# STATE OF RAJASTHAN AND ORS v. LORD NORTHBOOK AND ORS

- **Citation:** [2019] 11 S.C.R. 844
- **Court:** Supreme Court of India
- **Decided:** 2019-08-28
- **Case number:** Civil Appeal No. 6677 of 2019
- **Bench:** R. Banumathi, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-rajasthan-and-ors-v-lord-northbook-and-ors-33114
- **Pages:** 63

## Headnote

Rajasthan Escheats Regulation Act, 1956- s.2(4), Proviso to
s.4, ss. 6, 7- Testator died in 1987 without any legal heirs, leaving
valuable properties situated in Khetri, Jhunjhunu, Rajasthan -
Before his death, he executed Will bequeathing his properties to a
Trust - Trustees filed probate petition before the Delhi High Court
for probate of the Will - Objections filed by the agnates of the
deceased testator - Probate petition dismissed - Appeal pending
before the Division Bench - Direction by the Collector, Jhunjhunu
to initiate proceedings under the Ecsheats Act in respect of the
properties left - Tehsildar took over possession of the properties -
Writ petition filed by respondents challenging three communications/
orders initiating the proceedings under the Act - Further, the
Collector rejected the claims of the Trust based on Will and also the
claim of the agnates - Appeal of the Trust before the Board of
Revenue - 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 of
escheat postulates that where an individual dies intestate and does
not leave behind an heir qualified to succeed to the property, the
property devolves on the Government - Absence of any heir is precondition for initiation of the proceedings for escheating of the
property 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 claims
through the Will - Inference has to be drawn that they have no right
of claim in the properties- Further, when the appeals were pending
before the Delhi High Court and the Board of Revenue involving
disputed questions, the High Court ought to have directed the parties
to avail efficacious alternative remedy - High Court erred in
quashing the three communications and directing the State to hand
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over the possession of the properties to the respondents - Further,
due procedure was followed as per the Escheats Act - State of
Rajasthan right in treating the property as 'bona vacantia' and
initiating proceedings under the Escheats Act - Per Banerjee, J.
(Dissenting) : Doctrine of escheats postulates that where an
individual dies intestate and does not leave behind any heir qualified
to succeed to the property, the property devolves on the Government
- An abandoned property is a property for which no claim has
been made for a substantially long period, such as to raise the
presumption that the property is abandoned - In the present case,
there were claimants who objected to the grant of probate - Even
though they withdrew the objections, that would not make any
difference to their status as agates/cognates of the deceased testator
- Further, judgment dismissing the probate petition is of no
consequence - If a will fails, the property has to be treated as
intestate, devolving upon the natural heirs in accordance with the
applicable laws of succession - Dismissal of the probate case might
mean that the Trust cannot lay claim to the properties but, that does
not make the properties escheated properties- Unless there were
complete failure of heirs, the Escheats would not be attracted -
Further, the writ petition filed in 1987 had been pending in the
High Court for about three decades - Once the writ petition had
been entertained and kept pending, it should not be rejected on the
ground of existence of alternative remedy of appeal before the Board
of Revenue - Communications impugned were issued without any
finding 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 alternative
remedy - Entertainment of writ petition - Testator died in 1987
without any lega

## Text

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STATE OF RAJASTHAN AND ORS.
v.
LORD NORTHBOOK AND ORS.
(Civil Appeal No . 6677 of 2019)
AUGUST 28, 2019
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Rajasthan Escheats Regulation Act, 1956- s.2(4), Proviso to
s.4, ss. 6, 7- Testator died in 1987 without any legal heirs, leaving
valuable properties situated in Khetri, Jhunjhunu, Rajasthan -
Before his death, he executed Will bequeathing his properties to a
Trust - Trustees filed probate petition before the Delhi High Court
for probate of the Will - Objections filed by the agnates of the
deceased testator - Probate petition dismissed - Appeal pending
before the Division Bench - Direction by the Collector, Jhunjhunu
to initiate proceedings under the Ecsheats Act in respect of the
properties left - Tehsildar took over possession of the properties -
Writ petition filed by respondents challenging three communications/
orders initiating the proceedings under the Act - Further, the
Collector rejected the claims of the Trust based on Will and also the
claim of the agnates - Appeal of the Trust before the Board of
Revenue - 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 of
escheat postulates that where an individual dies intestate and does
not leave behind an heir qualified to succeed to the property, the
property devolves on the Government - Absence of any heir is precondition for initiation of the proceedings for escheating of the
property 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 claims
through the Will - Inference has to be drawn that they have no right
of claim in the properties- Further, when the appeals were pending
before the Delhi High Court and the Board of Revenue involving
disputed questions, the High Court ought to have directed the parties
to avail efficacious alternative remedy - High Court erred in
quashing the three communications and directing the State to hand
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over the possession of the properties to the respondents - Further,
due procedure was followed as per the Escheats Act - State of
Rajasthan right in treating the property as 'bona vacantia' and
initiating proceedings under the Escheats Act - Per Banerjee, J.
