them have gradually withdrawn their objectionsand the conduct of the agnates raises suspicion on their bonafide.When the agnates/other persons claiming right in the estate havewithdrawn their objections, naturally the inference is that theyhave accepted the claim/right of Khetri Trust, which claimsthrough the Will. An inference has to be drawn against the personsthat they have no right of claim in the properties. The so calledagnates or cognates cannot adopt double stand i.e. one claimingright in themselves and another allowing Khetri Trust to claim AB

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Athrough the Will. The respondents no.8 and 9 and respondentNo.6 have not produced any document showing their status asagnates nor initiated any proceeding for declaration of their status.There is no merit in the contention of the respondents that therewas no enquiry and satisfaction of the authorities as to “failure ofBheirs” before initiating proceedings under the Escheats Act. TheSub-Divisional Officer, Khetri has sent a report dated 16.02.1987to the District Collector, Jhunjhunu that the deceased expired inMumbai on 28.01.1987 without any legal heir and that he hasexecuted one Will by virtue of which Khetri trust was constituted.The SDO’s report also states about the absence of brother orCsister or any child or other legal heirs. [Paras 35-37][878-C-E,G-H; 879-A]

1.4 There is no merit in the contention of the respondentsthat the initiation of the proceedings under the Escheats Act wasdone without following the procedure laid down by the law andDwithout enquiry and the finding as to “failure of heirs”. The reportof the SDO dated 16.02.1987 and the letter of the DistrictCollector, Jhunjhunu dated 15.06.1987 addressed to theGovernment of Rajasthan shows that in compliance of theprovisions of the Escheats Act, an enquiry was conducted andthe authorities satisfied themselves as to “failure of heirs” beforeEinitiating action under Escheats Act. The materials on recordshow that the proceedings under the provisions of Escheats Acthas been initiated only after making proper enquiry about possiblelegal heirs of the deceased and on finding about the absence oflegal heirs, the authorities satisfied themselves that the propertiesFare bona vacantia. Due procedure was followed by the concernedofficials as per the Escheats Act following the provisions of Section4 of the Escheats Act and only after ascertaining that there was“failure of heirs”, the inventories of the properties were preparedand possession was taken over on all the vacant properties andGmangers were appointed for the requisite purposes. Deceaseddied way back in the year 1987. Till this date, the agnates havenot instituted any suit or proceedings to establish their statusnor obtained any declaration from the competent authorities. Inthe absence of any document declaring status of respondents No.4

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to 8 as cognates/agnates of the deceased, State of Rajasthancannot be faulted for initiating action under the Escheats Act,1956 treating the properties of the deceased as lawaris for wantof heir or successor or as bona vacantia. Moreover, it is not thecase of the respondents No.4 to 8 that they represent all theagnates. No claimant came forward before the Tehsildar; onlythe person who claimed as Manager of the Khetri Trust appearedbefore the Tehsildar. Considering the facts and circumstances ofthe case, initiation of proceedings under the Escheats Act cannotbe said to be erroneous warranting interference. [Paras 38,39][879-H; 880-A-F]

1.5 In Re: Compliance of the provisions of the Rajasthan-Escheats Regulation Act, 1956:The provisions of the RajasthanEscheats Act, 1956 regulate the procedure for initiation ofproceedings and making of enquiries in the matter of lawarisproperties vesting in the State of Rajasthan qua ultima heres underArticle 296 of the Constitution of India by escheat or as bonavacantia. The Act applies to the properties vesting in the State.Section 2(4) of the Rajasthan Escheats Regulation Act, 1956defines “property to which this Act applies”. The RajasthanEscheats Regulation Act is a complete Code in itself. Thepreamble sets out the scope and ambit of the statute. The Actbeing a comprehensive legislation sets out the entire schemerelating to the constitutional power under Article 296 and providesfor:- a) the making of enquiries; b) for custody and disposal; andc) properties vesting in the State under Article 296 of theConstitution. The scope of the Act is to:- a) determine the rightfulowner and to restore the property in his/her favour; b) secureand safeguard the property pending under such enquiry; c)adjudicate upon the contesting claims prima facie, at the sametime enabling the properties to avail remedies of Civil courts;and finally d) pass orders of vesting after giving opportunities toeverybody and after holding a detailed enquiry. Considering thescheme of the Act, in particular, Section 4, provides that whenthe Tehsildar receives information as to the existence withinTehsil of any property to which this Act applies, whether or not inthe possession of any person. the Tehsildar shall – a. ascertain A

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Awhether or not there is any person entitled to such property; b.prepare an inventory thereof showing the prescribed particulars;c. take over possession of it in the prescribed manner; and d.make a report of the Collector. As per the proviso to Section 4 ofthe Act, if the property is in the ‘present possession of any person’,such possession shall not be disturbed. [Paras 40-42][880-G-H;B881-A, C-H; 882-A]

1.6 The provisions of Section 4 of the Rajasthan EscheatsRegulation Act have been substantially complied with. The letterdated 03.07.1987 from Dy. Secretary to District Collector,Jhunjhunu to initiate proceedings under the Act was in referenceCto the letter dated 15.06.1987 sent by the District Collector,Jhunjhunu to the Dy. Secretary by which the District Collectorhad apprised about the factual position of the investigationconducted by it in view of the procedure laid down under Section4 of the Act. By letter dated 22.07.1987, the Tehsildar KhetriDwas directed to initiate proceedings under the Rajasthan EscheatsAct with respect to properties situated in Khetri and also to collectdetails of properties situated outside the State of Rajasthan. Byattachment order dated 03.08.1987, immovable properties i.e.agricultural lands and orchards in village Hada Fatehpura wastaken over. It is clear that in accordance with provisions of theEAct, the concerned officials first made inquiry to ascertain whetherthere was any legal heir of the deceased; issued notices and thenprepared the inventories and after the spot inspection, attachedthe properties and taken over the possession of the vacantproperties and submitted report to the Collector. The provisionsFof the Escheats Act, 1956 has been substantially complied with.

[Paras 44, 45][882-E-F; 883-D-E]

[Paras 44, 45][882-E-F; 883-D-E]

1.7 When the appeals were pending before the Delhi HighCourt and before the Board of Revenue involving disputedquestions, the High Court ought to have directed the parties toGavail efficacious alternative remedy. The High Court ignoring thesubsequent events that the respondents-agnates have withdrawntheir objections in the probate petition and dismissal of theprobate petition and the appeals pending before the Delhi HighCourt and appeal pending before the Board of Revenue erred inquashing the three communications/orders and directing the StateH

to hand over the possession of the properties to the respondents.Under Article 226 of the Constitution of India, the High Courthaving regard to the facts of the case has a discretion to entertainor not to entertain a writ petition. But the High Court has imposedupon itself certain restrictions; one of which is an effective andefficacious remedy available. When efficacious alternative remedyis available, the High Court would not normally exercise thejurisdiction. However, alternative remedy will not be a bar at leastin three instances:- (i) where writ petition is filed for enforcementof any of the fundamental rights; (ii) where there is a violation ofthe fundamental right or principles of natural justice; and (iii)where the orders or proceedings are wholly without jurisdictionor the vires of an Act is challenged; [vide Harbanslal Sahnia andAnother v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107.Notwithstanding the availability of alternative remedy, havingregard to the facts of the case, the High Court has a discretion toentertain or not to entertain a writ petition. But in the presentcase, while considering correctness of the communications/ordersissued way back in 1987, the High Court should have taken intoconsideration the subsequent events viz., the judgment passedby the High Court of Delhi in Testamentary Case and the orderpassed by the District Collector under Section 6 of the Act andthe pendency of appeals before the High Court and Board ofRevenue. Challenge to the initiation of the proceedings underthe Rajasthan Escheats Regulation Act, 1956 is already a subjectmatter of appeal before the Board of Revenue. Based on theWill, whether the Trust has a right to claim the properties of thedeceased is also a subject matter of appeal before the Delhi HighCourt. While so, exercising jurisdiction under Article 226 of theConstitution of India, the High Court ought not to have goneinto the correctness of three notices issued on 03.07.1987,22.07.1987 and 03.08.1987 which themselves culminated intovarious final orders. The impugned order takes away the veryfoundation of the order passed by the District Collector which issubject matter of the appeal pending before the Board of Revenue.There are serious disputed questions of facts especially whetherthere was contravention of Proviso to Section 4 and in such viewof the matter, the High Court ought not to have gone into thecorrectness of three communications/orders dated 03.07.1987, ABCDE

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[2019] 11 S.C.R.

A22.07.1987 and 03.08.1987. The High Court ought to havedirected the parties to work out the remedy before the competentcourt/authority. [Paras 50-52][885-G-H; 886-A-H; 887-AB]1.9. Conclusion:- (i) Since the Testamentary Case No.26 of1987 then pending before the High Court of Delhi for grant ofBprobate of the Will, has been dismissed and the testamentaryappeal is pending before the High Court, there is no rightful owneras per the Will. (ii)Having withdrawn their objections in theprobate proceedings, respondent Nos.5 to 9 are estopped frommaking any claim in the properties of the deceased till theyestablish their right in a court of law. (iii) The provisions of theCEscheats Act, 1956 was initiated only after enquiring about thelegal heirs of the deceased and before initiation of proceedingsunder the Escheats Act, the authorities satisfied itself as to“failure of heirs” of the deceased and that the properties arebona vacantia. (iv) The persons claiming as agnates have notDestablished their status in a court of law recognising them asrightful owners. (v) There was issuance of public notice and alsoto private individuals, before the State of Rajasthan took overthe estate of the deceased by escheat. The provisions of theRajasthan Escheats Regulation Act, 1956 have been substantiallycomplied with. (vi) The State of Rajasthan was right in treatingEthe property as ‘bona vacantia’and right in initiating theproceedings under the Rajasthan Escheats Regulation Act, 1956.(vii) Challenge to the initiation of the proceedings under theRajasthan Escheats Regulation Act, 1956 is already a subjectmatter of appeal before the Board of Revenue. Based on theFWill, whether the Trust has a right to claim the properties of thedeceased is also a subject matter of appeal before the Delhi HighCourt. While so, exercising jurisdiction under Article 226 of theConstitution of India, the High Court ought not to have goneinto the correctness of three notices issued on 03.07.1987,22.07.1987 and 03.08.1987 which themselves culminated intoGvarious final orders. (viii) There are serious disputed questionsof facts especially whether there was contravention of Proviso toSection 4 and in such view of the matter, the High Court oughtnot to have gone into the correctness of three communications/

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orders dated 03.07.1987, 22.07.1987 and 03.08.1987. Theimpugned order of the High Court in Writ Petition No.2713 of1987 is set aside with the following directions and observations:-

(i) The questions whether the Trust was in presentpossession of the Khetri House and other properties and that itought not to have been disturbed in terms of proviso to Section 4of the Act, have to be examined and determined by the Board ofRevenue before whom the appeal against the order of the DistrictCollector is pending;

(ii) The question whether there is contravention of provisoto Section 4 of the Act, has to be determined by the Board ofRevenue in the appeal pending before the Board of Revenue.The further question whether there was due compliance of Section6 of the Act is also to be examined by the Board of Revenue?

Whether Khetri Trust has a right to claim the properties ofthe deceased based on the Will dated 30.10.1985, is a subjectmatter of appeal before the Delhi High Court. It is made clearthat this judgment and also the conclusion of the Board ofRevenue will, however, be subject to the decision of the DelhiHigh Court in Testamentary Appeal pending before the DelhiHigh Court. [Paras 53, 54][887-C-H; 888-A-H]

Bombay Dyeing and Manufacturing Co., Ltd. v. Stateof Bombay and Others AIR 1958 SC 328 : [1958] SCR1122; State of Bihar v. Radha Krishna Singh and Others(1983) 3 SCC 118 : [1983] 2 SCR 808; Kutchi LalRameshwar Ashram Trust Evam Anna Kshetra TrustThrough Velji Devshi Patel v. Collector, Haridwar andOthers (2017) 16 SCC 418 : [2017] 9 SCR 766; Stateof Punjab v. Balwant Singh and Others 1992 Supp. (3)SCC 108 : [1991] 1 Suppl. SCR 458; Peirce Leslieand Co. Ltd. v. Violet Ouchterlong Wapshare AIR 1969SC 843 : [1969] 3 SCR 203; State of Bihar v. RadhaKrishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR808; Harbanslal Sahnia and Another v. Indian OilCorpn. Ltd. and Others (2003) 2 SCC 107 – referredto.

