2019 Supreme(SC) 974

SUPREME COURT OF INDIA
R. BANUMATHI, INDIRA BANERJEE, JJ.
State of Rajasthan and Ors. – Appellants
Versus
Lord Northbrook and Ors. – Respondents
CIVIL APPEAL NO. 6677 OF 2019 (Arising out of SLP(C) No.36771 of 2016)
Decided On : 28-08-2019

Headnote:

Per R. Bhanumathi, J.

(a) Constitution of India - Article 296 r/w section 29, Hindu Succession Act, 1956 - Escheat or bona vacantia - Total absence of any heir or the property being abandoned - Pre-condition for initiation of the proceedings for escheating of the property to the Government. (Para 20)

(b) Indian Succession Act - Section 276 r/w section 4, Rajasthan Escheats Regulation Act, 1956 - Trust filing case for probate - Agnates or cognates filing objections - Gradually withdrawing - High Court dismissing probate case filed by Trust - Appeal pending, no stay - Trust having no semblance of right, title and interest in the property unless it succeeds in the appeal - It cannot lay claim in the properties under escheat. (Para 32, 33, 34)

(c) Rajasthan Escheats Regulation Act, 1956 - Section 4 r/w Article 296, Constitution of India - Maintainability - Instantly authorities making enquiries by issuing notices and communications - Trust laying claim - Agnates filing objections - Gradually withdrawing - Probate denied to Trust - Owner dying intestate in 1987 - Agnates or cognates not instituted any suit or proceedings to establish their status - With agnates or cognates withdrawing their objections and probate case of Trust having been dismissed, the property becoming bona vacantia - No error in proceeding under Escheat Act. (Para 38, 39, 44)

(d) Rajasthan Escheats Regulation Act, 1956 - Section 4 and 6 - Question whether Trust was in possession of the property at time of inspection - Whether Nirbhay Singh was summoned in his capacity as Manager of the Hotel Khetri or agent or representative of Khetri Trust - Whether the order passed by the District Collector under Section 6 is in due compliance of the provisions of the Act - These contentions should be raised in the appeal pending before Board of Revenue. (Para 47, 48)

(e) Constitution of India - Article 226 - Appeal against dismissal of probate case pending before Delhi High Court - Appeal against Collector’s orders pending before Board of Revenue - Rajasthan High Court quashing communications by Collector - Not proper - High Court ought to consider pendency of the two appeals and refrain from quashing the communications. (Para 52)

Per Indira Banerjee, J.

(f) Section 2(4) - Refers to property vesting in the State - Not the property which might vest at a future point of time. (Para 20)

(g) Section 4 r/w Article 296, Constitution of India - Property being abandoned sine qua non for initiating proceedings under the Act - ‘Abandoned property’ or bona vacantia - Individual dying intestate and not leaving behind any heir qualified to succeed to property - Also the property for which no claim has been made for a substantially long period - Devolves on the Government. (Para 24, 28, 29)

(h) Section 4 - If no claims are made or if the State arrives at the opinion that all claims to the property are mala fide - Escheat proceedings can only then be initiated - State Government does not take the property as a rival or preferential heir of the deceased, but as the lord paramount, when there is no heir qualified to succeed. (Para 32, 34)

(i) Section 4 - Onus to establish that a property is bona vacantia is on Government - And the burden of proof is heavy. (Para 43)

(j) Section 6(7) and 6(9) r/w Section 8 and 29, Hindu Succession Act, 1956 - Appeal against dismissal of probate case pending - Claim of Trustees not finally dismissed - The act would not apply to the property - Article 296, Constitution of India (Para 50, 51)

(k) Section 4 - Manager of the Trust in possession of the property - Objectors to grant of probate to Trustees, though withdrawing, not resiling from their claim to be heirs of the deceased - Mere failure of probate case would not attract the provisions of the Escheats Act, unless there was a clear finding that the deceased left no agnates or cognates and there was complete failure of heirs. (Para 54, 55, 59)

(l) Section 4 - Unless the Government forms and opinion that there is a failure of heirs, applyin g the Act would be without jurisdiction. (Para 64)

Administration of justice - Succession - Withdrawal of objections to grant of probate - Does not estop the agnates and/or cognates from claiming the property upon failure of the probate application. (Para 70)

(m) Constitution of India - Article 226 - A writ petition is entertained and kept pending for a long time on ground of - Cannot be dismissed existence of alternative remedy of appeal. (Para 74, 77)

Facts of the case:

Sh. Raja Sardar Singh was a Bar at law from England, a member of the Constituent Assembly, a Rajya Sabha Member and also Ambassador to Laos and a highly educated person. He died on 28.01.1987 as a childless widower and at that time, he was a resident of No.5, Sardar Patel Marg, New Delhi. Sh. Raja Sardar Singh left behind him number of valuable properties. Sh. Raja Sardar Singh had executed one Will on 30.10.1985. He executed a Codicil on 07.11.1985. Based on the Will/Codicil, a trust called “Khetri Trust” was constituted with four Trustees.

On 24.02.1987, one Dwarka Prasad Parik filed application before the Tehsildar, Jaipur alleging that after the death of Sh. Raja Sardar Singh, the Manager, Nirbhay Singh and other staff are removing the valuable articles by loading in the trucks and therefore, immediate action be taken which is necessary for taking the properties into State custody. The said Dwarka Prasad also prayed that the properties of Sh. Raja Sardar Singh be declared as the properties of the State and immediate action be taken for its management so that the same can be saved from displacement and removal.

The Trustees filed Testamentary Case No.26 of 1987 on 10.03.1987 before the High Court of Delhi for probate of the Will.

Parmeshwar Prasad filed Civil Writ Petition No.2713 of 1987 challenging initiation of proceedings under the Escheats Act and the communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 by the Dy. Secretary, Revenue, District Collector, and Tehsildar respectively. On 19.11.2001, the High Court of Rajasthan adjourned the proceedings in the said writ petition sine-die awaiting the decision of the Delhi High Court in Testamentary Case No.26 of 1987. The said writ petition has taken up by the High Court after fifteen years and was allowed by the impugned order.

Finding of the Court:

The two hon’ble Judges differed in their opinions.

Result: Matter referred to larger Bench.