(Dissenting) : Doctrine of escheats postulates that where an
individual dies intestate and does not leave behind any heir qualified
to succeed to the property, the property devolves on the Government
- An abandoned property is a property for which no claim has
been made for a substantially long period, such as to raise the
presumption that the property is abandoned - In the present case,
there were claimants who objected to the grant of probate - Even
though they withdrew the objections, that would not make any
difference to their status as agates/cognates of the deceased testator
- Further, judgment dismissing the probate petition is of no
consequence - If a will fails, the property has to be treated as
intestate, devolving upon the natural heirs in accordance with the
applicable laws of succession - Dismissal of the probate case might
mean that the Trust cannot lay claim to the properties but, that does
not make the properties escheated properties- Unless there were
complete failure of heirs, the Escheats would not be attracted -
Further, the writ petition filed in 1987 had been pending in the
High Court for about three decades - Once the writ petition had
been entertained and kept pending, it should not be rejected on the
ground of existence of alternative remedy of appeal before the Board
of Revenue - Communications impugned were issued without any
finding 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 alternative
remedy - Entertainment of writ petition - Testator died in 1987
without any legal heirs, leaving valuable properties situated in
Khetri, Jhunjhunu, Rajasthan - Before his death, he executed Will,
bequeathing his properties to a Trust - Probate petition filed by the
Trustees before the Delhi High Court - Dismissed - Appeal pending
before the Division Bench - Writ petition filed by the respondents
challenging the taking over possession of the properties by the
Tehsildar - Further, the Collector rejected the claims of the Trust
based on Will and also of the agnates - Appeal pending before the
Board of Revenue - Thereafter, writ petition allowed - Held: Per
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Banumathi, J. When the appeals were pending before the Delhi High
Court and before the Board of Revenue involving disputed
questions, the High Court ought to have directed the parties to avail
efficacious alternative remedy - Per Banerjee, J. (Dissenting) High
Court, having regard to the facts of the case, has discretion to
entertain or not to entertain a writ petition- Remedy of appeal
availed by the Trustees was against the order of the Collector passed
in 2016 almost two decades after the writ petition was filed in 1987
- Supervening circumstance of the order of the Collector and the
appeal therefrom, would not justify the dismissal of the writ petition
on the ground of existence of alternative remedy - High Court rightly
allowed the writ petition.
Rajasthan Escheats Regulation Act, 1956 - Scope and ambit
of - Explained. (Per Banumathi, J.)
Rajasthan Escheats Regulation Act, 1956 - ss.4, 6 -
Compliance of - Discussed. (Per Banumathi, J.)
Doctrines - Doctrine of escheats - Claim of escheat - Burden
of proof - Held : Doctrine of escheat recognises State as paramount
sovereign, in a clear case of failure of heirs - When a claim of
escheat is put forward by the Government, onus to establish that a
property is bona vacantia is on the Government - Burden of proof is
heavy. (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. (Per
Banerjee, J.)
Directing the matter to be placed before Hon'ble the Chief
Justice of India for referring the matter to the Larger Bench, the
Court
HELD: PER R. BANUMATHI, J.:
1.1 Escheat is a bona vacantia and can be exercised only in
case of abandoned property:- Article 296 is the constitutional
provision enabling vesting of the property with the State
Government if a person dies intestate and without any heir
qualified to succeed to his or her property. Section 29 of the Hindu
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Succession Act, 1956 embodies the principle of escheat. The
doctrine of escheat postulates that where an individual dies
intestate and does not leave behind an heir who is qualified to
succeed to the property, the property devolves on the
Government. Section 29 of the Hindu Succession Act comes into
operation only on there being a failure of heirs. The word 'failure'
used in Section 29 makes it clear that there must be a total
absence of any heir to the person dying intestate. The absence of
any heir is a pre-condition for initiation of the proceedings for
escheating of the property to the Government. The provisions
of the Rajasthan Escheats Regulation Act, 1956 will be applicable
only when the person dies intestate and/or is not succeeded by
any of the person under Section 8 of the Hindu Succession Act or
other succession laws. [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 the
probate case has gone against the Trust, the Trust has no
semblance of right, title and interest in the property, unless the
Trust succeeds in the pending testamentary appeal, the Trust
has no right to lay claim in the properties under escheat. The
Trust having no right in the property, appears to have now taken
up the cause of agnates, which the High Court did not keep in
view. Once the decision in the probate case had gone against
them, unless they succeed in the appeal, Khetri Trust has no
semblance of right to lay a claim over the properties. [Paras 32,
33][876-E-F; 877-A]
1.3 As observed by the District Collector, there were
number of objectors to the grant of probate in favour of Khetri
Trust and all of them have gradually withdrawn their objections
and the conduct of the agnates raises suspicion on their bonafide.