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APER INDIRA BANERJEE, J. (DISSENTING):

HELD: 1.1 The Escheats Act as per the preamble of thesaid Act, is an Act to regulate the making of enquiries in thematter of properties vesting in the State of Rajasthan qua ultimaheres under Article 296 of the Constitution of India or escheatsBor as bona vacantia and provides for custody and disposal thereof.A perusal of the Preamble makes it amply clear that the EscheatsAct applies only to properties vesting in the State qua ultimaheres under Article 296 of the Constitution of India as bonavacantia. The vesting of property in the State as bona vacantiaunder Section 296 for failure of heirs, is sine qua non for theCapplicability of the Escheats Act and statutorily prescribedjurisdictional requirement for Section 4 read with Section 2(4) ofthe said Act. Section 2(4) of the Escheats Act defines “propertyto which this Act applies” to mean any property vesting in theState qua ultima heres under Article 296 of the Constitution ofDIndia by escheats or as bona vacantia. [Paras 16-19] [891-G-H;892-A-B]

1.2 Section 2(4) refers to property vesting in the State andnot to property which might vest in the State at a future point oftime. Section 4(1) of the Escheats Act provides: Initiation ofEproceedings under the Escheats Act is subject to determination,at least prima facie, of the jurisdictional fact that the propertiesin question had acquired the character of “abandoned property”.The expression “escheat” or “bona vacantia” has not beendefined in the Escheats Act. However, the Escheats Act havingbeen enacted in terms of Article 296 of the Constitution, theFexpressions are to be understood in the sense in which they havebeen used in Article 296 of the Constitution. Article 296 doesnot leave any discretion for determination of what might constituteescheat or bona vacantia. Article 296 makes it clear that theprinciples applicable in this regard, prior to commencement ofGthe Constitution of India, would continue. [Paras 20-22][892-C,G-H; 893-A, E]

1.3 Law relating to bona vacantia provides for conservationof abandoned properties. The nature of the property to which theEscheats Act applies must necessarily be abandoned property inHthe sense that there should be no claimants to the property.

Property is subject to the right of escheat, where upon intestacy,there is no heir. Escheat was a right, whereby land of which therewas no longer any tenant, returned by reason of tenure, to thelord by whom, or by whose predecessors in title, the tenure wascreated. The doctrine of escheats postulates that where anindividual dies intestate and does not leave behind any heir, whois qualified to succeed to the property, the property devolves onthe Government. An abandoned property is a property for whichno claim has been made for a substantially long period. The lengthof the period for which no claim is made, should be such as toraise the presumption that the property is abandoned. [Paras 23,25, 28 and 29][893-E-F; 894-A, D-E]

1.4 If during an enquiry to ascertain whether property wasabandoned or not, any claim was made, the proceedings had tobe dropped. If no claims are made or if the State arrives at theopinion that all claims to the property are mala fide, only thenmay it apply to the Court for final determination as to the natureof the property, and thereafter initiate escheat proceedings. Inthe proceedings before the Court, the Court would necessarilyhave to arrive at a finding that the property had been abandonedand that there were no heirs who could come forward to claimthe properties. There would have to be total and absolute failureof heirs. The Single Bench of Delhi High Court had dismissedTestamentary Case No. 26 of 1987 on 3.7.2012 holding that theexecutors of the will had not been able to prove the Will dated30.10.1985 and the codicil dated 7.11.1985. The judgment andorder dated 3.7.2012 dismissing Testamentary Case no. 26/1987is of no consequence. It is well settled that if a will fails, theproperty has to be treated as intestate, which devolves upon thenatural heirs in accordance with the applicable laws of succession.The dismissal of the probate case might mean that the Trust cannotlay claim to the properties. However, that does not make theproperties escheated properties. If, upon enquiry under Section6 of the Escheats Act, the Collector finds that the property inquestion is not of the nature to which the Escheats Act applies,he is obliged to order the proceedings to be closed and theproperty to be allowed to remain with the person in whose A

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Apossession it might then be, or if possession thereof has beentaken under Section 4(c) or Section 6, the Collector is obliged torestore the property to the person from whom possession wasso taken, as mandated by Section 6 (9)a) of the Escheats Act. Itis true that the respondent trustees filed the writ petition basingBits claim on the Will. The locus standi of the writ petitioners wasnever in issue. By entertaining the writ petition the High Court,in effect, accepted that the respondent trustees of the Trust hadlocus standi to file the writ petition, and rightly so. The writ petitionfiled by the Trustees having been entertained and kept pending,Cthe High Court would not have been justified in dismissing it onthe ground that the Trust had no right to lay claim in the propertiesin question, in view of dismissal of the probate case, more so,when the appeal filed by the Trustees is still pending. The HighCourt was right in not dismissing the writ petition. The fact thatthe High Court had earlier, on the prayer of the Trustees,Dadjourned the writ petition sine die, to await the decision in theProbate application, did not debar the High Court from exercisingits writ jurisdiction after disposal of the Probate case. Even thoughthe Probate case has gone against the trustees, the appeal was

and is still pending before the Division Bench. It is true that theEKhetri Trust can claim right over the property in terms of thewill, only if it succeeds in the appeal pending in Delhi High Court.This, did not denude the trustees of the locus standi to pursuethe writ petition challenging the initiation of proceedings underthe Escheats Act. The threshold requirements laid down byFSupreme Court upon interpretation of Article 296 are theconditions precedent for initiation of proceedings under theEscheats Act. The authorities would have to be satisfied that theproperties had been abandoned and that there were no knownclaimants to the said properties The purpose of the legislation isGto conserve abandoned property and safeguard the property forthe benefit of the rightful claimant who may come later. [Paras31-33, 36-42 and 44][894-G; 895-A-B, E-H; 896-A-E]

1.5 It is not necessary for this Court to consider thecorrectness of the judgment and order of the Delhi High CourtHin the probate proceedings, since the appeal therefrom is pending. However, no adverse inference could have been drawnby reason of withdrawal of the objections of the agnates and/orcognates of the deceased. The inter se disputes, if any, betweenthe agnates and/or cognates of the deceased and the legateesunder his Will, are irrelevant for the purpose of escheatproceedings. The provisions of Escheats Act regulate theprocedure for initiation of the proceedings and making ofenquiries in respect of properties to which the Escheats Actapplies, that is, ‘lawaris’ properties vesting in the State qua ultimaheres under Article 296 of the Constitution of India by escheator bona vacantia. The Escheats Act applies to properties vestingin the State. The Escheats Act is a complete Code which coversthe 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 jurisdictionunder the Escheats Act is subjective satisfaction that the propertyvests by reason of intestacy and complete failure of heirs. Thepower under the Escheats Act can be exercised only after theTehsildar ascertains whether or not there is any person entitledto the properties of the deceased. If the property is in possessionof any person, such possession is not to be disturbed. In theinstant case, it is the case of the respondents themselves thatthe properties of the deceased were in the possession of theTrust through the Manager. The mere issuance of public noticeby the Tehsildar, calling upon persons claiming interest or rightin the properties of the deceased to appear in his office withdocuments, failing which it would be presumed that the Khetrihouse and other properties of the deceased were lawaris, doesnot absolve the Tehsildar of his obligation to enquire into whetherthere were any legal heirs. There were claimants who objectedto the grant of probate. Even though these objectors might havewithdrawn their objections to the grant of probate, whatever bethe reason, they did not resile from their claim to be heirs of thedeceased under the Hindu Succession Act. The withdrawal of anobjection to grant of probate tantamounts to withdrawal of thegrounds of objection to the Will and/or in other words, retractingthe allegations of the Will being procured, forged, fabricated, AB

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Afraudulent or created by exercise of undue influence. Thecaveators who objected to grant of probate to the Will might verywell have been advised not to proceed in view of the weaknessof their case, or may be for other reasons. That would not makeany difference to their status as agnates or cognates of theBdeceased testator. [Paras 49-57][901-A-H; 902-A-B]

1.6 The condition precedent for exercise of jurisdiction isthe existence of the jurisdictional fact of the properties in questionbeing bona vacantia, in the absence of any heirs. When existenceof jurisdiction by an authority, depends upon existence of aCparticular fact, the determination of such a fact is preliminary tothe exercise of jurisdiction. The existence of the fact has to bedecided at the threshold. Where the jurisdiction of an authoritydepends upon a preliminary finding of fact, the High Court isentitled, in an application under Article 226, to determine uponDits own independent judgment, whether or not that finding iscorrect. The District Collector clearly erred in rejecting the claimsof agnates on the ground that they had withdrawn their objectionsin the probate proceedings. Withdrawal of objections to theprobate proceedings does not estop the agnates and/or cognatesEfrom claiming the property upon failure of the probate application.[Paras 67, 68 and 70][904-B-C, F]

1.7 Under Article 226 of the Constitution of India, the HighCourt, having regard to the facts of the case, has a discretion toentertain or not to entertain a writ petition. The power of theFHigh Court to issue prerogative writs is wide. The Constitutiondoes not place any limitation on such power. However, the Courtshave, through judicial pronouncements, evolved self imposedrestrictions on the exercise of power by the writ Court. When anefficacious alternative remedy is available, the High Court doesGnot normally exercise jurisdiction. However, when a writ petitionhas been entertained and kept pending for years, it would not beappropriate to reject the writ petition only on the ground ofexistence of an alternative remedy. It would also be relevant tonote that the remedy of appeal availed by the Trustees was againstthe order of the Collector passed in 2016 almost two decadesH

after the writ petition had been filed. The superveningcircumstance of the order of the Collector and the appealtherefrom, would not justify the dismissal of the writ petition onthe ground of existence of alternative remedy. The writ petitionfiled in 1987 had been pending in the High Court for about threedecades. Once the writ petition had been entertained and keptpending, it should not be rejected on the ground of existence ofalternative remedy of appeal before the Board of Revenue. Indeciding the question of maintainability of a writ petition in viewof existence of alternative remedy, this Court cannot forget thatthe power to issue prerogative writs under Article 226 of theConstitution of India is plenary in nature. The High Court, havingregard to the facts of the case, has discretion to entertain or notto entertain a writ petition. The existence or even invocation ofalternative remedy has nothing to do with the jurisdiction of thewrit court. Even if a party has already availed of the alternativeremedy by invoking the appellate jurisdiction, as also thejurisdiction under Article 226, the party could elect to prosecuteproceedings under Article 226 for the same relief. The High Courthas rightly allowed the writ petition. This appeal is liable to bedismissed. [Paras 71-75, 78][904-G-H; 905-A-E; 906-D-E]

Bombay Dyeing Manufacturing Co. Ltd. v. State ofBombay AIR 1958 SC 328 : [1958] SCR 1122; CalcuttaDiscount Company v. ITO, Companies District I andOrs. AIR 1961 SC 372 : [1961] SCR 241 – followed.

Kutchi Lal Rameshwar Ashram Trust Evam Anna KshetraTrust v. Collector, Haridwar & Ors. (2017) 16 SCC 418: [2017] 9 SCR 766 –relied on. State of Bihar v. RadhaKrishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR808; Union of India v. Hindalco Industries (2003) 5SCC 194 : [2003] 3 SCR 377; State of Madhya Pradesh& Ors. v. Sardar D.K. Jadav AIR 1968 SC 1186 : [1968]SCR 823; Ujjambai v. State of U.P. AIR 1962 SC 1621: [1963] SCR 778; Kuntesh Gupta vs. Management ofHindu Kanya Mahavidyalaya Sitapur, U.P. & Ors.

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A(1987) 4 SCC 525 : [1988] 1 SCR 357; MunicipalCouncil, Khurai and Anr. vs. Kamal Kumar & Anr. AIR1965 SC 1321 : [1965] SCR 653; M.G. Abrol, Addl.Collector of Customs, Bombay & Anr. v. ShantilalChhotelal & Co. AIR 1966 SC 197 : [1966] SCR 284;BState of U.P and Others v. Indian Hume Pipe Co. Ltd(1977) 2 SCC 724 : [1977] 3 SCR 120; Kanak v. U.P.Avas Evam Vikas Parishad & Ors. (2003) 7 SCC 693 :[2003] 3 Suppl. SCR 232 – relied on.

State of Punjab v. Balwant Singh and Others (1992)CSupp. (3) SCC 108 : [1991] 1 Suppl. SCR 458; –referred to.

A-G of Ontario v Mercer (1883) 8 App Cas 767 –referred to.

Halsbury’s Laws of England (Vol 17) and Vol 39, FourthDEdition – referred to.

Case Law Reference

In the Judgment of R. Banumathi, J.

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STATE OF RAJASTHAN AND ORS.v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6677of 2019

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From the Judgment and Order dated 17.11.2016 of the HighCourt of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. CivilWrit Petition No. 2713 of 1987

P. S. Narsimha, ASG, S. S. Shamshery, AAG, Amit Sharma, VikasMalik, Ankit Raj, Ms. Indira Bhakar, Ms. Ruchi Kohli, Rahul G. Tanwani,Vikash Shukla, Advs. for the appellants.

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Dr. A. M. Singhvi, Paras Kuhad, Sr. Advs., Mahesh Agarwal,Manu Aggarwal, Anshuman Srivastava, Ms. Devika Mohan, E. C.Agrawala, Kumar Mihir, Anuj Prakash, Advs. for the respondents.

The Judgments and Order of the Court were delivered/passed by F

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the judgment dated 17.11.2016 passedby the High Court of Rajasthan at Jaipur Bench in DB Civil Writ PetitionNo.2713 of 1987 in and by which the High Court quashed thecommunications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987passed by the Deputy Secretary, Revenue, Govt. of Rajasthan, DistrictCollector, Jhunjhunu and Tehsildar, Khetri respectively in the matter of G

Ataking over the properties of Sh. Raja Sardar Singh by the State underthe Rajasthan Escheats Regulation Act, 1956.

