Judgement

In the first appeal in this case, the question then raised, the right of the Appellant to seise an estate [@ page M.I.A. 530] in his collectorate as an escheat to the Government for want of an heir to the person last possessed, their Lordships decided in favour of the general right of the Crown to take by escheat the estate in question, subject, or not subject, to a trust, and remitted the case to the Sudder Dewanny Adawlut for further hearing, with the expression of their opinion, that there was not sufficient evidence in the case to admit of a satisfactory decision on the subject of the trust and the claims under it.

The suit accordingly was again brought before the Sudder Dewanny Adawlut on the 20th of October, 1800, and, on the 22nd of the same month, that Court delivered judgment, whereby, after stating that the Court had ascertained from the parties that they were not in a position to come to an arrangement in accordance with their Lordships, suggestions, but wished the suit to proceed, and that the Court " had not found it necessary towards their pronouncing upon the merits of the suit to call for the additional evidence which their Lordships had indicated as apparently requisite, " the judgment of the Court proceeded in these terms "The arguments brought before the Court have led them to consider, primarily, what may be the rights of the Crown by the law of escheat, especially as connected with the powers of a female, under Hindoo law, to alienate property. In view of the circumstances under which the right of the Crown to an escheat, in reference to the particular estate in litigation, has been declared by their Lordships of the Privy Council, any clause of the Hindoo law, " actual or suppossed," notwithstanding, the Court have felt it incumbent on them to judge of the law of escheat in the most general aspect; and, towards forming an [@ page M.I.A. 531] opinion on the subject, they have admitted the arguments of Counsel, based upon the bearings of the law as recognized in the Courts in England, besides taking into consideration the state of the law as existing in this part of India, which it is their more peculiar province to deal with. It has been pressed upon the Court, that by English law, title by escheat does not confer the powers belonging to title by heirship. The Lord paramount, it is declared, always takes to his own disadvantage, Burgess v. Wheate (1 Sir W. Black 123). There a trustee held property, and those for whose benefit it had been intrusted to him had lapsed, the Crown was declared not entitled to deprive the trustee of the possession as having escheated to it, 2 Spence, Equi. Juris. p. 206 ; Taylor v. Hay garth (14 Sim. 16, 17). It has been also ruled, in the case of property held under mortgage, the heirs of the mortgagor being extinct, that the Crown cannot exercise the equity of redemption, Burgess v. Wheate; Jeremy, Equi. Juris, p. 182; 2 Spence, Equi. Juris. 237 ; Taylor v. Haygarth ; Prescott v. Tyler (1 Jurist, 470). Also, that the Crown cannot enforce forfeiture upon breach of condition, Burgess v. Wheate. The Hindoo law is here analogous. Had the last undisputed owner of the Zemindary in issue been a male, without male progeny, he could have

8 M.I.A. 529 ( 1859- 1861)

C ollector of Masulipatam V. C avaly Vencata Narrainapah

77

alienated the estate at any moment before his death, whether with or without consideration, and no collateral could have questioned the act. By consequence, the Crown could not do so. The last owner having been a female, the power to alienate in her was placed by the law under certain special restrictions—that is, though destitute of direct lineage, she could not alienate to the prejudice of her remotest heirs, [@ page M.I.A. 532] save under their consent, or under strict necessity. In the present suit, the Crown claim to possess the restrictive power belonging to an heir of the female, and have laid this suit to defeat her act. The Court have consulted thei