When the agnates/other persons claiming right in the estate have
withdrawn their objections, naturally the inference is that they
have accepted the claim/right of Khetri Trust, which claims
through the Will. An inference has to be drawn against the persons
that they have no right of claim in the properties. The so called
agnates or cognates cannot adopt double stand i.e. one claiming
right in themselves and another allowing Khetri Trust to claim
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through the Will. The respondents no.8 and 9 and respondent
No.6 have not produced any document showing their status as
agnates nor initiated any proceeding for declaration of their status.
There is no merit in the contention of the respondents that there
was no enquiry and satisfaction of the authorities as to "failure of
heirs" before initiating proceedings under the Escheats Act. The
Sub-Divisional Officer, Khetri has sent a report dated 16.02.1987
to the District Collector, Jhunjhunu that the deceased expired in
Mumbai on 28.01.1987 without any legal heir and that he has
executed one Will by virtue of which Khetri trust was constituted.
The SDO's report also states about the absence of brother or
sister or any child or other legal heirs. [Paras 35-37][878-C-E,
G-H; 879-A]
1.4 There is no merit in the contention of the respondents
that the initiation of the proceedings under the Escheats Act was
done without following the procedure laid down by the law and
without enquiry and the finding as to "failure of heirs". The report
of the SDO dated 16.02.1987 and the letter of the District
Collector, Jhunjhunu dated 15.06.1987 addressed to the
Government of Rajasthan shows that in compliance of the
provisions of the Escheats Act, an enquiry was conducted and
the authorities satisfied themselves as to "failure of heirs" before
initiating action under Escheats Act. The materials on record
show that the proceedings under the provisions of Escheats Act
has been initiated only after making proper enquiry about possible
legal heirs of the deceased and on finding about the absence of
legal heirs, the authorities satisfied themselves that the properties
are bona vacantia. Due procedure was followed by the concerned
officials as per the Escheats Act following the provisions of Section
4 of the Escheats Act and only after ascertaining that there was
"failure of heirs", the inventories of the properties were prepared
and possession was taken over on all the vacant properties and
mangers were appointed for the requisite purposes. Deceased
died way back in the year 1987. Till this date, the agnates have
not instituted any suit or proceedings to establish their status
nor obtained any declaration from the competent authorities. In
the absence of any document declaring status of respondents No.4
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to 8 as cognates/agnates of the deceased, State of Rajasthan
cannot be faulted for initiating action under the Escheats Act,
1956 treating the properties of the deceased as lawaris for want
of heir or successor or as bona vacantia. Moreover, it is not the
case of the respondents No.4 to 8 that they represent all the
agnates. No claimant came forward before the Tehsildar; only
the person who claimed as Manager of the Khetri Trust appeared
before the Tehsildar. Considering the facts and circumstances of
the case, initiation of proceedings under the Escheats Act cannot
be said to be erroneous warranting interference. [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 Rajasthan
Escheats Act, 1956 regulate the procedure for initiation of
proceedings and making of enquiries in the matter of lawaris
properties vesting in the State of Rajasthan qua ultima heres under
Article 296 of the Constitution of India by escheat or as bona
vacantia. The Act applies to the properties vesting in the State.