3. Sh. Raja Sardar Singh expired on 28.01.1987 intestate andwithout any legal heirs. Sh. Raja Sardar Singh was a Bar at law fromEngland, a member of the Constituent Assembly, a Rajya Sabha MemberBand also Ambassador to Laos and a highly educated person. He died on28.01.1987 as a childless widower and at that time, he was a resident ofNo.5, Sardar Patel Marg, New Delhi. Sh. Raja Sardar Singh left behindhim number of valuable properties such as Khetri House Delhi, HotelKhetri Jaipur, Kothi Sukh Mahal, Kothi Jai Niwas, Kothi Amar Hall,Nizamat Building, Ajit Niwas Bagh Farm, Record Room, Havili ProhitjiCWali, Dera Brijlaji Wala, Farrash Khana Chabutra, Tin Shed Mela Gugajiand Sabka Patwar Ghar, Jhunjhunu and other movable and immovableproperties. On 16.02.1987, the Sub-Divisional Officer (SDO), Khetrisent a letter to the District Collector, Jhunjhunu stating that an informationhas been received that Sh. Raja Sardar Singh expired in Mumbai onD28.01.1987 without any legal heir and that he has executed one Will on30.10.1985. Sh. Raja Sardar Singh executed a Codicil on 07.11.1985.Based on the Will/Codicil, a trust called “Khetri Trust” was constitutedwith four Trustees.

4. On 24.02.1987, one Dwarka Prasad Parik filed applicationEbefore the Tehsildar, Jaipur stating that Sh. Raja Sardar Singh died withoutheirs and that there are several valuable properties left behind him. Thesaid Dwarka Prasad alleged that after the death of Sh. Raja SardarSingh, the Manager, Nirbhay Singh and other staff are removing thevaluable articles by loading in the trucks and therefore, immediate actionbe taken which is necessary for taking the properties into State custody.FThe said Dwarka Prasad also prayed that the properties of Sh. RajaSardar Singh be declared as the properties of the State and immediateaction be taken for its management so that the same can be saved fromdisplacement and removal.

5. Public Notice by the Tehsildar:- A probe was made uponGthe letter dated 16.02.1987 by one Mangilal who informed the DistrictCollector, Jhunjhunu about the death of Sh. Raja Sardar Singh and thathe died without any legal heir. Hence, the first condition for initiatingproceedings under the provisions of Section 4 of the Rajasthan Escheats H

Act, 1956 i.e. “Upon receipt of information as to the existence withinTehsil of any property of which the Act applies. Whether or not inthe possession of any person” has been satisfied. The SDO, Khetrihas sent a report on 16.02.1987 to the District Collector, Jhunjhunu statingthat Sh. Raja Sardar Singh expired in Mumbai on 28.01.1987 withoutany legal heir and that he has executed one Will by virtue of which atrust by name “Khetri Trust” was constituted and late Sh. Raja SardarSingh has donated his movable and immovable properties to the saidtrust and the said report of the SDO has also made it clear that Sh. RajaSardar Singh has no brother or sister nor any child and that he was awidower. On 27.02.1987, the Tehsildar, Jaipur brought out a Public Noticeinter alia stating that any person who has any interest in the propertiesof the deceased Sh. Raja Sardar Singh, should be present before him.On 28.02.1987, the District Collector sent a letter to the Tehsildar toprepare the inventories of the moveable and immoveable properties ofSh. Raja Sardar Singh for the purpose of proceeding under the RajasthanEscheats Regulation Act, 1956. On 04.03.1987, Naib Tehsildar issued anotice to Nirbhay Singh, Manager of Hotel Khetri informing him that hehas been appointed as the Inquiry Officer and directing him to produceall the documents on 05.03.1987. In response to the said Notice, NirbhaySingh, Manager on behalf of Khetri Trust filed response stating that Sh.Raja Sardar Singh, before his death, had vested his movable andimmovable properties in Khetri Trust and that the Trustees are runningthe Hotel and that the properties of Sh. Raja Sardar Singh do not fallwithin the ambit of Article 296 of the Constitution of India or under theprovisions of the Rajasthan Escheats Regulation Act, 1956 (“TheEscheats Act”).

6. The Tehsildar issued a Notice dated 07.03.1987 to NirbhaySingh calling upon him to appear personally on 12.03.1987 and produceall the documents pertaining to the said properties or else it would bepresumed that the properties which are in possession of Nirbhay Singhare completely unclaimed. The said Nirbhay Singh appeared before theTehsildar on 12.03.1987 and filed his response informing about filing ofProbate Case before the Delhi High Court and that the Trust is in actualpossession of the Khetri House and the entire movable and immovableproperties and that he is representing as Manager of the Trust. Whenthe matters stood thus pending before the Tehsildar, the Trustees filed AB

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ATestamentary Case No.26 of 1987 on 10.03.1987 before the High Courtof Delhi for probate of the Will.

7. To initiate the proceedings under the Escheats Act, the Collectoraddressed a letter dated 15.06.1987 to the Government of Rajasthan.After referring to the said letter of the Collector dated 15.06.1987, Dy.BSecretary, Government of Rajasthan passed the order dated 03.07.1987which reads as under:- “Government of Rajasthan Revenue (Group-3) Department No.10(4)/Raj/Group-3/G/87

Dated 3.7.1987

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To

District Collector, Jhunjhunu

Sub: Regarding possession and ownership of movable andimmovable properties of late Raja Bahadur Singh Khetri.

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Ref: Your letter No.1955/Nyay/87 dated 15.06.1987

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Sir,

From the captioned subject and contents of your order, it isdeemed that Shri Raja Bahadur Singh had died intestate. Theproperties of late Raja Bahadur Sardar Singh would come underthe Rajasthan Escheat Regulation Act 1956, therefore proceedingsunder the relevant provisions of Rajasthan Escheat RegulationAct 1956 be initiated in regard to the properties situated at Jhunjhunuand the concerned District Collectors be informed about theproperties lying in other Districts. In regard to the properties situatedoutside the State of Rajasthan concerned State Government beinformed.

After doing the needful, the undersigned will be informed.

R.S. MittalDeputy SecretaryGovernment of Rajasthan”

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After referring to the above proceeding of Government ofRajasthan, the District Collector vide letter dated 22.07.1987 addressingthe Tehsildar, Khetri stated that the properties of deceased Sh. RajaSardar Singh situated in the State of Rajasthan are governed by theprovisions of the Escheats Act and directed that the proceedings underthe Escheats Act be initiated in respect of properties of late Sh. RajaSardar Singh of Khetri which are situated in Khetri, District Jhunjhunu.In the said letter, the District Collector further stated that the possessionof the unclaimed properties be taken over in favour of the State and totake necessary action in this regard at the earliest. The letter of theDistrict Collector also states that the other properties owned by Sh.Raja Sardar Singh in other States or abroad be collected and action betaken accordingly. Based on the said proceedings of the District Collector,the Tehsildar has taken possession of the properties in Khetri vide SpotPossession Report (31.07.1987). In the Spot Possession Report, itwas mentioned that the seals of Khetri Trust were affixed on the gatesand keys of some of the other properties are with Khetri Trust in Delhi.The Spot Possession Report also refers to leasing of some of theproperties from the time of Sh. Raja Sardar Singh and running of aSchool in one of the properties. The immovable properties, in particular,the agricultural lands and orchards were attached by the proceedingdated 03.08.1987. The Tehsildar submitted a report to the SDO, Khetricontaining a list of properties which were taken over in custody of theState. In the said Report, it was stated that some of the properties wereunder lock put by the Trust. The Tehsildar also sent another Reportdated 24.05.1989 to the District Collector, Jhunjhunu containing a list ofproperties which were taken over in custody of the State and also thatsome of the properties were in lock and that the keys are with the Trust.

8. Other Proceedings:-Various cases have been filed in respectof movable and immovable properties of Sh. Raja Sardar Singh. Firstone was the application under Section 195 of the Indian Succession Act,1925 and the application under Section 192 for the appointment of theCurator before the District Court at Jaipur. Though the details of theseapplications 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 filedCivil Writ Petition No.2713 of 1987 challenging initiation of proceedingsunder the Escheats Act and the communications/orders dated 03.07.1987, AB

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A22.07.1987 and 03.08.1987 by the Dy. Secretary, Revenue, Govt. ofRajasthan, District Collector, Jhunjhunu and Tehsildar, Khetri respectively.On 19.11.2001, the High Court of Rajasthan adjourned the proceedingsin the said writ petition sine-die awaiting the decision of the Delhi HighCourt in Testamentary Case No.26 of 1987. The said writ petition hastaken up by the High Court after fifteen years and was allowed by theBimpugned order.

10. Testamentary Case No.26 of 1987:- Based on the Willallegedly executed by Sh. Raja Sardar Singh on 30.10.1985, ParmeshwarPrasad and the Trustees of Khetri Trust have filed the TestamentaryCase seeking for probate of the Will read with codicil dated 07.11.1985.CThe agnates of Sh. Raja Sardar Singh raised objections for grant ofprobate. During the course of the proceedings, the Delhi High Courtwas informed that the provisions of Rajasthan Escheats Regulation Acthave already been invoked and that the State has taken possession ofsome of the properties of Sh. Raja Sardar Singh. By an elaborate judgmentDdated 03.07.2012, the Delhi High Court dismissed the Testamentary CaseNo.26 of 1987 and held that it is for the State of Rajasthan to decide inaccordance with law in pursuance of the proceedings taken under theRajasthan Escheats Regulation Act, 1956. The relevant observationsmade by the Delhi High Court in the said Testamentary Case will beshortly referred to at the appropriate place. The executors of the will/Etrustees have preferred an appeal against the said judgment dated03.07.2012 before the Delhi High Court and the said appeal is pending.But no stay was granted by the Division Bench in the said appeal.

11. Application by Arjun Singh, father of Respondent No.8:Arjun Singh, father of Respondent No.8 claiming to be the agnate of theFdeceased, submitted his objections before the Tehsildar stating that thealleged Will dated 30.10.1985 is not legally valid and that the said Willhas 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 Ghas passed a detailed order on 02.02.2016 rejecting the claims of theKhetri Trust based on Will and also the claims of the agnates namelyGajendra Singh, Surender Singh, Hemender Singh, Nagender Singh andYogendra Singh. The District Collector has referred to the order of theDelhi High Court in Testamentary Case and various other proceedingsHand held that Sh. Raja Sardar Singh died intestate and issueless and therefore, Section 29 of the Hindu Succession Act read with Sub-section9(b) of Section 6 of the Rajasthan Escheats Regulation Act, 1956automatically comes into play and all properties left behind by Sh. RajaSardar Singh shall vest in the State Government of Rajasthan. The DistrictCollector directed that copy of the order be forwarded to the PublicProsecutor to be presented before the District Judge, Jaipur for obtaininga vesting order/further course of legal action as mandated under theAct.

13. Appeal before the Board of Revenue:- Against the orderpassed by the District Collector, in terms of Section 7 of the EscheatsAct, Khetri Trust has filed appeal before the Board of Revenue and theBoard of Revenue has stayed the order of the District Collector videorder dated 12.04.2016 and the said appeal is pending.

14. Impugned Order:- It is in this background, the High Courthas taken up the Civil Writ Petition No.2713 of 1987 which was pendingfor about thirty years in which the trustees have challenged thecommunications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987.Though subsequent to those three communications/orders, various ordershave come to be passed by the High Court, by the District Collector andthe appeals pending before the High Court and the Board of Revenue,the High Court proceeded to quash those communications/orders dated03.07.1987, 22.07.1987 and 03.08.1987 passed by the Dy. Secretary,Revenue, Govt. of Rajasthan, District Collector, Jhunjhunu and Tehsildar,Khetri respectively by holding that the provisions of the Escheats Acthave not been complied with and that the action by the State in takingover the possession of the properties of Sh. Raja Sardar Singh is arbitraryand unsustainable.

15. On behalf of the appellant-State of Rajasthan, learned AdditionalSolicitor General Mr. P.S. Narsimha has submitted that due to the absenceof any rightful owner, State of Rajasthan has rightly initiated theproceedings under the Rajasthan Escheats Regulation Act, 1956. It wassubmitted that the High Court has not appreciated the purport of Sections4 and 6 of the Escheats Act which vests the power with the concernedauthorities to initiate proceedings under the Act and to take possessionof the escheat properties and the High Court erred by ignoring the factthat the communications/orders dated 03.07.1987, 22.07.1987 and03.08.1987 were in terms of the provisions of the Act. The learnedAdditional Solicitor General further submitted that the Trustees having A

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Afiled the appeal against the dismissal of the Testamentary Case and theagnates having filed the appeal before the Board of Revenue challengingthe order of the Collector, the High Court should have directed the partiesto await till disposal of the appeal by the Delhi High Court and the appealby the Board of Revenue. The learned Senior counsel further submittedthat by the order dated 19.11.2001, the High Court having adjourned theBWrit Petition No.2713 of 1987 sine-die awaiting the decision of the DelhiHigh Court, ought to have awaited the decision of the Delhi High Courtin the appeal preferred against the judgment in the Testamentary Case.It was contended that after the three communication/orders which wereunder challenge in Writ Petition No.2713 of 1987, orders came to beCpassed by the courts, competent authorities and while so, the High Courterred in ignoring the subsequent judgments/orders and the impugnedorder 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 andDcognates of the deceased of which the State was well aware andtherefore, the properties of Sh. Raja Sardar Singh cannot be said to belawaris-abandoned property. Learned Senior counsel submitted that forescheating the properties, there should be total absence of any claimantfor a reasonable period of seven years and that the character of theproperty as an abandoned property should be conclusively established.EBy placing reliance upon Bombay Dyeing and Manufacturing Co.,Ltd. v. State of Bombay and Others AIR 1958 SC 328, it was contendedthat power under Article 296 of the Constitution can be exercised onlyas long as there is no claimant and the property assumes the characterof an abandoned property and that the case in hand cannot be said to beFone of absolute failure of heirs. It was submitted that the onus to establishthat the property is bona vacantia is upon the Government and theburden of proof is very high. Reliance was placed upon State of Biharv. Radha Krishna Singhand Others(1983) 3 SCC 118, Kutchi LalRameshwar Ashram Trust Evam Anna Kshetra Trust Through VeljiDevshi Patel v. Collector, Haridwarand Others(2017) 16 SCC 418.GOn behalf of the respondents, it was urged that initiation of theproceedings under the Escheats Act and taking over the possessionthereof is erroneous as there are claims by the agnates and also by theTrustees. It was submitted that assuming that the Escheats Act wasapplicable, the possession was taken over from the Trust who was in H

“present and actual possession” which is in contravention of provisoto Section 4 of the Escheats Act. It was further submitted that takingover possession of the properties by the State from Kherti Trust is illegaland that the same is in violation to proviso to Section 4(1) of the EscheatsAct.

