REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6677 OF 2019
(Arising out of SLP(C) No.36771 of 2016)

STATE OF RAJASTHAN AND ORS. ….Appellants

VERSUS

LORD NORTHBROOK AND ORS. ….Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 17.11.2016

passed by the High Court of Rajasthan at Jaipur Bench in DB

Civil Writ Petition No.2713 of 1987 in and by which the High Court

quashed the communications/orders dated 03.07.1987,

22.07.1987 and 03.08.1987 passed by the Deputy Secretary,

Revenue, Govt. of Rajasthan, District Collector, Jhunjhunu and

Tehsildar, Khetri respectively in the matter of taking over the

properties of Sh. Raja Sardar Singh by the State under the
Signature Not Verified

Digitally signed by

Rajasthan Escheats Regulation Act, 1956.

MADHU BALA
Date: 2019.08.29
15:20:13 IST
Reason:

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3. Sh. Raja Sardar Singh expired on 28.01.1987 intestate and

without any legal heirs. 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 such as Khetri House Delhi, Hotel Khetri

Jaipur, Kothi Sukh Mahal, Kothi Jai Niwas, Kothi Amar Hall,

Nizamat Building, Ajit Niwas Bagh Farm, Record Room, Havili

Prohitji Wali, Dera Brijlaji Wala, Farrash Khana Chabutra, Tin

Shed Mela Gugaji and Sabka Patwar Ghar, Jhunjhunu and other

movable and immovable properties. On 16.02.1987, the

Sub-Divisional Officer (SDO), Khetri sent a letter to the District

Collector, Jhunjhunu stating that an information has been

received that Sh. Raja Sardar Singh expired in Mumbai on

28.01.1987 without any legal heir and that he has executed one

Will on 30.10.1985. Sh. Raja Sardar Singh executed a Codicil on

07.11.1985. Based on the Will/Codicil, a trust called “Khetri Trust”

was constituted with four Trustees.

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4. On 24.02.1987, one Dwarka Prasad Parik filed application

before the Tehsildar, Jaipur stating that Sh. Raja Sardar Singh

died without heirs and that there are several valuable properties

left behind him. The said Dwarka Prasad alleged 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.

5. Public Notice by the Tehsildar:- A probe was made upon

the letter dated 16.02.1987 by one Mangilal who informed the

District Collector, Jhunjhunu about the death of Sh. Raja Sardar

Singh and that he died without any legal heir. Hence, the first

condition for initiating proceedings under the provisions of Section

4 of the Rajasthan Escheats Act, 1956 i.e. “Upon receipt of

information as to the existence within Tehsil of any property of

which the Act applies. Whether or not in the possession of any

person” has been satisfied. The SDO, Khetri has sent a report on

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16.02.1987 to the District Collector, Jhunjhunu stating that Sh.

Raja Sardar Singh expired in Mumbai on 28.01.1987 without any

legal heir and that he has executed one Will by virtue of which a

trust by name “Khetri Trust” was constituted and late Sh. Raja

Sardar Singh has donated his movable and immovable properties

to the said trust and the said report of the SDO has also made it

clear that Sh. Raja Sardar Singh has no brother or sister nor any

child and that he was a widower. On 27.02.1987, the Tehsildar,

Jaipur brought out a Public Notice inter alia stating that any

person who has any interest in the properties of the deceased Sh.

Raja Sardar Singh, should be present before him. On 28.02.1987,

the District Collector sent a letter to the Tehsildar to prepare the

inventories of the moveable and immoveable properties of Sh.

Raja Sardar Singh for the purpose of proceeding under the

Rajasthan Escheats Regulation Act, 1956. On 04.03.1987, Naib

Tehsildar issued a notice to Nirbhay Singh, Manager of Hotel

Khetri informing him that he has been appointed as the Inquiry

Officer and directing him to produce all the documents on

05.03.1987. In response to the said Notice, Nirbhay Singh,

Manager on behalf of Khetri Trust filed response stating that Sh.