Section 2(4) of the Rajasthan Escheats Regulation Act, 1956
defines "property to which this Act applies". The Rajasthan
Escheats Regulation Act is a complete Code in itself. The
preamble sets out the scope and ambit of the statute. The Act
being a comprehensive legislation sets out the entire scheme
relating to the constitutional power under Article 296 and provides
for:- a) the making of enquiries; b) for custody and disposal; and
c) properties vesting in the State under Article 296 of the
Constitution. The scope of the Act is to:- a) determine the rightful
owner and to restore the property in his/her favour; b) secure
and safeguard the property pending under such enquiry; c)
adjudicate upon the contesting claims prima facie, at the same
time enabling the properties to avail remedies of Civil courts;
and finally d) pass orders of vesting after giving opportunities to
everybody and after holding a detailed enquiry. Considering the
scheme of the Act, in particular, Section 4, provides that when
the Tehsildar receives information as to the existence within
Tehsil of any property to which this Act applies, whether or not in
the possession of any person. the Tehsildar shall - a. ascertain
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whether or not there is any person entitled to such property; b.
prepare an inventory thereof showing the prescribed particulars;
c. take over possession of it in the prescribed manner; and d.
make a report of the Collector. As per the proviso to Section 4 of
the Act, if the property is in the 'present possession of any person',
such possession shall not be disturbed. [Paras 40-42][880-G-H;
881-A, C-H; 882-A]
1.6 The provisions of Section 4 of the Rajasthan Escheats
Regulation Act have been substantially complied with. The letter
dated 03.07.1987 from Dy. Secretary to District Collector,
Jhunjhunu to initiate proceedings under the Act was in reference
to the letter dated 15.06.1987 sent by the District Collector,
Jhunjhunu to the Dy. Secretary by which the District Collector
had apprised about the factual position of the investigation
conducted by it in view of the procedure laid down under Section
4 of the Act. By letter dated 22.07.1987, the Tehsildar Khetri
was directed to initiate proceedings under the Rajasthan Escheats
Act with respect to properties situated in Khetri and also to collect
details of properties situated outside the State of Rajasthan. By
attachment order dated 03.08.1987, immovable properties i.e.
agricultural lands and orchards in village Hada Fatehpura was
taken over. It is clear that in accordance with provisions of the
Act, the concerned officials first made inquiry to ascertain whether
there was any legal heir of the deceased; issued notices and then
prepared the inventories and after the spot inspection, attached
the properties and taken over the possession of the vacant
properties and submitted report to the Collector. The provisions
of the Escheats Act, 1956 has been substantially complied with.
[Paras 44, 45][882-E-F; 883-D-E]
1.7 When the appeals were pending before the Delhi High
Court and before the Board of Revenue involving disputed
questions, the High Court ought to have directed the parties to
avail efficacious alternative remedy. The High Court ignoring the
subsequent events that the respondents-agnates have withdrawn
their objections in the probate petition and dismissal of the
probate petition and the appeals pending before the Delhi High
Court and appeal pending before the Board of Revenue erred in
quashing the three communications/orders and directing the State
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to hand over the possession of the properties to the respondents.
Under Article 226 of the Constitution of India, the High Court
having regard to the facts of the case has a discretion to entertain
or not to entertain a writ petition. But the High Court has imposed
upon itself certain restrictions; one of which is an effective and
efficacious remedy available. When efficacious alternative remedy
is available, the High Court would not normally exercise the
jurisdiction. However, alternative remedy will not be a bar at least
in three instances:- (i) where writ petition is filed for enforcement
of any of the fundamental rights; (ii) where there is a violation of
the fundamental right or principles of natural justice; and (iii)
where the orders or proceedings are wholly without jurisdiction
or the vires of an Act is challenged; [vide Harbanslal Sahnia and
Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107.
Notwithstanding the availability of alternative remedy, having
regard to the facts of the case, the High Court has a discretion to
entertain or not to entertain a writ petition. But in the present
case, while considering correctness of the communications/orders
issued way back in 1987, the High Court should have taken into
consideration the subsequent events viz., the judgment passed
by the High Court of Delhi in Testamentary Case and the order
passed by the District Collector under Section 6 of the Act and
the pendency of appeals before the High Court and Board of
Revenue. Challenge to the initiation of the proceedings under
the Rajasthan Escheats Regulation Act, 1956 is already a subject
matter of appeal before the Board of Revenue. Based on the
Will, whether the Trust has a right to claim the properties of the
deceased is also a subject matter of appeal before the Delhi High
Court. While so, exercising jurisdiction under Article 226 of the
Constitution of India, the High Court ought not to have gone
into the correctness of three notices issued on 03.07.1987,
22.07.1987 and 03.08.1987 which themselves culminated into
various final orders. The impugned order takes away the very
foundation of the order passed by the District Collector which is
subject matter of the appeal pending before the Board of Revenue.