17. I have carefully considered the submission and perused theimpugned judgment and the judgment of the High Court of Delhi inTestamentary Case No.26 of 1987 and other materials on record. Thefollowing points arise for consideration:-

(i) Whether the High Court was right in saying that the initiationof proceedings under Rajasthan Escheats Regulation Act, 1956 is notmaintainable? Whether the learned Judge was right in saying that evenassuming that the Act is applicable, taking over possession of propertiesis in violation of the provisions of the Act?

(ii) Whether the High Court was right in quashing thecommunications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987by ignoring the various subsequent orders passed by the Delhi HighCourt and by the competent authorities under the Escheats Act?

(iii) When the appeal against the probate case is pending beforethe Division Bench of the High Court of Delhi and also the appeal againstthe order passed by the District Collector is pending before the Board ofRevenue, whether the High Court was right in quashing the threecommunications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 inand by which the proceedings were initiated in terms of the RajasthanEscheats Regulation Act, 1956?

18. Contention of the respondents is that it is not a case ofbona vacantia (failure of legal heirs) and the very invocation ofproceedings under the Rajasthan Escheats Regulation Act, 1956 is notsustainable. Next limb of arguments is that even assuming that invocationof the Rajasthan Escheats Act is correct, the provisions of the Act havenot been strictly followed by the State Government and the entireproceedings are vitiated. Let me consider the merits of the first contentionthat invocation of proceedings under the Act was not warranted as itwas not a case of lawaris-abandoned property.

19. Escheat is a bona vacantia and can be exercised only incase of abandoned property:-Article 296 is the constitutional provision A

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Aenabling vesting of the property with the State Government if a persondies intestate and without any heir qualified to succeed to his or herproperty. Section 29 of the Hindu Succession Act, 1956 embodies theprinciple of escheat. Section 29 provides as follows:- “29. Failure of heirs.—If an intestate has left no heir qualifiedBto succeed to his or her property in accordance with the provisionsof this Act, such property shall devolve on the Government; andthe Government shall take the property subject to all the obligationsand liabilities to which an heir would have been subject.”

The doctrine of escheat postulates that where an individual diesCintestate and does not leave behind an heir who is qualified tosucceed to the property, the property devolves on the Government.

20. Section 29 of the Hindu Succession Act comes into operationonly on there being a failure of heirs. The word ‘failure’ used in Section29 makes it clear that there must be a total absence of any heir to theDperson dying intestate. The absence of any heir is a pre-condition forinitiation of the proceedings for escheating of the property to theGovernment.

21. It was held in State of Punjab v. Balwant SinghandOthers1992 Supp. (3) SCC 108 that the State Government does notEtake the property “as a rival or preferential heir of the deceased butas the lord paramount of the whole soil of the country”.In BalwantSingh’s case, the Supreme Court held as under:- “11. The property is escheated to the Government when anintestate has left no heir qualified to succeed to his or her property.The property shall devolve on the Government and the GovernmentFshall take the property subject to all the obligations and liabilitiesof the property. It is only in the event of the deceased leavingbehind no heir to succeed, the State steps in to take the property.

12. The State does not take the property as a rival or preferentialheir of the deceased but as the lord paramount of the whole soil of theGcountry. In Halsbury’s Laws of England, 4th ed. Vol. 17 para 1439 it isstated as follows:

“To whom land escheated.— Escheat in the case of deathintestate before 1926 was to the mesne lord if he could be foundbut, as since 1290 sub-infeudation has been forbidden, in the greatH

majority of cases there was no record of the mesne tenure, andthe escheat was to the Crown as the lord paramount of the wholesoil of the country.”

13. Section 29, in our opinion, shall not operate in favour of theState if there is any other heir of the intestate. Indeed, Section 29 itselfindicates that there must be failure of heirs. ‘Failure’ of heirs means thetotal absence of heirs to the intestate………….”.

22. Contention of the learned Senior counsel appearing forrespondents No.5 to 8 is that Section 4 applies only to the propertydescribed in Section 2(4) which refers to a property “vesting in theState”. It was further submitted that the Rajasthan Escheats Act, 1956applies only to properties vesting in the State qua ultima heres underArticle 296 by escheat or as bona vacantia and thus, before initiationof any proceeding under the Act, the property must have acquired thecharacter of an abandoned property.

23. Contention of the respondents No.5 to 8 is that the momentthere is a claim, escheating does not arise. It was submitted that escheatis a bona vacantia and can be exercised only in case of abandonedproperty and “failure of heirs” and in the present case, there is no findingas to “failure of heirs”. It was contended that for claim of escheat by theGovernment, it should be established that the property is in the nature oflawaris/abandoned property. In support of the contention, reliance isplaced upon Bombay Dyeing’scase,in which unpaid wages came to beaccumulated for about three years. Three years’ arrears were transferredto Labour Welfare Fund and remained there unclaimed for three years.Observing that merely because there was no claim for the unpaid wagesfor three years, does not mean that it became abandoned property. InBombay Dyeing, this Court held as under:- “27. It remains to deal with the contention of the respondentsthat the impugned legislation is, in substance, one in respect ofabandoned property, and that, by its very nature, it cannot be heldto violate the rights of any person either under Article 19(l)(f) orArticle 31(2). That would be the correct position if the characterof the legislation is what the respondents claim it to be, for it isonly a person who has some interest in property that can complainthat the impugned legislation invades that right whether it be underArticle 19(l)(f) or Article 31(2), and if it is abandoned property, ex A

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Ahypothesis there is no one who has any interest in it. But can theimpugned Act be held to be legislation with respect to abandonedproperty? To answer this question, it is necessary to examine thebasic principles underlying such a legislation, and ascertain whetherthose are the principles on which the Act is framed. The expression“abandoned property” or to use the more familiar term “bonaBvacantia” comprises properties of two different kinds, those whichcome in by escheat and those over which no one has a claim. InHalsbury’s Laws of England, 3rd Edn., Vol. 7, p. 536, para 1152,it is stated that “the term bona vacantia is applied to things inwhich no one can claim a property and includes the residuaryCestate of persons dying intestate”. There is, however, this distinctionbetween the two classes of property that while the State becomesthe owner of the properties of a person who dies intestate as hisultimate heir, it merely takes possession of property which isabandoned. At common law, abandoned personal property couldnot be the subject of escheat. It could only be appropriated by theDSovereign as bona vacantia. Vide Holdsworth’s History ofEnglish Law, 2nd Edn., Vol. 7, p. 495-96. In Connecticut MutualLife Insurance Company v. Moore (333 US 541, 546) theprinciple behind the law was stated to be that “the state may,more properly, be custodian and beneficiary of abandoned propertyEthan any other person”. Consistently with the principle stated above,a law relating to abandoned property enacts firstly provisions forthe State conserving and safeguarding for the benefit of the trueowners property in respect of which no claim is made for aspecified and reasonable period, and secondly, for those propertiesvesting in the State absolutely when no claim is made with referenceFthereto by the true owners within a time limited.”

24. Contending that the initiation of the proceedings under theRajasthan Escheats Act cannot stand unless the conditions for escheatare satisfied, reliance was placed upon in Peirce Leslie and Co. Ltd.(In CA No.1174 of 1965) and Miss Violet Ouchferlong WapshareGand Others (In CA No.1935 of 1966) v. Miss Violet OuchterlongWapshare and Others (In CA No.1174 of 1965) and Peirce Leslieand Co. Ltd. and Others (In CA No.1935 of 1966) AIR 1969 SC843.

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25. Observing that escheat is a doctrine which recognizes theState as a paramount sovereign in whom the property would vest upon aclear case of failure of heirs, in Kutchi Lal (2017) 16 SCC 418,thisCourt held as under:- “20. …….Section 29 embodies the principle of escheat. Thedoctrine of escheat postulates that where an individual dies intestateand does not leave behind an heir who is qualified to succeed tothe property, the property devolves on the Government. Thoughthe property devolves on the Government in such an eventuality,yet the Government takes it subject to all its obligations andliabilities. The State in other words does not take the property (atSCC p. 113, para 12) “as a rival or preferential heir of the deceasedbut as the lord paramount of the whole soil of the country”, asheld in State of Punjab v. Balwant Singh 1992 Supp (3) SCC108. This principle from Halsbury’s Laws of England 4[th]. Ed.Vol.17, Para 1439, was adopted by this Court while explaining theambit of Section 29. Section 29 comes into operation only on therebeing a failure of heirs. Failure means a total absence of any heirto the person dying intestate. When a question of escheat arises,the onus rests heavily on the person who asserts the absence ofan heir qualified to succeed to the estate of the individual who hasdied intestate to establish the case. The law does not readily acceptsuch a consequence. ….

…….

“25. The principle that the law does not readily accept a claim toescheat and that the onus rests heavily on the person who assertsthat an individual has died intestate, leaving no legal heir, qualifiedto succeed to the property, is founded on a sound rationale. Escheatis a doctrine which recognises the State as a paramount sovereignin whom property would vest only upon a clear and establishedcase of a failure of heirs. This principle is based on the norm thatin a society governed by the Rule of Law, the court will not presumethat private titles are overridden in favour of the State, in theabsence of a clear case being made out on the basis of a governingstatutory provision.…….. The Collector is an officer of the State.He can exercise only such powers as the law specifically confersupon him to enter upon private disputes. In contrast, a civil courthas the jurisdiction to adjudicate upon all matters involving civil A

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Adisputes 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 asunder:- B

“272. It is well settled that when a claim of escheat is put forwardby the Government the onus lies heavily on the appellant to prove theabsence of any heir of the respondent anywhere in the world. Normally,the court frowns on the estate being taken by escheat unless the essentialconditions for escheat are fully and completely satisfied. Further, beforeCthe plea of escheat can be entertained, there must be a public noticegiven by the Government so that if there is any claimant anywhere in thecountry or for that matter in the world, he may come forward to contestthe claim of the State. In the instant case, the States of Bihar and UttarPradesh merely satisfied themselves by appearing to oppose the claimsof the plaintiffs-respondents. Even if they succeed in showing that theDplaintiffs were not the nearest reversioners of the late Maharaja, it doesnot follow as a logical corollary that the failure of the plaintiffs’ claimwould lead to the irresistible inference that there is no other heir whocould at any time come forward to claim the properties.”

27. In the light of the above principles, let us consider whether theEState of Rajasthan was right in invocation of the Escheats Act, 1956 totake the properties of Sh. Raja Sardar Singh by escheat for want of heiror successor or as bona vacantia for want of a rightful owner. Nodoubt, the provisions of the Rajasthan Escheats Regulation Act, 1956will be applicable only when the person dies intestate and/or is notFsucceeded by any of the person under Section 8 of the Hindu SuccessionAct 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 WillGexecuted 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 thecase, the properties of Sh. Raja Sardar Singh were bona vacantia H

justifying the right of the Government to take the properties by escheatas a case of “failure of heirs”.

29. Sh. Raja Sardar Singh died on 28.01.1987. The Khetri Trustwas created on 31.01.1987. The Trust deed was executed on 14.04.1987in 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 EicherLtd. have held the post of Trustees of the Khetri Trust. In TestamentaryCase No.26 of 1987, the High Court of Delhi has pointed out that over aperiod of time, Trustees changed and as on 08.07.2003, Lord Northbookbeing son of Lady Olga Manning was made the Executor Trustee of theWill, apart from Maharaj Gaj Singh of Jodhpur. The executor of the Willviz. Parmeshwar Prasad had filed Testamentary Case No.26 of 1987 inMarch, 1987 under Section 276 of the Indian Succession Act, 1925 forgrant of probate on the basis of the Will dated 30.10.1985 read withCodicil dated 07.11.1985. So far as the Khetri Trust is concerned, it hasfiled three interlocutory applications bearing Nos.5737-5739 of 2009.Trustees of Khetri Trust were impleaded as party pursuant to the orderpassed in interlocutory application No.5737 of 2009 – application forimpleadment of the Trustees.

30. In Testamentary Case, the State of Rajasthan was alsoimpleaded as a party because of bona vacantia i.e. for want of a rightfulowner. The said interlocutory application bearing No.867 of 1995 forimpleadment filed by the State of Rajasthan was dismissed by the SingleJudge against which an appeal was preferred by the State of Rajasthanbefore the Division Bench in F.A.O. (OS) No.166 of 1996. By order ofthe Division Bench dated 08.11.1996, the State of Rajasthan was orderedto be impleaded as a party. But the State of Rajasthan was only permittedto address the arguments on the basis of the existing records.