Raja Sardar Singh, before his death, had vested his movable and

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immovable properties in Khetri Trust and that the Trustees are

running the Hotel and that the properties of Sh. Raja Sardar

Singh do not fall within the ambit of SectionArticle 296 of the Constitution

of India or under the provisions of the Rajasthan Escheats

Regulation Act, 1956 (“The Escheats Act”).

6. The Tehsildar issued a Notice dated 07.03.1987 to Nirbhay

Singh calling upon him to appear personally on 12.03.1987 and

produce all the documents pertaining to the said properties or

else it would be presumed that the properties which are in

possession of Nirbhay Singh are completely unclaimed. The said

Nirbhay Singh appeared before the Tehsildar on 12.03.1987 and

filed his response informing about filing of Probate Case before

the Delhi High Court and that the Trust is in actual possession of

the Khetri House and the entire movable and immovable

properties and that he is representing as Manager of the Trust.

When the matters stood thus pending before the Tehsildar, the

Trustees filed Testamentary Case No.26 of 1987 on 10.03.1987

before the High Court of Delhi for probate of the Will.

7. To initiate the proceedings under the Escheats Act, the

Collector addressed a letter dated 15.06.1987 to the Government

of Rajasthan. After referring to the said letter of the Collector
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dated 15.06.1987, Dy. Secretary, Government of Rajasthan

passed the order dated 03.07.1987 which reads as under:-

“Government of Rajasthan
Revenue (Group-3) Department

No.10(4)/Raj/Group-3/G/87 Dated 3.7.1987
To
District Collector, Jhunjhunu

Sub: Regarding possession and ownership of movable and
immovable properties of late Raja Bahadur Singh Khetri.
Ref: Your letter No.1955/Nyay/87 dated 15.06.1987

Sir,
From the captioned subject and contents of your order, it is
deemed that Shri Raja Bahadur Singh had died intestate. The
properties of late Raja Bahadur Sardar Singh would come under the
Rajasthan Escheat Regulation Act 1956, therefore proceedings
under the relevant provisions of Rajasthan Escheat Regulation Act
1956 be initiated in regard to the properties situated at Jhunjhunu
and the concerned District Collectors be informed about the
properties lying in other Districts. In regard to the properties situated
outside the State of Rajasthan concerned State Government be
informed.

After doing the needful, the undersigned will be informed.

R.S. Mittal
Deputy Secretary
Government of Rajasthan”

After referring to the above proceeding of Government of

Rajasthan, the District Collector vide letter dated 22.07.1987

addressing the Tehsildar, Khetri stated that the properties of

deceased Sh. Raja Sardar Singh situated in the State of

Rajasthan are governed by the provisions of the Escheats Act

and directed that the proceedings under the Escheats Act be

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initiated in respect of properties of late Sh. Raja Sardar Singh of

Khetri which are situated in Khetri, District Jhunjhunu. In the said

letter, the District Collector further stated that the possession of

the unclaimed properties be taken over in favour of the State and

to take necessary action in this regard at the earliest. The letter

of the District Collector also states that the other properties

owned by Sh. Raja Sardar Singh in other States or abroad be

collected and action be taken accordingly. Based on the said

proceedings of the District Collector, the Tehsildar has taken

possession of the properties in Khetri vide Spot Possession

Report (31.07.1987). In the Spot Possession Report, it was

mentioned that the seals of Khetri Trust were affixed on the gates

and keys of some of the other properties are with Khetri Trust in

Delhi. The Spot Possession Report also refers to leasing of some

of the properties from the time of Sh. Raja Sardar Singh and

running of a School in one of the properties. The immovable

properties, in particular, the agricultural lands and orchards were

attached by the proceeding dated 03.08.1987. The Tehsildar

submitted a report to the SDO, Khetri containing a list of

properties which were taken over in custody of the State. In the

said Report, it was stated that some of the properties were under

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lock put by the Trust. The Tehsildar also sent another Report

dated 24.05.1989 to the District Collector, Jhunjhunu containing a

list of properties which were taken over in custody of the State

and also that some of the properties were in lock and that the

keys are with the Trust.