There are serious disputed questions of facts especially whether
there was contravention of Proviso to Section 4 and in such view
of the matter, the High Court ought not to have gone into the
correctness of three communications/orders dated 03.07.1987,
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22.07.1987 and 03.08.1987. The High Court ought to have
directed the parties to work out the remedy before the competent
court/authority. [Paras 50-52][885-G-H; 886-A-H; 887-AB]
1.9. Conclusion:- (i) Since the Testamentary Case No.26 of
1987 then pending before the High Court of Delhi for grant of
probate of the Will, has been dismissed and the testamentary
appeal is pending before the High Court, there is no rightful owner
as per the Will. (ii)
Having withdrawn their objections in the
probate proceedings, respondent Nos.5 to 9 are estopped from
making any claim in the properties of the deceased till they
establish their right in a court of law. (iii) The provisions of the
Escheats Act, 1956 was initiated only after enquiring about the
legal heirs of the deceased and before initiation of proceedings
under the Escheats Act, the authorities satisfied itself as to
"failure of heirs" of the deceased and that the properties are
bona vacantia. (iv) The persons claiming as agnates have not
established their status in a court of law recognising them as
rightful owners. (v) There was issuance of public notice and also
to private individuals, before the State of Rajasthan took over
the estate of the deceased by escheat. The provisions of the
Rajasthan Escheats Regulation Act, 1956 have been substantially
complied with. (vi) The State of Rajasthan was right in treating
the property as 'bona vacantia' and right in initiating the
proceedings under the Rajasthan Escheats Regulation Act, 1956.
(vii) Challenge to the initiation of the proceedings under the
Rajasthan Escheats Regulation Act, 1956 is already a subject
matter of appeal before the Board of Revenue. Based on the
Will, whether the Trust has a right to claim the properties of the
deceased is also a subject matter of appeal before the Delhi High
Court. While so, exercising jurisdiction under Article 226 of the
Constitution of India, the High Court ought not to have gone
into the correctness of three notices issued on 03.07.1987,
22.07.1987 and 03.08.1987 which themselves culminated into
various final orders. (viii) There are serious disputed questions
of facts especially whether there was contravention of Proviso to
Section 4 and in such view of the matter, the High Court ought
not to have gone into the correctness of three communications/
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orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The
impugned order of the High Court in Writ Petition No.2713 of
1987 is set aside with the following directions and observations:-
(i) The questions whether the Trust was in present
possession of the Khetri House and other properties and that it
ought not to have been disturbed in terms of proviso to Section 4
of the Act, have to be examined and determined by the Board of
Revenue before whom the appeal against the order of the District
Collector is pending;
(ii) The question whether there is contravention of proviso
to Section 4 of the Act, has to be determined by the Board of
Revenue in the appeal pending before the Board of Revenue.
The further question whether there was due compliance of Section
6 of the Act is also to be examined by the Board of Revenue?
Whether Khetri Trust has a right to claim the properties of
the deceased based on the Will dated 30.10.1985, is a subject
matter of appeal before the Delhi High Court. It is made clear
that this judgment and also the conclusion of the Board of
Revenue will, however, be subject to the decision of the Delhi
High Court in Testamentary Appeal pending before the Delhi
High Court. [Paras 53, 54][887-C-H; 888-A-H]
Bombay Dyeing and Manufacturing Co., Ltd. v. State
of Bombay and Others AIR 1958 SC 328 : [1958] SCR
1122; State of Bihar v. Radha Krishna Singh and Others
(1983) 3 SCC 118 : [1983] 2 SCR 808; Kutchi Lal
Rameshwar Ashram Trust Evam Anna Kshetra Trust
Through Velji Devshi Patel v. Collector, Haridwar and
Others (2017) 16 SCC 418 : [2017] 9 SCR 766; State
of Punjab v. Balwant Singh and Others 1992 Supp. (3)
SCC 108 : [1991] 1 Suppl. SCR 458; Peirce Leslie
and Co. Ltd. v. Violet Ouchterlong Wapshare AIR 1969
SC 843 : [1969] 3 SCR 203; State of Bihar v. Radha
Krishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR
808; Harbanslal Sahnia and Another v. Indian Oil
Corpn. Ltd. and Others (2003) 2 SCC 107 - referred
to.
STATE OF RAJASTHAN AND ORS.
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PER INDIRA BANERJEE, J. (DISSENTING):
HELD: 1.1 The Escheats Act as per the preamble of the
said Act, is an Act to regulate the making of enquiries in the
matter of properties vesting in the State of Rajasthan qua ultima
heres under Article 296 of the Constitution of India or escheats
or as bona vacantia and provides for custody and disposal thereof.