31. Upon detailed consideration of oral and documentary evidenceadduced by the parties, by a detailed order dated 03.07.2012, the HighCourt of Delhi had dismissed the Testamentary Case No.26 of 1987 andheld that “the petitioners-executors of the Will were not able toestablish execution of the Will dated 30.10.1985 and the Codicildated 07.11.1985 in accordance with law and that the executorsfailed to dislodge the suspicious circumstances surrounding the Will.”The relevant findings of the High Court are as under:- A

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A“101.1 That the petitioners have not been able to prove the WillExhibit P-1 and the Codicil Exhibit P-3. The Will is not proved onaccount of the fact that the testimony of PW-1, P.N. Khanna andRW-8 is dramatically opposite. RW-8 has no reason to speakuntruth, which will benefit him personally in any mannerwhatsoever.B

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101.4 That the Will which is executed by the deceased/testator isincomplete and lacks material particulars. It talks aboutbequeathing immovable and movable properties to the Trustmentioned “herein below” and no details of the properties arementioned in the Will itself nor are the copies of the income-taxreturn or the wealth-tax return attached as the Will says that detailsof the properties are given therein. The petitioners haveindependently failed to prove the said documents.”

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DAgainst the said judgment dismissing Testamentary Case, theTrustees had preferred an appeal before the High Court of Delhi andthe same is pending in which, no stay was granted.

32. In the said Writ Petition being WP No.2713 of 1987, the Trustchallenged three communications/orders dated 03.07.1987, 22.07.1987Eand 03.08.1987 basing its claim upon the Will and that they had filed theprobate case before the High Court of Delhi which was dismissed. Oncethe decision of the High Court of Delhi in the probate case has goneagainst the Trust, the Trust has no semblance of right, title and interest inthe property, unless the Trust succeeds in the pending testamentary appeal,the Trust has no right to lay claim in the properties under escheat. TheFTrust having no right in the property, appears to have now taken up thecause of agnates, which the High Court, in my considered view, did notkeep in view.

33. In the Writ Petition No.2713 of 1987, the Trustees of KhetriTrust having challenged three communication/orders initiating theGproceedings under the Escheats Act, 1956 represented to the High Courtthat they had filed a probate case before the High Court of Delhi andrequested the matter be adjourned. Upon consideration of therepresentation made by the Trustees of Khetri Trust that a probate caseis pending, the High Court of Rajasthan by its order dated 19.11.2001adjourned the Writ Petition sine-die awaiting the decision of the DelhiH

High Court. The Trust thus, chose to seek an adjournment in the WritPetition challenging the initiation of the proceedings under the Act till thefinal decision of the probate case. Once the decision in the probate casehad gone against them, unless they succeed in the appeal, Khetri Trusthas no semblance of right to lay a claim over the properties.

34. The agnate such as Gaj Singh Alsisar-respondent No.8 andother agnates viz. Surender Singh, Hemender Singh, Nagender Singhand Yogendra Singh have filed their objections resisting grant of probateof the Will dated 30.10.1985. Subsequently, all of them have withdrawntheir objections. Regarding the conduct of the agnates withdrawing theirobjections, observing that the reasons for such withdrawal is inexplicable,in the concluding para, the Delhi High Court in its judgment dated23.11.2012 held as under:- “……101.7 There were many objectors who had raised objectionto the grant of probate/the letter of administration but actuallyeach one of them withdrew. The reasons for withdrawal by themare inexplicable. No credible reason for the same has been given.This makes the Court to draw the inference that some forceswere behind the scene which made them withdraw their objectionsleaving the field open for the petitioners but for the opposition ofthe State of Rajasthan.”

As far as the objection of Gaj Singh Alsisar-respondent No.8, inthe probate proceedings, he subsequently withdrew his claim/objectionon 10.02.2009 suo moto.

35. So far as other objectors are concerned, in probate case theHigh Court of Delhi observed as under:-

“16. After filing of the probate petition, a number of objectionswere filed in response to the citation published in the “Statesman”on 17.04.1987, which had a wide circulation including in the Stateof Rajasthan, where most of the properties were situated. Theseobjections were filed by the persons, namely, Rajender Singh, whodied after filing of the objection and was represented by his legalheirs, Hemender Singh, Nagender Singh and Shobha Kanwar. Theother objections were filed by Arjun Singh, Surender Singh,Narender Singh, Laxman Singh, Dwarka Prasad Parekh andRaghuvir Singh. Out of these objectors, except Raghuvir Singh,the rest of the objectors withdrew their objections by filing A

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Aapplications before the court on 10.02.2009. So far as RaghuvirSingh is concerned, he was stated to be incarcerated in connectionwith some criminal case registered against him in Jaipur CentralJail, who initially persisted with his objections and made allegationsthat the Khetri Trust and other entities had fraudulently fabricateddocuments and sold various properties of Raja’s Estate, a numberBof times, however, before the start of arguments on the merits ofthe petition, Raghuvir Singh also withdrew his objections.”

As observed by the District Collector, there were number ofobjectors to the grant of probate in favour of Khetri Trust and all of themhave gradually withdrawn their objections and the conduct of the agnatesCraises suspicion on their bonafide. When the agnates/other personsclaiming right in the estate of Sh. Raja Sardar Singh have withdrawntheir objections, naturally the inference is that they have accepted theclaim/right of Khetri Trust, which claims through the Will. An inferencehas to be drawn against the persons that they have no right of claim inDthe properties of Sh. Raja Sardar Singh. The so called agnates or cognatescannot adopt double stand i.e. one claiming right in themselves and anotherallowing Khetri Trust to claim through the Will. It is also to be pointedout that the respondents No.8 and 9 and respondent No.6-Late RajenderSingh have not produced any document showing their status as agnatesnor initiated any proceeding for declaration of their status.E

36. Contention of the respondents is that the condition precedentfor initiation of proceedings under the Escheats Act is “failure of heirs”and there is no finding by the authorities as to “failure of heirs” andtherefore, the proceedings under the Escheats Act could not have beeninitiated. It was submitted that there was no enquiry conducted to satisfyFthe authorities as to “failure of heirs” to succeed to the properties andthere was no finding as to “failure of heirs” and in the absence of findingas to “failure of heirs”, the proceedings initiated under the Escheats Actwas wholly jurisdiction and hence, the High Court rightly quashed theorders dated 03.07.1987, 22.07.1987 and 03.08.1987.

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37. There is no merit in the contention of the respondents thatthere was no enquiry and satisfaction of the authorities as to “failure ofheirs” before initiating proceedings under the Escheats Act. As pointedout earlier, the Sub-Divisional Officer, Khetri has sent a report dated16.02.1987 to the District Collector, Jhunjhunu that Sh. Raja Sardar SinghHexpired in Mumbai on 28.01.1987 without any legal heir and that he has

v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]

executed one Will by virtue of which Khetri trust was constituted. TheSDO’s report also states about the absence of brother or sister or anychild 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 11.2.1987of Rajya Sabha, New Delhi, Raja Bahadur Shri Sardar Singh Khetrihas expired in Mumbai on 28.1.1987 without any legal heir. Hehas executed only one will by virtue of this a Khetri Trust wasconstituted, the trust having four trustees and late Sardar Singh Jihas donated his movable and immoveable property to the Trust.

Shri Sardar Singh has no brother or sister nor any child. He hasdivorced his wife. His father Amar Singh was adopted from Alsisaras his grandfather Ajit Singh had only one son Jai Singh, who diedin minor age. Grandfather Shri Sardar Singh had two daughtersone of them was married at Shahpura and other was married atPratapgarh and both were expired, but there is a possibility oftheir children be alive.

Sd/-Mangilal

38. The State Government through Tehsildar, Jaipur issued a noticedated 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 withoutlegal heirs. As seen from the communication of Naib Tehsildar dated04.03.1987 and 07.03.1987 addressed to Sh. Nirbhay Singh, an enquirywas conducted by Nair Tehsildar as to lawaris property of Sh. RajaSardar Singh. The letter dated 03.07.1987 from the Deputy Secretary toDistrict Collector, Jhunjhunu was in reference to the letter dated15.06.1987 sent by the District Collector, Jhunjhunu to the DeputySecretary by which the District Collector, Jhunjhunu had apprised aboutthe factual position of the investigation conducted by him in complianceof the procedure laid down under Section 4 of the Escheats Act. Thereis no merit in the contention of the respondents that the initiation of the A

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Aproceedings under the Escheats Act was done without following theprocedure 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 theletter of the District Collector, Jhunjhunu dated 15.06.1987 addressed tothe Government of Rajasthan shows that in compliance of the provisionsof the Escheats Act, an enquiry was conducted and the authorities satisfiedBthemselves as to “failure of heirs” before initiating action under EscheatsAct. The materials on record show that the proceedings under theprovisions of Escheats Act has been initiated only after making properenquiry about possible legal heirs of Sh. Raja Sardar Singh and on findingabout the absence of legal heirs, the authorities satisfied themselves thatCthe properties are bona vacantia. In my view, due procedure wasfollowed by the concerned officials as per the Escheats Act followingthe provisions of Section 4 of the Escheats Act and only after ascertainingthat there was “failure of heirs”, the inventories of the properties wereprepared and possession was taken over on all the vacant propertiesand mangers were appointed for the requisite purposes.D

39. Deceased died way back in the year 1987. Till this date, theagnates have not instituted any suit or proceedings to establish theirstatus nor obtained any declaration from the competent authorities. Inthe absence of any document declaring status of respondents No.4 to 8as cognates/agnates of Sh. Raja Sardar Singh, State of Rajasthan cannotEbe faulted for initiating action under the Escheats Act, 1956 treating theproperties of Sh. Raja Sardar Singh as lawaris for want of heir orsuccessor or as bona vacantia. Moreover, it is not the case of therespondents No.4 to 8 that they represent all the agnates. As discussedearlier, no claimant came forward before the Tehsildar; only NirbhayFSingh who claimed as Manager of the Khetri Trust appeared before theTehsildar. Considering the facts and circumstances of the case, initiationof proceedings under the Escheats Act cannot be said to be erroneouswarranting interference.

40. In Re: Compliance of the provisions of the Rajasthan-GEscheats Regulation Act, 1956:

The provisions of the Rajasthan Escheats Act, 1956 regulate theprocedure for initiation of proceedings and making of enquiries in thematter of lawaris properties vesting in the State of Rajasthan qua ultimaheres under Article 296 of the Constitution of India by escheat or asHbona vacantia. The Act applies to the properties vesting in the State.

STATE OF RAJASTHAN AND ORS.

v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]

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 Actapplies” means any property vesting in the State qua ultimaheres under Article 296 of the Constitution of India by escheatsor as bona vacantia.

Section 3 of the 1956 Act shows that the general superintendenceof the properties to which this Act applies vests in the Collectorand the Board can also give directions to the Collector. Thesedirections can be given for carrying out the provisions of the Act.

41. The Rajasthan Escheats Regulation Act is a complete Codein itself. The preamble sets out the scope and ambit of the statute. TheAct being a comprehensive legislation sets out the entire scheme relatingto the constitutional power under Article 296 and provides for:- a) themaking of enquiries; b) for custody and disposal; and c) properties vestingin the State under Article 296 of the Constitution. The scope of the Actis to:- a) determine the rightful owner and to restore the property in his/her favour; b) secure and safeguard the property pending under suchenquiry; c) adjudicate upon the contesting claims prima facie, at thesame time enabling the properties to avail remedies of Civil courts; andfinally d) pass orders of vesting after giving opportunities to everybodyand after holding a detailed enquiry.

42. When we consider the scheme of the Act, in particular, Section4, it provides that when the Tehsildar receives information as to theexistence within Tehsil of any property to which this Act applies, whetheror not in the possession of any person, the Tehsildar shall –

a. ascertain whether or not there is any person entitled to suchproperty;

b. prepare an inventory thereof showing the prescribed particulars; c. take over possession of it in the prescribed manner; -and-

d. make a report of the Collector.

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AAs per the proviso to Section 4 of the Act, if the property is in the‘present possession of any person’, such possession shall not bedisturbed.