8. Other Proceedings:- Various cases have been filed in

respect of movable and immovable properties of Sh. Raja Sardar

Singh. First one was the application under Section 195 of the

Indian Succession Act, 1925 and the application under Section

192 for the appointment of the Curator before the District Court at

Jaipur. Though the details of these applications 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 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, Govt. of Rajasthan,

District Collector, Jhunjhunu and Tehsildar, Khetri respectively.

On 19.11.2001, the High Court of Rajasthan adjourned the

proceedings in the said writ petition sine-die awaiting the decision

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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.

10. Testamentary Case No.26 of 1987:- Based on the Will

allegedly executed by Sh. Raja Sardar Singh on 30.10.1985,

Parmeshwar Prasad and the Trustees of Khetri Trust have filed

the Testamentary Case seeking for probate of the Will read with

codicil dated 07.11.1985. The agnates of Sh. Raja Sardar Singh

raised objections for grant of probate. During the course of the

proceedings, the Delhi High Court was informed that the

provisions of Rajasthan Escheats Regulation Act have already

been invoked and that the State has taken possession of some of

the properties of Sh. Raja Sardar Singh. By an elaborate

judgment dated 03.07.2012, the Delhi High Court dismissed the

Testamentary Case No.26 of 1987 and held that it is for the State

of Rajasthan to decide in accordance with law in pursuance of the

proceedings taken under the Rajasthan Escheats Regulation Act,

1956. The relevant observations made by the Delhi High Court in

the said Testamentary Case will be shortly referred to at the

appropriate place. The executors of the will/trustees have

preferred an appeal against the said judgment dated 03.07.2012

9
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 the deceased, submitted his objections before the

Tehsildar stating that the alleged Will dated 30.10.1985 is not

legally valid and that the said Will has 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

has passed a detailed order on 02.02.2016 rejecting the claims of

the Khetri Trust based on Will and also the claims of the agnates

namely Gajendra Singh, Surender Singh, Hemender Singh,

Nagender Singh and Yogendra Singh. The District Collector has

referred to the order of the Delhi High Court in Testamentary

Case and various other proceedings and held that Sh. Raja

Sardar Singh died intestate and issueless and therefore, Section

29 of the Hindu Succession Act read with Sub-section 9(b) of

Section 6 of the Rajasthan Escheats Regulation Act, 1956

automatically comes into play and all properties left behind by Sh.

Raja Sardar Singh shall vest in the State Government of
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Rajasthan. The District Collector directed that copy of the order

be forwarded to the Public Prosecutor to be presented before the

District Judge, Jaipur for obtaining a vesting order/further course

of legal action as mandated under the Act.

13. Appeal before the Board of Revenue:- Against the order

passed by the District Collector, in terms of Section 7 of the

Escheats Act, Khetri Trust has filed appeal before the Board of

Revenue and the Board of Revenue has stayed the order of the

District Collector vide order dated 12.04.2016 and the said appeal

is pending.

14. Impugned Order:- It is in this background, the High Court

has taken up the Civil Writ Petition No.2713 of 1987 which was

pending for about thirty years in which the trustees have

challenged the communications/orders dated 03.07.1987,

22.07.1987 and 03.08.1987. Though subsequent to those three

communications/orders, various orders have come to be passed

by the High Court, by the District Collector and the appeals

pending before the High Court and the Board of Revenue, the

High Court proceeded to quash those communications/orders

dated 03.07.1987, 22.07.1987 and 03.08.1987 passed by the Dy.

Secretary, Revenue, Govt. of Rajasthan, District Collector,
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Jhunjhunu and Tehsildar, Khetri respectively by holding that the

provisions of the Escheats Act have not been complied with and

that the action by the State in taking over the possession of the

properties of Sh. Raja Sardar Singh is arbitrary and

unsustainable.