A perusal of the Preamble makes it amply clear that the Escheats
Act applies only to properties vesting in the State qua ultima
heres under Article 296 of the Constitution of India as bona
vacantia. The vesting of property in the State as bona vacantia
under Section 296 for failure of heirs, is sine qua non for the
applicability of the Escheats Act and statutorily prescribed
jurisdictional requirement for Section 4 read with Section 2(4) of
the said Act. Section 2(4) of the Escheats Act defines "property
to which this Act applies" to mean any property vesting in the
State qua ultima heres under Article 296 of the Constitution of
India by escheats or as bona vacantia. [Paras 16-19] [891-G-H;
892-A-B]
1.2 Section 2(4) refers to property vesting in the State and
not to property which might vest in the State at a future point of
time. Section 4(1) of the Escheats Act provides: Initiation of
proceedings under the Escheats Act is subject to determination,
at least prima facie, of the jurisdictional fact that the properties
in question had acquired the character of "abandoned property".
The expression "escheat" or "bona vacantia" has not been
defined in the Escheats Act. However, the Escheats Act having
been enacted in terms of Article 296 of the Constitution, the
expressions are to be understood in the sense in which they have
been used in Article 296 of the Constitution. Article 296 does
not leave any discretion for determination of what might constitute
escheat or bona vacantia. Article 296 makes it clear that the
principles applicable in this regard, prior to commencement of
the Constitution of India, would continue. [Paras 20-22][892-C,
G-H; 893-A, E]
1.3 Law relating to bona vacantia provides for conservation
of abandoned properties. The nature of the property to which the
Escheats Act applies must necessarily be abandoned property in
the sense that there should be no claimants to the property.
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Property is subject to the right of escheat, where upon intestacy,
there is no heir. Escheat was a right, whereby land of which there
was no longer any tenant, returned by reason of tenure, to the
lord by whom, or by whose predecessors in title, the tenure was
created. The doctrine of escheats postulates that where an
individual dies intestate and does not leave behind any heir, who
is qualified to succeed to the property, the property devolves on
the Government. An abandoned property is a property for which
no claim has been made for a substantially long period. The length
of the period for which no claim is made, should be such as to
raise the presumption that the property is abandoned. [Paras 23,
25, 28 and 29][893-E-F; 894-A, D-E]
1.4 If during an enquiry to ascertain whether property was
abandoned or not, any claim was made, the proceedings had to
be dropped. If no claims are made or if the State arrives at the
opinion that all claims to the property are mala fide, only then
may it apply to the Court for final determination as to the nature
of the property, and thereafter initiate escheat proceedings. In
the proceedings before the Court, the Court would necessarily
have to arrive at a finding that the property had been abandoned
and that there were no heirs who could come forward to claim
the properties. There would have to be total and absolute failure
of heirs. The Single Bench of Delhi High Court had dismissed
Testamentary Case No. 26 of 1987 on 3.7.2012 holding that the
executors of the will had not been able to prove the Will dated
30.10.1985 and the codicil dated 7.11.1985. The judgment and
order dated 3.7.2012 dismissing Testamentary Case no. 26/1987
is of no consequence. It is well settled that if a will fails, the
property has to be treated as intestate, which devolves upon the
natural heirs in accordance with the applicable laws of succession.
The dismissal of the probate case might mean that the Trust cannot
lay claim to the properties. However, that does not make the
properties escheated properties. If, upon enquiry under Section
6 of the Escheats Act, the Collector finds that the property in
question is not of the nature to which the Escheats Act applies,
he is obliged to order the proceedings to be closed and the
property to be allowed to remain with the person in whose
STATE OF RAJASTHAN AND ORS.
v. LORD NORTHBOOK AND ORS
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possession it might then be, or if possession thereof has been
taken under Section 4(c) or Section 6, the Collector is obliged to
restore the property to the person from whom possession was
so taken, as mandated by Section 6 (9)a) of the Escheats Act. It
is true that the respondent trustees filed the writ petition basing
its claim on the Will. The locus standi of the writ petitioners was
never in issue. By entertaining the writ petition the High Court,
in effect, accepted that the respondent trustees of the Trust had
locus standi to file the writ petition, and rightly so. The writ petition
filed by the Trustees having been entertained and kept pending,
the High Court would not have been justified in dismissing it on
the ground that the Trust had no right to lay claim in the properties
in question, in view of dismissal of the probate case, more so,
when the appeal filed by the Trustees is still pending. The High
Court was right in not dismissing the writ petition. The fact that
the High Court had earlier, on the prayer of the Trustees,
adjourned the writ petition sine die, to await the decision in the
Probate application, did not debar the High Court from exercising
its writ jurisdiction after disposal of the Probate case. Even though
the Probate case has gone against the trustees, the appeal was
and is still pending before the Division Bench. It is true that the
Khetri Trust can claim right over the property in terms of the
will, only if it succeeds in the appeal pending in Delhi High Court.