43. As pointed out earlier, as against the order passed by theCollector (dated 02.02.2016), the Trust has preferred the appeal beforeBthe Board of Revenue and the same is pending, all the questions includingthe compliance of the provisions of the Escheat Act, 1956 are raised inthe said appeal. We would not have ventured to go into the merits of thecontention as to the compliance or otherwise of the provisions of theEscheats Act, 1956; since the High Court has quashed thecommunications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987Cpassed by the Deputy Secretary, Revenue, District Collector and theTahsildar respectively holding that the provisions of the Escheats Act,1956 has not been complied with, we are called upon to examine themerits of the contentions raised and examine whether there was propercompliance of the provisions of the Escheats Act, 1956 for initiation ofDthe proceedings of the Act. If we do not examine the merits of thecontention raised in this appeal, the findings of the High Court wouldstand and the appropriate forum will not be in a position to consider thematter on merits. I have to therefore necessarily proceed to examinethe merits of the contention advanced by the parties as to the complianceor otherwise of the provisions of Escheats Act, 1956.E

44. As discussed infra, the provisions of Section 4 of the RajasthanEscheats Regulation Act have been substantially complied with. As pointedout earlier in para (4), a public notice was issued inviting the interestedpersons to present themselves before the Tehsildar and produce materialsto prove their right. The Naib Tehsildar thereafter issued notice datedF07.03.1987 to Nirbhay Singh directing him to produce all documentswith proof. From the materials, it is seen that the inquiry which wasconducted 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 wasissued on 27.02.1987 by the Tehsildar, Jaipur calling upon persons whoGclaim interest or right in the properties of Sh. Raja Sardar Singh to presenthimself before his office on 04.03.1987 with entire documents orotherwise, it would be presumed that the Khetri House and otherproperties of Sh. Raja Sardar Singh are lawaris and the same shall betaken to the custody of the State. Further, it can be seen from the letterHdated 04.03.1987 that the Naib Tehsildar, Jaipur was appointed as Inquiry

Officer of all properties of Sh. Raja Sardar Singh situated at Jaipur. TheTehsildar issued a notice to Nirbhay Singh/Manager of Hotel KhetriHouse on 07.03.1987 calling upon him to personally appear and producethe entire records of the properties under his occupation. He was alsoinformed that if he does not appear and produce the documents, it wouldbe presumed that the properties are lawaris. After referring to the letterof the Collector dated 03.07.1987, the Dy. Secretary to the StateGovernment directed appellant No.3-Collector, Jhunjhunu to initiateproceedings under the Act as it was deemed that the deceased diedintestate. The letter dated 03.07.1987 from Dy. Secretary to DistrictCollector, Jhunjhunu to initiate proceedings under the Act was in referenceto the letter dated 15.06.1987 sent by the District Collector, Jhunjhunu tothe Dy. Secretary by which the District Collector had apprised about thefactual position of the investigation conducted by it in view of theprocedure laid down under Section 4 of the Act. By letter dated22.07.1987, the Tehsildar Khetri was directed to initiate proceedingsunder the Rajasthan Escheats Act with respect to properties situated inKhetri and also to collect details of properties situated outside the Stateof Rajasthan. By attachment order dated 03.08.1987, immovableproperties i.e. agricultural lands and orchards in village Hada Fatehpurawas taken over. By cumulative reading of the contents of above variousproceedings, it is clear that in accordance with provisions of the Act, theconcerned officials first made inquiry to ascertain whether there wasany legal heir of Sh. Raja Sardar Singh; issued notices and then preparedthe inventories and after the spot inspection, attached the properties andtaken over the possession of the vacant properties and submitted reportto the Collector. The provisions of the Escheats Act, 1956, in our view,has been substantially complied with.

46. The learned Senior counsel for the respondents submitted thatthe Khetri Trust was in possession of the property of Sh. Raja SardarSingh and the possession was taken over from the Trust by the Tehsildarin purported proceedings under Section 4 of the 1956 Act. It was furthercontended that even assuming that the Act was applicable, the possessionwas taken over from the Trust thereby contravening the proviso to Section4(1) of the Act which provides that “if such property is in the presentpossession of any person, such possession shall not bedisturbed”. Contending that the Trust was in possession of the propertyof Sh. Raja Sardar Singh and that the State Government through Tehsildar AB

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Ahad taken over the possession, the learned Senior counsel for therespondents inter-alia made the following submissions:-

• Immediately after the demise of Sh. Raja Sardar Singh on28.01.1987, vide letter dated 14.02.1987, Parmeshwar Prasad,one of the Trustees addressed letter to SDO, Khetri informingBabout the death of Sh. Raja Sardar Singhand his bequest infavour of the Trust.

• Nirbhay Singh vide letter dated 05.03.1987 informed the NaibTehsildar, Jaipur that the possession of the properties of Sh.Raja Sardar Singh lied with the Trust and that Nirbhay Singh isCthe Manager of the Trust and was in actual possession ofmovable and immovable properties in Khetri House where theHotel was being run.

• The Spot Possession Report dated 31.07.1987 indicates thatthe Trust is in “present possession” of the Khetri House i.e.Dthere were five seals of Khetri Trust on the ground floor; threeseals of Khetri Trust on the upper floor; seals of Khetri Trustwere found affixed on both the gates and supervisors havebeen deputed for supervision thereof. It also states that keys ofthe kothis are with the office of Khetri Trust in Delhi.

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The learned Senior counsel submitted that in view of the abovefacts, it is beyond any doubt that the properties of the deceased were“in present possession of the Trust and that such possession wasnot only disturbed but destroyed by the State taking over thepossession of the properties”.

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47. Of course, as per the Spot Inspection Report dated 31.07.1987,the property – Khetri House was found with locks with seal of KhetriTrust was affixed. As per the Spot Inspection Report nobody was foundin physical possession of the property at the time of inspection. Uponconsideration of these submissions inter-alia, the questions arising forGdetermination are (i)Whether Khetri Trust was in “present possession”of the property at the time of inspection and whether mere affixing ofseal could lead to all inference that the Khetri Trust was in presentpossession?; (ii) Whether summoning of Nirbhay Singh was in hiscapacity as Manager of the Hotel Khetri or agent or representative ofKhetri Trust?; and (iii) Whether the order passed by the District CollectorH

under Section 6 is in due compliance of the provisions of the Act ofRajasthan Escheats Act, 1956?

48. As against the order passed by the District Collector on02.02.2016, the appeal is preferred before the Board of Revenue andthe same is pending while upholding the invocation of the provisions ofRajasthan Escheats Regulation Act, 1956 in my considered view, theabove contentions ought to be raised before the Board of Revenue andthe Board of Revenue shall consider the same on its own merits.

49. Challenging the initiation of proceedings under Escheats Act1956, the Trustees have filed Writ Petition No.2713 of 1987 way back inthe year 1987 and the same was pending for about three decades. In2001, the writ petitioners themselves sought for an adjournment on theground of pendency of probate case before the Delhi High Court andthe High Court also adjourned the writ petition sine-die. Thereafter, thewrit petition remained pending for quite some time. As discussed earlier,three communications/orders dated 03.07.1987, 22.07.1987 and03.08.1987 and subsequently, number of other orders came to be passedfor taking possession of the properties of Sh. Raja Sardar Singh. TheDelhi High Court dismissed the probate petition filed by the Khetri Trustby the judgment dated 03.07.2012 and the appeal filed by the Trust againstthe said judgment has been admitted by the Division Bench of the DelhiHigh Court and the same is pending. Under Section 6 of the EscheatsAct, 1956, the Collector passed the order on 02.02.2016 dismissing theobjections of the Trust on the basis of the order passed by the DelhiHigh Court in probate proceedings. The claim of agnates was also rejectedby the District Collector on the ground that they had withdrawn theirobjections in the probate proceedings and are thus estopped from makingany further claim.

50. Challenging the order passed by the District Collector, appealhas been preferred before the Board of Revenue and the same is pending.The Board of Revenue stayed the order of the District Collector by theorder dated 12.04.2016. It was thereafter, the High Court had taken upthe Writ Petition No.2713 of 1987 and passed the impugned order quashingthe three communication/orders. When the appeals were pending beforethe Delhi High Court and before the Board of Revenue involving disputedquestions, the High Court, in my view, ought to have directed the partiesto avail efficacious alternative remedy. The High Court, in my view,ignoring the subsequent events that the respondents-agnates have AB

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Awithdrawn their objections in the probate petition and dismissal of theprobate petition and the appeals pending before the Delhi High Courtand appeal pending before the Board of Revenue erred in quashing thethree communications/orders and directing the State to hand over thepossession of the properties to the respondents.

B51. Under Article 226 of the Constitution of India, the High Courthaving regard to the facts of the case has a discretion to entertain or notto entertain a writ petition. But the High Court has imposed upon itselfcertain restrictions; one of which is an effective and efficacious remedyavailable. When efficacious alternative remedy is available, the HighCourt would not normally exercise the jurisdiction. However, alternativeCremedy will not be a bar at least in three instances:-

(i) where writ petition is filed for enforcement of any of thefundamental rights;

(ii) where there is a violation of the fundamental right or principlesDof natural justice; and

(iii) where the orders or proceedings are wholly without jurisdictionor the vires of an Act is challenged; [vide Harbanslal Sahniaand Another v. Indian Oil Corpn. Ltd. and Others(2003)2 SCC 107].

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E52. Notwithstanding the availability of alternative remedy, havingregard to the facts of the case, the High Court has a discretion to entertainor not to entertain a writ petition. But in the present case, whileconsidering correctness of the communications/orders issued way backin 1987, the High Court should have taken into consideration thesubsequent events viz., the judgment passed by the High Court of DelhiFin Testamentary Case and the order passed by the District Collectorunder Section 6 of the Act and the pendency of appeals before the HighCourt and Board of Revenue. Challenge to the initiation of the proceedingsunder the Rajasthan Escheats Regulation Act, 1956 is already a subjectmatter of appeal before the Board of Revenue. Based on the Will, whetherGthe Trust has a right to claim the properties of Sh. Raja Sardar Singh isalso a subject matter of appeal before the Delhi High Court. While so,exercising jurisdiction under Article 226 of the Constitution of India, theHigh Court ought not to have gone into the correctness of three noticesissued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselvesculminated into various final orders. The impugned order takes awayH

the very foundation of the order passed by the District Collector whichis subject matter of the appeal pending before the Board of Revenue.There are serious disputed questions of facts especially whether therewas 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 threecommunications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987.The High Court, in my considered view, ought to have directed the partiesto 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 pendingbefore the High Court of Delhi for grant of probate of theWill, has been dismissed and the testamentary appeal ispending before the High Court, there is no rightful owneras per the Will.

(ii) Having withdrawn their objections in the probateproceedings, respondent Nos.5 to 9 are estopped frommaking any claim in the properties of Sh. Raja Sardar Singhtill they establish their right in a court of law.

(iii) The provisions of the Escheats Act, 1956 was initiated onlyafter enquiring about the legal heirs of Sh. Raja Sardar Singhand 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 bonavacantia.

(iv) The persons claiming as agnates have not established theirstatus in a court of law recognising them as rightful owners.

(v) There was issuance of public notice and also to privateindividuals, before the State of Rajasthan took over theestate of Sh. Raja Sardar Singh by escheat. The provisionsof the Rajasthan Escheats Regulation Act, 1956 have beensubstantially complied with.

(vi) The State of Rajasthan was right in treating the property as‘bona vacantia’and right in initiating the proceedings underthe Rajasthan Escheats Regulation Act, 1956.

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A(vii)Challenge to the initiation of the proceedings under theRajasthan Escheats Regulation Act, 1956 is already asubject matter of appeal before the Board of Revenue.Based on the Will, whether the Trust has a right to claimthe properties of Sh. Raja Sardar Singh is also a subjectmatter of appeal before the Delhi High Court. While so,Bexercising jurisdiction under Article 226 of the Constitutionof India, the High Court ought not to have gone into thecorrectness of three notices issued on 03.07.1987,22.07.1987 and 03.08.1987 which themselves culminatedinto various final orders.C(viii) There are serious disputed questions of facts especiallywhether there was contravention of Proviso to Section 4and in such view of the matter, the High Court ought not tohave gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987.D54. In the result, the impugned order of the High Court in WritPetition No.2713 of 1987 is set aside and this appeal is allowed with thefollowing directions and observations:-

(i) The questions whether the Trust was in presentpossession of the Khetri House and other properties andEthat it ought not to have been disturbed in terms of provisoto Section 4 of the Act, have to be examined and determinedby the Board of Revenue before whom the appeal againstthe order of the District Collector is pending;

(ii) The question whether there is contravention of proviso toFSection 4 of the Act, has to be determined by the Board ofRevenue in the appeal pending before the Board ofRevenue. The further question whether there was duecompliance of Section 6 of the Act is also to be examinedby the Board of Revenue?GWhether 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 matterof appeal before the Delhi High Court. It is made clear that this judgmentand also the conclusion of the Board of Revenue will, however, be subjectto the decision of the Delhi High Court in Testamentary Appeal pendingbefore the Delhi High Court. Parties shall bear their respective cost.H

STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOKAND ORS.

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INDIRA BANERJEE, J.

I have gone through the Judgment of my esteemed sister, but Ihave not been able to persuade myself to agree that this appeal be allowed.

2. This appeal is against a Judgment and Order dated 17.11.2016passed 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 bythe respondents, who claim to be the trustees under a Will executed byLate Raja Bahadur Sardar Singh of Khetri, (hereinafter referred to as‘Raja Bahadur’) and directing that the properties left behind by RajaBahadur be made over to the writ petitioners.

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3. The facts giving rise to the writ petition have been narrated inthe judgment of my esteemed sister. Raja Bahadur, a childless widowerdied on 28.1.1987 leaving inter alia the following properties:- 890SUPREME COURT REPORTS

A13Tin shed Mela GugajiJhunjhunuMeharaJatuwas14Sabka Patwar GharJhunjhunuPapurna”

4. On 30.10.1985, that is about one year and three months beforeBhis death, Raja Bahadur had executed a Will, bequeathing his propertiesto a Trust to be known as Khetri Trust, of which persons named in theWill were to be Trustees. On 31.1.1987, that is about three days afterthe death of Raja Bahadur, the Khetri Trust was created.

5. On 14.2.1987, Mr. Parmeshwar Prasad, the original writCpetitioner and one of the trustees named in the Will informed theCompetent Authority, being the Sub Divisional Officer (SDO), khetrithat Raja Bahadur had expired on 28.1.1987. An attested copy of theWill executed by Raja Bahadur was forwarded to the SDO.

6. By a letter dated 16.2.1987, the SDO Khetri informed theDDistrict Collector, Jhunjhunu of the death of Raja Bahadur and the Willsaid to have been executed by him. In the aforesaid letter the SDOindicated the possibility of existence of cognates of the deceased.

7. It is the case of the appellants that, on 24.2.1987, one DwarkaPrasad Parik filed an application before the Tehsildar, stating that RajaBahadur had died without heirs, leaving several valuable properties, andEpraying that the properties of Raja Bahadur be declared as properties ofthe State.