15. On behalf of the appellant-State of Rajasthan, learned

Additional Solicitor General Mr. P.S. Narsimha has submitted that

due to the absence of any rightful owner, State of Rajasthan has

rightly initiated the proceedings under the Rajasthan Escheats

Regulation Act, 1956. It was submitted that the High Court has

not appreciated the purport of Sections 4 and 6 of the Escheats

Act which vests the power with the concerned authorities to

initiate proceedings under the Act and to take possession of the

escheat properties and the High Court erred by ignoring the fact

that the communications/orders dated 03.07.1987, 22.07.1987

and 03.08.1987 were in terms of the provisions of the Act. The

learned Additional Solicitor General further submitted that the

Trustees having filed the appeal against the dismissal of the

Testamentary Case and the agnates having filed the appeal

before the Board of Revenue challenging the order of the

Collector, the High Court should have directed the parties to await

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till disposal of the appeal by the Delhi High Court and the appeal

by the Board of Revenue. The learned Senior counsel further

submitted that by the order dated 19.11.2001, the High Court

having adjourned the Writ Petition No.2713 of 1987 sine-die

awaiting the decision of the Delhi High Court, ought to have

awaited the decision of the Delhi High Court in the appeal

preferred against the judgment in the Testamentary Case. It was

contended that after the three communication/orders which were

under challenge in Writ Petition No.2713 of 1987, orders came to

be passed by the courts, competent authorities and while so, the

High Court erred in ignoring the subsequent judgments/orders

and the impugned order 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 and cognates of the deceased of which the State was

well aware and therefore, the properties of Sh. Raja Sardar Singh

cannot be said to be lawaris-abandoned property. Learned Senior

counsel submitted that for escheating the properties, there should

be total absence of any claimant for a reasonable period of seven

years and that the character of the property as an abandoned

property should be conclusively established. By placing reliance

13
upon SectionBombay Dyeing and Manufacturing Co., Ltd. v. State of

Bombay and Others AIR 1958 SC 328, it was contended that

power under SectionArticle 296 of the Constitution can be exercised only

as long as there is no claimant and the property assumes the

character of an abandoned property and that the case in hand

cannot be said to be one of absolute failure of heirs. It was

submitted that the onus to establish that the property is bona

vacantia is upon the Government and the burden of proof is very

high. Reliance was placed upon SectionState of Bihar v. Radha Krishna

Singh and Others (1983) 3 SCC 118, SectionKutchi Lal Rameshwar

Ashram Trust Evam Anna Kshetra Trust Through Velji Devshi

Patel v. Collector, Haridwar and Others (2017) 16 SCC 418. On

behalf of the respondents, it was urged that initiation of the

proceedings under the Escheats Act and taking over the

possession thereof is erroneous as there are claims by the

agnates and also by the Trustees. It was submitted that assuming

that the Escheats Act was applicable, the possession was taken

over from the Trust who was in “present and actual

possession” which is in contravention of proviso to Section 4 of

the Escheats Act. It was further submitted that taking over

possession of the properties by the State from Kherti Trust is

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illegal and that the same is in violation to proviso to Section 4(1)

of the Escheats Act.

17. I have carefully considered the submission and perused the

impugned judgment and the judgment of the High Court of Delhi

in Testamentary Case No.26 of 1987 and other materials on

record. The following points arise for consideration:-

(i) Whether the High Court was right in saying that the
initiation of proceedings under Rajasthan Escheats
Regulation Act, 1956 is not maintainable? Whether
the learned Judge was right in saying that even
assuming that the Act is applicable, taking over
possession of properties is in violation of the
provisions of the Act?

(ii) Whether the High Court was right in quashing the
communications/orders dated 03.07.1987,

22.07.1987 and 03.08.1987 by ignoring the various
subsequent orders passed by the Delhi High Court
and by the competent authorities under the Escheats
Act?

(iii) When the appeal against the probate case is pending
before the Division Bench of the High Court of Delhi
and also the appeal against the order passed by the
District Collector is pending before the Board of
Revenue, whether the High Court was right in
quashing the three communications/orders dated

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03.07.1987, 22.07.1987 and 03.08.1987 in and by
which the proceedings were initiated in terms of the
Rajasthan Escheats Regulation Act, 1956?