This, did not denude the trustees of the locus standi to pursue
the writ petition challenging the initiation of proceedings under
the Escheats Act. The threshold requirements laid down by
Supreme Court upon interpretation of Article 296 are the
conditions precedent for initiation of proceedings under the
Escheats Act. The authorities would have to be satisfied that the
properties had been abandoned and that there were no known
claimants to the said properties The purpose of the legislation is
to conserve abandoned property and safeguard the property for
the benefit of the rightful claimant who may come later. [Paras
31-33, 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 the
correctness of the judgment and order of the Delhi High Court
in the probate proceedings, since the appeal therefrom is
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pending. However, no adverse inference could have been drawn
by reason of withdrawal of the objections of the agnates and/or
cognates of the deceased. The inter se disputes, if any, between
the agnates and/or cognates of the deceased and the legatees
under his Will, are irrelevant for the purpose of escheat
proceedings. The provisions of Escheats Act regulate the
procedure for initiation of the proceedings and making of
enquiries in respect of properties to which the Escheats Act
applies, that is, 'lawaris' properties vesting in the State qua ultima
heres under Article 296 of the Constitution of India by escheat
or bona vacantia. The Escheats Act applies to properties vesting
in the State. The Escheats Act is a complete Code which covers
the power under Article 296 and provides for making of enquiries;
custody and disposal and for vesting of properties in the State.
However, the condition precedent for exercise of jurisdiction
under the Escheats Act is subjective satisfaction that the property
vests by reason of intestacy and complete failure of heirs. The
power under the Escheats Act can be exercised only after the
Tehsildar ascertains whether or not there is any person entitled
to the properties of the deceased. If the property is in possession
of any person, such possession is not to be disturbed. In the
instant case, it is the case of the respondents themselves that
the properties of the deceased were in the possession of the
Trust through the Manager. The mere issuance of public notice
by the Tehsildar, calling upon persons claiming interest or right
in the properties of the deceased to appear in his office with
documents, failing which it would be presumed that the Khetri
house and other properties of the deceased were lawaris, does
not absolve the Tehsildar of his obligation to enquire into whether
there were any legal heirs. There were claimants who objected
to the grant of probate. Even though these objectors might have
withdrawn their objections to the grant of probate, whatever be
the reason, they did not resile from their claim to be heirs of the
deceased under the Hindu Succession Act. The withdrawal of an
objection to grant of probate tantamounts to withdrawal of the
grounds of objection to the Will and/or in other words, retracting
the allegations of the Will being procured, forged, fabricated,
STATE OF RAJASTHAN AND ORS.
v. LORD NORTHBOOK AND ORS
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fraudulent or created by exercise of undue influence. The
caveators who objected to grant of probate to the Will might very
well have been advised not to proceed in view of the weakness
of their case, or may be for other reasons. That would not make
any difference to their status as agnates or cognates of the
deceased testator. [Paras 49-57][901-A-H; 902-A-B]
1.6 The condition precedent for exercise of jurisdiction is
the existence of the jurisdictional fact of the properties in question
being bona vacantia, in the absence of any heirs. When existence
of jurisdiction by an authority, depends upon existence of a
particular fact, the determination of such a fact is preliminary to
the exercise of jurisdiction. The existence of the fact has to be
decided at the threshold. Where the jurisdiction of an authority
depends upon a preliminary finding of fact, the High Court is
entitled, in an application under Article 226, to determine upon
its own independent judgment, whether or not that finding is
correct. The District Collector clearly erred in rejecting the claims
of agnates on the ground that they had withdrawn their objections
in the probate proceedings. Withdrawal of objections to the
probate proceedings does not estop the agnates and/or cognates
from claiming the property upon failure of the probate application.