8. On 27.2.1987, the Tehsildar, Jaipur published a Public Notice,calling upon persons interested in the properties of Late Raja Bahadurto appear before him. On 4.3.1987, the Tehsildar issued notice to NirbhayFSingh of his appointment as Inquiry Officer to enquire about the movableand immovable properties of Late Raja Bahadur Sardar Singh anddirected the said Nirbhay Singh to produce all documents before himwith proof on 12.3.1987, failing which it would be assumed that all theproperties in possession of Nirbhay Singh were unclaimed.G

9. In the meanwhile, on 10.3.1987 the trustees filed a petitionbeing Probate Petition No.26 of 1987 before the Delhi High Court forprobate of the Will said to have been executed by Late Raja Bahadur.

10. One Arjun Singh, father of the respondent No.8, claiming tobe an agnate of the deceased, and others filed objections opposing theH

grant of probate of the Will executed by Raja Bahadur.

11. In the meanwhile, by a letter dated 12.3.1987, Nirbhay Singhresponded to the said notice dated 4.3.1987, reiterating that pursuant tothe Will executed by Raja Bahadur, the trustees of Khetri Trust were inreal and lawful possession of the entire properties of Late Raja BahadurSingh, and that they had initiated proceedings for probate beingTestamentary Case No.26 of 1987 in the Delhi High Court.

12. By a communication dated 3.7.1987 addressed to DistrictCollector, Jhunjhunu the Deputy Secretary to the Government ofRajasthan informed the District Collector that Raja Bahadur was to bedeemed to have died intestate and the Hindu Succession Act would beapplicable 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 theRajasthan Escheats Regulation Act, 1956 (hereinafter referred to as“The Escheats Act”) in respect of the properties left by Late RajaBahadur.

14. On 31.7.1987, the Tehsildar took over possession of theproperties of Raja Bahadur and prepared a Spot Possession Report. On3.8.1987, possession was taken of the properties specified in a compliancereport dated 3.8.1987 submitted by the Tehsildar to the Collector. On29.9.1987, the Tehsildar, Jaipur took possession of Khetri House Hotelfrom Nirbhay Singh.

15. The respondents and/or their predecessor-in-interest filed theabovementioned writ petition challenging the initiation of proceedingsunder the Escheats Act and the consequential action of taking overpossession of the properties of Raja Bahadur under the provisions of thesaid Act, which has been allowed by the judgment and order impugnedin this appeal, and in my view, rightly.

16. The Escheats Act as per the preamble of the said Act, is anAct to regulate the making of enquiries in the matter of properties vestingin the State of Rajasthan qua ultima heres under Article 296 of theConstitution of India or escheats or as bona vacantia and provides forcustody and disposal thereof.

17. A perusal of the Preamble makes it amply clear that theEscheats Act applies only to properties vesting in the State qua ultima A

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Aheres under Article 296 of the Constitution of India as bona vacantia.

18. The vesting of property in the State as bona vacantia underSection 296 for failure of heirs, is sine qua non for the applicability ofthe Escheats Act and statutorily prescribed jurisdictional requirementfor Section 4 read with Section 2(4) of the said Act.

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19. Section 2(4) of the Escheats Act defines “property to whichthis Act applies” to mean any property vesting in the State qua ultimaheres under Article 296 of the Constitution of India by escheats or asbona vacantia.

20. As rightly argued by Dr. Singhvi, appearing on behalf of theCrespondents, Section 2(4) refers to property vesting in the State and notto 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 informationas to the existence within Tehsil of any property to whichthis Act applies,whether or not in the possession of anyperson, the Tehsildar shall- D

(a) Ascertain whether or not there is any person entitledto such property.

E(b) Prepare an inventory thereof showing theprescribed particular.

(c) Take over possession of it in the prescribed manner,and (d) Make a report to the collector:

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Provided that if such property is in the presentpossession of any person, such possession shall notbe disturbed.

In my considered opinion, initiation of proceedings under theGEscheats Act is subject to determination, at least prima facie, of thejurisdictional fact that the properties in question had acquired the characterof “abandoned property”.

21. The expression “escheat” or “bona vacantia” has not beendefined in the Escheats Act. However, the Escheats Act having beenenacted in terms of Article 296 of the Constitution, the expressions areH

to be understood in the sense in which they have been used in Article296 of the Constitution, set out hereinbelow for convenience:- “296. Property accruing by escheat or lapse or as bonavacantia Subject as hereinafter provided any property in theterritory of India which, if this Constitution had not comeinto operation, would have accrued to His Majesty or, as thecase may be, to the Ruler of an Indian State by escheat orlapse, 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 anyproperty which at the date when it would have so accrued toHis Majesty or to the Ruler of an Indian State was in thepossession or under the control of the Government of Indiaor the Government of a State shall, according as the purposesfor which it was then used or held were purposes of the Unionor a State, vest in the Union or in that State Explanation Inthe article, the expressions Ruler and Indian State have thesame meanings as in Article 363”

22. Article 296 does not leave any discretion for determination ofwhat might constitute escheat or bona vacantia. Article 296 makes itclear that the principles applicable in this regard, prior to commencementof the Constitution of India, would continue.

23. Law relating to bona vacantia provides for conservation ofabandoned properties. The nature of the property to which the EscheatsAct applies must necessarily be abandoned property in the sense thatthere should be no claimants to the property, as argued by Dr. Singhvi.

24. The question is, what exactly is “abandoned Property” or whatproperty is “bona vacantia”. In Bombay Dyeing Manufacturing Co.Ltd. vs. State of Bombay[1], a Constitution Bench of this Court whiledeciding the challenge to the constitutional validity of the Bombay LabourWelfare 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 byescheat and those over which no one has a claim. The relevant paragraphof the judgment is extracted in the judgment of my esteemed sister.

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A25. Property is subject to the right of escheat, where upon intestacy,there is no heir. Escheat was a right, whereby land of which there wasno 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 Mercer[2],Lord Selborne LCheld “EscheatBis a term of art and derived from the French word escheat that iscadere excidere or accidere and signifyeth property when byaccident the lands fall to the lord of whom they are holden”. Escheatwas an incident of feudal tenure and was based on the want of tenant toperform the feudal services.

C27. As per Paragraph 1437 of the fourth edition of Halsbury’sLaws of England, (Vol 17) escheat propter defectum tenentis occurredin the case of intestate death, where the last owner of the land diedintestate, without any heir. In this event, a person became possessed oflands as purchaser, and died intestate without issue; the Lord or theCrown, as the case might be, re-entered in right of his or its formerDownership, the estate which was granted, having come to an end.

28. As very rightly observed and held by my esteemed sister, thedoctrine of escheats postulates that where an individual dies intestateand does not leave behind any heir, who is qualified to succeed to theproperty, the property devolves on the Government.

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29. An abandoned property is a property for which no claim hasbeen made for a substantially long period. The length of the period forwhich no claim is made, should be such as to raise the presumption thatthe property is abandoned.

30. In Bombay Dyeing Manufacturing Co. Ltd. (supra), thisFCourt found that initiation of escheat proceedings on the ground ofabsence of claim for a period of three years was unconstitutional.

31. Dr. Singhvi submitted, and in my view, rightly, that if during anenquiry to ascertain whether property was abandoned or not, any claimwas made, the proceedings had to be dropped.G

32. If no claims are made or if the State arrives at the opinion thatall claims to the property are mala fide, only then may it apply to the H2 A-G of Ontario v Mercer (1883) 8 App Cas 767 at 772

Court for final determination as to the nature of the property, andthereafter initiate escheat proceedings.

33. In the proceedings before the Court, the Court wouldnecessarily have to arrive at a finding that the property had beenabandoned and that there were no heirs who could come forward toclaim the properties. To put it differently, there would have to be totaland 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 Governmentdoes 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 Stateas a paramount sovereign, in a clear case of failure of heirs, and thatwhen a claim of escheat is put forward by the Government, the onus liesheavily on the Government to prove the absence of any heir anywherein the world, finds support from the judgments of this Court in KutchiLal Rameshwar Ashram Trust Evam Anna Kshetra Trust vs.Collector, Haridwar & Ors.[3] and State of Bihar vs. Radha KrishnaSingh 7 Ors.[4] referred to by my esteemed sister.

36. As noted by my esteemed sister, the Single Bench of DelhiHigh Court had dismissed Testamentary Case No. 26 of 1987 on 3.7.2012holding that the executors of the will had not been able to prove the Willdated 30.10.1985 and the codicil dated 7.11.1985.

37. The judgment and order dated 3.7.2012 dismissingTestamentary Case no. 26/1987 is of no consequence. It is well settledthat if a will fails, the property has to be treated as intestate, whichdevolves upon the natural heirs in accordance with the applicable lawsof succession. As observed by my esteemed sister, the dismissal of theprobate 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, theCollector finds that the property in question is not of the nature to whichthe Escheats Act applies, he is obliged to order the proceedings to beclosed and the property to be allowed to remain with the person in whosepossession it might then be, or if possession thereof has been takenunder Section 4(c) or Section 6, the Collector is obliged to restore the 3 (2017) 16 SCC 418

4 (1983) 3 SCC 118

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Aproperty to the person from whom possession was so taken, as mandatedby Section 6 (9)a) of the Escheats Act.

39. It is true that the respondent trustees filed the writ petitionbasing its claim on the Will. The locus standi of the writ petitioners wasnever in issue. By entertaining the writ petition the High Court, in effect,Baccepted that the respondent trustees of the Trust had locus standi tofile the writ petition, and rightly so.

40. The writ petition filed by the Trustees having been entertainedand kept pending, the High Court would not have been justified indismissing it on the ground that the Trust had no right to lay claim in theCproperties in question, in view of dismissal of the probate case, more so,when the appeal filed by the Trustees is still pending. The High Courtwas right in not dismissing the writ petition.

41. The fact that the High Court had earlier, on the prayer of theTrustees, adjourned the writ petition sine die, to await the decision in theDProbate application, did not debar the High Court from exercising itswrit jurisdiction after disposal of the Probate case. At the cost of repetition,it is reiterated that even though the Probate case has gone against thetrustees, 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 propertyEin terms of the will executed by Raja Bahadur, only if it succeeds in theappeal pending in Delhi High Court. This in my view, did not denude thetrustees of the locus standi to pursue the writ petition challenging theinitiation 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 theGovernment. The burden of proof is heavy. This proposition also findssupport from Kutchi Lal Rameshwar Ashram Trust (supra).

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44. The threshold requirements laid down by this Court uponinterpretation of Article 296 are the conditions precedent for initiation ofGproceedings under the Escheats Act. The authorities would have to besatisfied that the properties had been abandoned and that there were noknown claimants to the said properties. The purpose of the legislation isto conserve abandoned property and safeguard the property for thebenefit of the rightful claimant who may come later.

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STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOKAND ORS. [INDIRA BANERJEE, J.]

45. Mr. Paras Kuhad, learned senior counsel appearing on behalfof some of the respondents adopted the arguments advanced by Dr.Singhvi and further submitted, and rightly, that before the Collector canapply to the Court for vesting or custody of the property in terms of theSection 6(7) and 6(9) of the Escheats Act, the following tests should besatisfied.

“(i) The case should not involve complicated questions of law asto title or status which has not previously been adjudicated by aCivil Court of competent jurisdiction.

(ii) There should not be claimants to the property.

(iii) The property should be of the nature to which the EscheatsAct applies i.e., bona vacantia and/or in other words abandonedproperty.

(iv) The last owner should have died intestate without leavingany known heirs. In other words there has to be a complete andabsolute failure of heirs and thus any possibility of claim beingmade to the property by any person.

(v) A claim made pursuant to a proclamation issued under theEscheats Act should prima facie be not maintainable. If a claimis prima facie maintainable even though the claim may not havebeen established, no application for vesting or custody can bemade.

(vi) Even if no claim is filed, the Collector should be satisfied thatthere is no person entitled to claim the property. In other words,there should be no person entitled to claim the property irrespectiveof whether there was any claim to the property and irrespectiveof whether the claim, if any, could be established.

(vii) The Collector is satisfied that it is a bona fide case of propertyvesting in the State as ultima heres under Section 296 of theConstitution of India by escheat or as bona vacantia. The vestingof the property in the State as ultima heirs by escheat or as bonavacantia must positively be established and not likely presumed.”

46. Shri Raja Bahadur Singh being a Hindu by religion was governedby the Hindu Succession Act, 1956. The relevant provisions of the HinduSuccession Act are as follows:- A

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“8. General rules of succession in the case of males.¯Theproperty of a male Hindu dying intestate shall devolveaccording to the provisions of this Chapter:¯

(a) firstly, upon the heirs, being the relatives specified inclass 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;

(c) thirdly, if there is no heir of any of the two classes, thenupon 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.—Amongthe heirs specified in the Schedule, those in class I shall takesimultaneously and to the exclusion of all other heirs; thosein the first entry in class II shall be preferred to those in thesecond entry; those in the second entry shall be preferred tothose in the third entry; and so on in succession.

10. Distribution of property among heirs in class I of theSchedule.—The property of an intestate shall be dividedamong the heirs in class I of the Schedule in accordance with the following rules:—

Rule1.—The intestate’s widow, or if there aremorewidows than one, all the widows together, shall takeone share.

Rule2.—The surviving sons and daughters and themother of the intestate shall each take one share.