18. Contention of the respondents is that it is not a case of

bona vacantia (failure of legal heirs) and the very invocation of

proceedings under the Rajasthan Escheats Regulation Act, 1956

is not sustainable. Next limb of arguments is that even assuming

that invocation of the Rajasthan Escheats Act is correct, the

provisions of the Act have not been strictly followed by the State

Government and the entire proceedings are vitiated. Let me

consider the merits of the first contention that invocation of

proceedings under the Act was not warranted as it was not a case

of lawaris-abandoned property.

19. Escheat is a bona vacantia and can be exercised only in

case of abandoned property:- SectionArticle 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 Succession Act, 1956 embodies the principle of escheat.

Section 29 provides as follows:-

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“29. Failure of heirs.—If an intestate has left no heir qualified to
succeed to his or her property in accordance with the provisions of
this Act, such property shall devolve on the Government; and the
Government shall take the property subject to all the obligations
and liabilities to which an heir would have been subject.”

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.

20. 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.

21. It was held in SectionState of Punjab v. Balwant Singh and Others

1992 Supp. (3) SCC 108 that the State Government does not

take the property “as a rival or preferential heir of the deceased

but as the lord paramount of the whole soil of the country”. In

Balwant Singh’s case, the Supreme Court held as under:-

“11. The property is escheated to the Government when an
intestate has left no heir qualified to succeed to his or her property.

The property shall devolve on the Government and the Government

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shall take the property subject to all the obligations and liabilities of
the property. It is only in the event of the deceased leaving behind
no heir to succeed, the State steps in to take the property.

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

“To whom land escheated.— Escheat in the case of
death intestate before 1926 was to the mesne lord if he
could be found but, as since 1290 sub-infeudation has
been forbidden, in the great majority of cases there was
no record of the mesne tenure, and the escheat was to
the Crown as the lord paramount of the whole soil of the
country.”

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

22. Contention of the learned Senior counsel appearing for

respondents No.5 to 8 is that Section 4 applies only to the

property described in Section 2(4) which refers to a property

“vesting in the State”. It was further submitted that the Rajasthan

Escheats Act, 1956 applies only to properties vesting in the State

qua ultima heres under SectionArticle 296 by escheat or as bona

vacantia and thus, before initiation of any proceeding under the

Act, the property must have acquired the character of an

abandoned property.

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23. Contention of the respondents No.5 to 8 is that the moment

there is a claim, escheating does not arise. It was submitted that

escheat is a bona vacantia and can be exercised only in case of

abandoned property and “failure of heirs” and in the present

case, there is no finding as to “failure of heirs”. It was contended

that for claim of escheat by the Government, it should be

established that the property is in the nature of

lawaris/abandoned property. In support of the contention,

reliance is placed upon Bombay Dyeing’s case, in which unpaid

wages came to be accumulated for about three years. Three

years’ arrears were transferred to Labour Welfare Fund and

remained there unclaimed for three years. Observing that merely

because there was no claim for the unpaid wages for three

years, does not mean that it became abandoned property. In

Bombay Dyeing, this Court held as under:-

“27. It remains to deal with the contention of the respondents that
the impugned legislation is, in substance, one in respect of
abandoned property, and that, by its very nature, it cannot be held
to violate the rights of any person either under SectionArticle 19(l)(f) or
SectionArticle 31(2). That would be the correct position if the character of
the legislation is what the respondents claim it to be, for it is only a
person who has some interest in property that can complain that
the impugned legislation invades that right whether it be under
SectionArticle 19(l)(f) or SectionArticle 31(2), and if it is abandoned property, ex