[Paras 67, 68 and 70][904-B-C, F]
1.7 Under Article 226 of the Constitution of India, the High
Court, having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. The power of the
High Court to issue prerogative writs is wide. The Constitution
does not place any limitation on such power. However, the Courts
have, through judicial pronouncements, evolved self imposed
restrictions on the exercise of power by the writ Court. When an
efficacious alternative remedy is available, the High Court does
not normally exercise jurisdiction. However, when a writ petition
has been entertained and kept pending for years, it would not be
appropriate to reject the writ petition only on the ground of
existence of an alternative remedy. It would also be relevant to
note that the remedy of appeal availed by the Trustees was against
the order of the Collector passed in 2016 almost two decades
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after the writ petition had been filed. The supervening
circumstance of the order of the Collector and the appeal
therefrom, would not justify the dismissal of the writ petition on
the ground of existence of alternative remedy. The writ petition
filed in 1987 had been pending in the High Court for about three
decades. Once the writ petition had been entertained and kept
pending, it should not be rejected on the ground of existence of
alternative remedy of appeal before the Board of Revenue. In
deciding the question of maintainability of a writ petition in view
of existence of alternative remedy, this Court cannot forget that
the power to issue prerogative writs under Article 226 of the
Constitution of India is plenary in nature. The High Court, having
regard to the facts of the case, has discretion to entertain or not
to entertain a writ petition. The existence or even invocation of
alternative remedy has nothing to do with the jurisdiction of the
writ court. Even if a party has already availed of the alternative
remedy by invoking the appellate jurisdiction, as also the
jurisdiction under Article 226, the party could elect to prosecute
proceedings under Article 226 for the same relief. The High Court
has rightly allowed the writ petition. This appeal is liable to be
dismissed. [Paras 71-75, 78][904-G-H; 905-A-E; 906-D-E]
Bombay Dyeing Manufacturing Co. Ltd. v. State of
Bombay AIR 1958 SC 328 : [1958] SCR 1122; Calcutta
Discount Company v. ITO, Companies District I and
Ors. AIR 1961 SC 372 : [1961] SCR 241 - followed.
Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra
Trust v. Collector, Haridwar & Ors. (2017) 16 SCC 418
: [2017] 9 SCR 766 -relied on. State of Bihar v. Radha
Krishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR
808; Union of India v. Hindalco Industries (2003) 5
SCC 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 of
Hindu Kanya Mahavidyalaya Sitapur, U.P. & Ors.
STATE OF RAJASTHAN AND ORS.
v. LORD NORTHBOOK AND ORS
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(1987) 4 SCC 525 : [1988] 1 SCR 357; Municipal
Council, Khurai and Anr. vs. Kamal Kumar & Anr. AIR
1965 SC 1321 : [1965] SCR 653; M.G. Abrol, Addl.
Collector of Customs, Bombay & Anr. v. Shantilal
Chhotelal & Co. AIR 1966 SC 197 : [1966] SCR 284;
State 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)
Supp. (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, Fourth
Edition - referred to.
Case Law Reference
In the Judgment of R. Banumathi, J.
[1958] SCR 1122
referred to
Para 16
[1983] 2 SCR 808
referred to
Para 16
[2017] 9 SCR 766
referred to
Para 16
[1991] 1 Suppl. SCR 458
referred to
Para 21
[1969] 3 SCR 203
referred to
Para 24
[1983] 2 SCR 808
referred to
Para 26
(2003) 2 SCC 107
referred to
Para 51
In the Judgment of Indira Banerjee, J.
[1958] SCR 1122
followed
Para 24
[1991] 1 Suppl. SCR 458
referred to
Para 34
[2017] 9 SCR 766
relied on
Para 35
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C
D
E
F
G
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861
[1983] 2 SCR 808
relied on
Para 35
[1961] SCR 241
followed
Para 65
[2003] 3 SCR 377
relied on
Para 66
[1968] SCR 823
relied on
Para 68
[1963] SCR 778
relied on
Para 68
[1988] 1 SCR 357
relied on
Para 76
[1965] SCR 653
relied on
Para 77
[1966] SCR 284
relied on
Para 77
[1977] 3 SCR 120
relied on
Para 77
[2003] 3 Suppl. SCR 232
relied on
Para 77
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6677
of 2019
From the Judgment and Order dated 17.11.2016 of the High
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil
Writ Petition No. 2713 of 1987
 P. S. Narsimha, ASG, S. S. Shamshery, AAG, Amit Sharma, Vikas
Malik, Ankit Raj, Ms. Indira Bhakar, Ms. Ruchi Kohli, Rahul G. Tanwani,
Vikash Shukla, Advs. for the appellants.
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
R. BANUMATHI, J.
1. Leave granted.
2.