Rule 3.—The heirs in the branch of each pre-deceasedson or each pre-deceased daughter of the intestate shalltake between them one share.

Rule 4.—The distribution of the share referred to in Rule3—

(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 equalportions; and the branch of his pre-deceased sons getsthe same portion;

(ii) among the heirs in the branch of the pre-deceaseddaughter shall be so made that the surviving sons anddaughters get equal portions.

11. Distribution of property among heirs in class II of theSchedule.—The property of an intestate shall be dividedbetween the heirs specified in any one entry in class II of theSchedule so that they, share equally

12. Order of succession among agnates and cognates.—Theorder of succession among agnates or cognates, as the casemay be, shall be determined in accordance with the rules ofpreference laid down hereunder:—

Rule 1.—Of two heirs, the one who has fewer or no degreesof ascent is preferred.

Rule2.—Where the number of degrees of ascent is the sameor none, that heir is preferred who has fewer or no degreesof descent.

Rule3.—Where neither heir is entitled to be preferred to theother under Rule 1or Rule 2 they take simultaneously.

13. Computation of degrees.—(1) For the purposes ofdetermining the order of succession among agnates orcognates, relationship shall be reckoned from the intestate tothe heir in terms of degrees of ascent or degrees of descentor both, as the case may be.

(2) Degrees of ascent and degrees of descent shall be computedinclusive of the intestate.

(3) Every generation constitutes a degree either ascendingor descending.

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29. Failure of heirs. - If an intestate has left no heir qualifiedto succeed to his or her property in accordance with theprovisions of this Act, such property shall devolve on thegovernment; and the government shall take the propertysubject to all the obligations and liabilities to which an heirwould have been subject.

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30. Testamentary succession.—1*** Any Hindu may disposeof by will or other testamentary disposition any property, whichis capable of being so 2[disposed of by him or by her], inaccordance with the provisions of the Indian Succession Act,1925 (39 of 1925),or any other law for the time being in forceand applicable to Hindus.

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Explanation.—The interest of a male Hindu in a Mitaksharacoparcenary property or the interest of a member of a tarwad,tavazhi, illom, kutumbaor kavaruin the property of the tarwad,tavazhi, illom, kutumbaor kavarushall, notwithstanding any-thing contained in this Act or in any other law for the timebeing in force, be deemed to be property capable of beingdisposed of by him or by her within the meaning of this.”

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47. The Expression “agnate” and “cognate” are defined in Section3(a) and 3(c) respectively of the Hindu Succession Act to mean:- E

“3(a)”agnate” - one person is said to be an “agnate”of another if the two are related by blood or adoptionwholly through males:

3(b) …..

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3(c) “cognate” - one person is said to be a cognateof another if the two are related by blood or adoptionbut not wholly through males.”

48. Under Section 29 of the Hindu Succession Act, the propertyGof an interstate devolves on the Government, if the intestate has left noheir qualified to succeed to his or her property, in accordance with theprovisions of the Hindu Succession Act. The Government is to take theproperty subject to all obligations and liabilities to which an heir wouldhave been subject.

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49. It is not necessary for this Court to consider the correctnessof the judgment and order of the Delhi High Court in the probateproceedings, since the appeal therefrom is pending. However, no adverseinference could have been drawn by reason of withdrawal of theobjections of the agnates and/or cognates of Raja Bahadur.

50. The inter se disputes, if any, between the agnates and/orcognates of Raja Bahadur and the legatees under his Will, are irrelevantfor the purpose of escheat proceedings.

51. The provisions of Escheats Act regulate the procedure forinitiation of the proceedings and making of enquiries in respect ofproperties to which the Escheats Act applies, that is, ‘lawaris’ propertiesvesting in the State qua ultima heres under Article 296 of the Constitutionof India by escheat or bona vacantia, as rightly concluded by my esteemedsister.

52. The Escheats Act applies to properties vesting in the State.The Escheats Act is a complete Code which covers the power underArticle 296 and provides for making of enquiries; custody and disposaland for vesting of properties in the State. However, the conditionprecedent for exercise of jurisdiction under the Escheats Act is subjectivesatisfaction that the property vests by reason of intestacy and completefailure of heirs.

53. The power under the Escheats Act can be exercised onlyafter the Tehsildar ascertains whether or not there is any person entitledto the properties of the deceased. If the property is in possession of anyperson, such possession is not to be disturbed. In the instant case, it isthe case of the respondents themselves that the properties of Raja Bahadurwere in the possession of the Trust through the Manager, Nirbhay Singh.

54. The mere issuance of public notice by the Tehsildar, callingupon persons claiming interest or right in the properties of Raja Bahadurto appear in his office with documents, failing which it would be presumedthat the Khetri house and other properties of Raja Bahadur were lawaris,does not absolve the Tehsildar of his obligation to enquire into whetherthere were any legal heirs.

55. There were claimants who objected to the grant of probate.Even though these objectors might have withdrawn their objections tothe grant of probate, whatever be the reason, they did not resile from A

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Atheir claim to be heirs of Raja Bahadur under the Hindu Succession Act.

56. The withdrawal of an objection to grant of probate tantamountsto withdrawal of the grounds of objection to the Will and/or in otherwords, retracting the allegations of the Will being procured, forged,fabricated, fraudulent or created by exercise of undue influence.

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57. The caveators who objected to grant of probate to the Willmight very well have been advised not to proceed in view of the weaknessof their case, or may be for other reasons That would not make anydifference to their status as agnates or cognates of the deceased testator.

58. In fact, even the ultimate failure of the probate proceedings orCin other words, dismissal of the appeal would not attract the provisionsof the Escheats Act, unless there was a clear finding that Raja Bahadurleft no agnates or cognates and there was complete failure of heirs.Once there were some heirs in the picture, it was not for the appellantsto protect the properties of Raja Bahadur. It was for the rightful heirs toDrecover the properties from those in possession thereof.

59. The mere failure of an application for probate would not attractescheats. When a Will is not probated, the testamentary property is tobe deemed to be intestate property and would devolve upon successor,if any, as per the general laws of succession. Unless there were completeEfailure of heirs, the Escheats Act would not be attracted.60. It may be useful to refer to paragraph 597 of Volume 39 of thefourth edition of Halsbury’s Laws of England extracted hereinbelowfor convenience:- “597. Formerly, when a tenancy in fee simple came to an end forFany reason, the land went back to the lord of whom the tenant,and he was said to take by escheat. The commonest instanceswere escheat for want of heirs (propter defectum sanguinis), whichoccurred when a tenant in fee simple died intestate without leavingan heir-at-law, and escheat on conviction of felony (propterdelictum tenentis), but both these have been abolished. EscheatGin other cases is still possible but rare. An example is where theland is disclaimed by the trustee in bankruptcy of the former owner,and another possible case is on the dissolution of a corporationnot governed by the Companies Act 1948.”

61. The condition precedent for initiation of proceedings under H

the Escheat Act is failure of heirs. In the absence of any finding offailure of heirs, proceedings could not have been initiated. Under Section4, it is the duty of the Tehsildar to see that there is no one entitled to theproperty. The proviso clearly prohibits the taking over of property ordisturbance of possession thereof, if the property is in the possession ofany one.

62. Apart from the fact that the proceedings could not be initiatedin the absence of satisfaction of complete failure of heirs to succeed tothe properties, Section 6 (7) mandates that if any enquiry involves acomplicated question of law as to title or status, which has not beenpreviously 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 asuccession certificate in respect of such property or to institute a suit fordeclaration of title thereto, within such period not exceeding six monthsin the aggregate, as the Collector might fix.

63. Furthermore, if the Collector finds that the property is not ofthe nature to which the Act applies, the Collector is obliged to close theproceedings and allow the property to remain with the person in whosepossession it might be or if possession thereof has been taken underSection 4 or Section 6, to be restored to the person from whom possessionwas so taken.

64. Significantly, in this case, the proceedings under the EscheatsAct were initiated and the orders/communications impugned in the writpetition were issued, without any finding of complete failure of heirs. Inthe absence of formation of the opinion of failure of heirs, the proceedingsinitiated under the Escheats Act were wholly without jurisdiction.

65. In Calcutta Discount Company vs. ITO, Companies DistrictI and Ors., reported in AIR 1961 SC 372, a Constitution Bench of thisCourt held that when exercise of jurisdiction depends upon formation ofany particular opinion, then formation of that opinion is necessary beforeacquiring jurisdiction. In such a case, it is open to an aggrieved person tochallenge formation of the opinion in a writ proceeding on such groundsas 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 Acton the ground of incorrect valuation without recording a satisfaction that A

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Athe price was not the sale consideration or that the buyer was a relatedperson, was held to be without jurisdiction as there was no valid foundationfor ignoring the declared price.

67. It is reiterated at the cost of repition that the condition precedentfor exercise of jurisdiction is the existence of the jurisdictional fact ofBthe properties in question being bona vacantia, in the absence of anyheirs. When existence of jurisdiction by an authority, depends uponexistence of a particular fact, the determination of such a fact ispreliminary to the exercise of jurisdiction. The existence of the fact hasto be decided at the threshold.

C68. Where the jurisdiction of an authority depends upon apreliminary finding of fact, the High Court is entitled, in an applicationunder Article 226, to determine upon its own independent judgment,whether or not that finding is correct, as held by this Court in State ofMadhya Pradesh & Ors. vs. Sardar D.K. Jadav reported in AIR1968 SC 1186 and Ujjambai vs. State of U.P. reported in AIR 1962DSC 1621.

69. I am unable to persuade myself to agree with my esteemedsister that the issuance of notices informing those interested in theproperties left by late Raja Bahadur, that if they did not appear andproduce documents, it would be presumed that the properties wereElawaris, satisfies the conditions precedent for initiation of proceedingsunder the Escheats Act.

70. The District Collector clearly erred in rejecting the claims ofagnates on the ground that they had withdrawn their objections in theprobate proceedings. Withdrawal of objections to the probate proceedingsFdoes not estop the agnates and/or cognates from claiming the propertyupon failure of the probate application.

71. As observed by my esteemed sister, under Article 226 of theConstitution of India, the High Court, having regard to the facts of thecase, has a discretion to entertain or not to entertain a writ petition.

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72. The power of the High Court to issue prerogative writs iswide. The Constitution does not place any limitation on such power.However, the Courts have, through judicial pronouncements, evolvedself imposed restrictions on the exercise of power by the writ Court.When an efficacious alternative remedy is available, the High Court H

does not normally exercise jurisdiction. However, when a writ petitionhas been entertained and kept pending for years, it would not beappropriate to reject the writ petition only on the ground of existence ofan alternative remedy.

73. It would also be relevant to note that the remedy of appealavailed by the Trustees was against the order of the Collector passed in2016 almost two decades after the writ petition had been filed. Thesupervening circumstance of the order of the Collector and the appealtherefrom, would not in my view, justify the dismissal of the writ petitionon the ground of existence of alternative remedy.

74. As noted by my esteemed sister, the writ petition filed in 1987had been pending in the High Court for about three decades. Once thewrit petition had been entertained and kept pending, it should not berejected on the ground of existence of alternative remedy of appealbefore the Board of Revenue.

75. In deciding the question of maintainability of a writ petition inview of existence of alternative remedy, this Court cannot forget thatthe power to issue prerogative writs under Article 226 of the Constitutionof India is plenary in nature. The High Court, having regard to the factsof the case, has discretion to entertain or not to entertain a writ petition.The existence or even invocation of alternative remedy has nothing todo with the jurisdiction of the writ court. Even if a party has alreadyavailed of the alternative remedy by invoking the appellate jurisdiction,as also the jurisdiction under Article 226, the party could elect to prosecuteproceedings under Article 226 for the same relief.

76. There are certain well-recognised exceptions where the barof alternative remedy does not apply. Where the authority has actedwithout jurisdiction, the High Court should not refuse to exercise itsjurisdiction under Article 226 of the Constitution on the ground of analternative 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 anauthority to take the impugned action, as in this case, is always a goodground to entertain a writ petition.

77. Moreover, as held by this Court in Municipal Council, Khuraiand Anr. vs. Kamal Kumar & Anr. reported in AIR 1965 SC 1321, A

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AM.G. Abrol, Addl. Collector of Customs, Bombay & Anr. vs. ShantilalChhotelal & Co. reported in AIR 1966 SC 197 and in State of U.P andOthers 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 writpetition when an alternative remedy is available to a party. It is always amatter of discretion with the Court and if the discretion has been exercisedBby the High Court not unreasonably or perversely, it is settled practice ofthis Court not to interfere with the exercise of discretion by the HighCourt. The High Court in the present case has entertained the writ petitionand 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 underCArticle 136 of the Constitution to quash the order of the High Court,merely on the ground of existence of an alternative remedy. As held bythis Court, inter alia, in Kanak vs. U.P. Avas Evam Vikas Parishad& Ors. reported in (2003) 7 SCC 693 (701), once a writ petition isentertained, and the matter is argued at length on merit, it would be too Dlate in the day to contend that the writ petitioner should avail the alternativeremedy.

78. The High Court has, in my view, rightly allowed the writ petition.This appeal is, in my view, liable to be dismissed.

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In view of difference of opinions and the distinguishing judgments(Hon’ble R. Banumathi, J. allowed the appeal and Hon’ble IndiraBanerjee, J. dismissed the appeal), the matter be placed before Hon’blethe Chief Justice of India for referring the matter to the Larger Bench.

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Divya Pandey

Referred to larger bench.

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