19
hypothesis there is no one who has any interest in it. But can the
impugned Act be held to be legislation with respect to abandoned
property? To answer this question, it is necessary to examine the
basic principles underlying such a legislation, and ascertain
whether those are the principles on which the Act is framed. The
expression “abandoned property” or to use the more familiar term
“bona vacantia” comprises properties of two different kinds, those
which come in by escheat and those over which no one has a
claim. In Halsbury’s Laws of England, 3rd Edn., Vol. 7, p. 536, para
1152, it is stated that “the term bona vacantia is applied to things in
which no one can claim a property and includes the residuary
estate of persons dying intestate”. There is, however, this
distinction between the two classes of property that while the State
becomes the owner of the properties of a person who dies intestate
as his ultimate heir, it merely takes possession of property which is
abandoned. At common law, abandoned personal property could
not be the subject of escheat. It could only be appropriated by the
Sovereign as bona vacantia. Vide Holdsworth’s History of English
Law, 2nd Edn., Vol. 7, p. 495-96. In Connecticut Mutual Life
Insurance Company v. Moore (333 US 541, 546) the principle
behind the law was stated to be that “the state may, more properly,
be custodian and beneficiary of abandoned property than any other
person”. Consistently with the principle stated above, a law relating
to abandoned property enacts firstly provisions for the State
conserving and safeguarding for the benefit of the true owners
property in respect of which no claim is made for a specified and
reasonable period, and secondly, for those properties vesting in the
State absolutely when no claim is made with reference thereto by
the true owners within a time limited.”

24. Contending that the initiation of the proceedings under the

Rajasthan Escheats Act cannot stand unless the conditions for

escheat are satisfied, reliance was placed upon in Peirce Leslie

20
and Co. Ltd. (In CA No.1174 of 1965) and Miss Violet

Ouchferlong Wapshare and Others (In CA No.1935 of 1966) v.

Miss Violet Ouchterlong Wapshare and Others (In CA No.1174 of

1965) and Peirce Leslie and Co. Ltd. and Others (In CA No.1935

of 1966) AIR 1969 SC 843.

25. Observing that escheat is a doctrine which recognizes the

State as a paramount sovereign in whom the property would vest

upon a clear case of failure of heirs, in Kutchi Lal (2017) 16 SCC

418, this Court held as under:-

“20. …….Section 29 embodies the principle of escheat. The
doctrine of escheat postulates that where an individual dies
intestate and does not leave behind an heir who is qualified to
succeed to the property, the property devolves on the Government.
Though the property devolves on the Government in such an
eventuality, yet the Government takes it subject to all its obligations
and liabilities. The State in other words does not take the property
(at SCC p. 113, para 12) “as a rival or preferential heir of the
deceased but as the lord paramount of the whole soil of the
country”, as held in SectionState of Punjab v. Balwant Singh 1992 Supp (3)
SCC 108. This principle from Halsbury’s Laws of England 4th. Ed.
Vol.17, Para 1439, was adopted by this Court while explaining the
ambit of Section 29. Section 29 comes into operation only on there
being a failure of heirs. Failure means a total absence of any heir to
the person dying intestate. When a question of escheat arises, the
onus rests heavily on the person who asserts the absence of an
heir qualified to succeed to the estate of the individual who has died
intestate to establish the case. The law does not readily accept
such a consequence. ….

21

…….

“25. The principle that the law does not readily accept a claim to
escheat and that the onus rests heavily on the person who asserts
that an individual has died intestate, leaving no legal heir, qualified
to succeed to the property, is founded on a sound rationale.
Escheat is a doctrine which recognises the State as a paramount
sovereign in whom property would vest only upon a clear and
established case of a failure of heirs. This principle is based on the
norm that in a society governed by the Rule of Law, the court will
not presume that private titles are overridden in favour of the State,
in the absence of a clear case being made out on the basis of a
governing statutory provision. …….. The Collector is an officer of
the State. He can exercise only such powers as the law specifically
confers upon him to enter upon private disputes. In contrast, a civil
court has the jurisdiction to adjudicate upon all matters involving
civil disputes except where the jurisdiction of the court is taken
away, either expressly or by necessary implication, by statute……”
[Underlining added].

26. In Radha Krishna (1983) 3 SCC 118, this Court held as

under:-

“272. It is well settled that when a claim of escheat is put forward
by the Government the onus lies heavily on the appellant to prove
the absence of any heir of the respondent anywhere in the world.

Normally, the court frowns on the estate being taken by escheat
unless the essential conditions for escheat are fully and completely
satisfied. Further, before the plea of escheat can be entertained,
there must be a public notice given by the Government so that if
there is any claimant anywhere in the country or for that matter in
the world, he may come forward to contest the claim of the State. In
the instant case, the States of Bihar and Uttar Pradesh merely
satisfied themselves by appearing to oppose the claims of the

22
plaintiffs-respondents. Even if they succeed in showing that the
plaintiffs were not the nearest reversioners of the late Maharaja, it
does not follow as a logical corollary that the failure of the plaintiffs’
claim would lead to the irresistible inference that there is no other
heir who could at any time come forward to claim the properties.”

27. In the light of the above principles, let us consider whether

the State of Rajasthan was right in invocation of the Escheats

Act, 1956 to take the properties of Sh. Raja Sardar Singh by

escheat for want of heir or successor or as bona vacantia for

want of a rightful owner. No doubt, 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.

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 Will executed 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 the

case, the properties of Sh. Raja Sardar Singh were bona

23
vacantia justifying the right of the Government to take the

properties by escheat as a case of “failure of heirs”.

29. Sh. Raja Sardar Singh died on 28.01.1987. The Khetri Trust

was created on 31.01.1987. The Trust deed was executed on

14.04.1987 in 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 Eicher Ltd. have held

the post of Trustees of the Khetri Trust. In Testamentary Case

No.26 of 1987, the High Court of Delhi has pointed out that over

a period of time, Trustees changed and as on 08.07.2003, Lord

Northbrook being son of Lady Olga Manning was made the

Executor Trustee of the Will, apart from Maharaj Gaj Singh of

Jodhpur. The executor of the Will viz. Parmeshwar Prasad had

filed Testamentary Case No.26 of 1987 in March, 1987 under

Section 276 of the Indian Succession Act, 1925 for grant of

probate on the basis of the Will dated 30.10.1985 read with

Codicil dated 07.11.1985. So far as the Khetri Trust is

concerned, it has filed three interlocutory applications bearing

Nos.5737-5739 of 2009. Trustees of Khetri Trust were impleaded

24
as party pursuant to the order passed in interlocutory application

No.5737 of 2009 – application for impleadment of the Trustees.

30. In Testamentary Case, the State of Rajasthan was also

impleaded as a party because of bona vacantia i.e. for want of a

rightful owner. The said interlocutory application bearing No.867

of 1995 for impleadment filed by the State of Rajasthan was

dismissed by the Single Judge against which an appeal was

preferred by the State of Rajasthan before the Division Bench in

F.A.O. (OS) No.166 of 1996. By order of the Division Bench

dated 08.11.1996, the State of Rajasthan was ordered to be

impleaded as a party. But the State of Rajasthan was only

permitted to address the arguments on the basis of the existing

records.

31. Upon detailed consideration of oral and documentary

evidence adduced by the parties, by a detailed order dated

03.07.2012, the High Court of Delhi had dismissed the

Testamentary Case No.26 of 1987 and held that “the

petitioners-executors of the Will were not able to establish

execution of the Will dated 30.10.1985 and the Codicil dated

07.11.1985 in accordance with law and that the executors failed

25
to dislodge the suspicious circumstances surrounding the Will.”

The relevant findings of the High Court are as under:-

“101.1 That the petitioners have not been able to prove the Will
Exhibit P-1 and the Codicil Exhibit P-3. The Will is not proved on
account of the fact that the testimony of PW-1, P.N. Khanna and
RW-8 is dramatically opposite. RW-8 has no reason to speak
untruth, which will benefit him personally in any manner
whatsoever.

………

101.4 That the Will which is executed by the deceased/testator is
incomplete and lacks material particulars. It talks about
bequeathing immovable and movable properties to the Trust
mentioned “herein below” and no details of the properties are
mentioned in the Will itself nor are the copies of the income-tax
return or the wealth-tax return attached as the Will says that details
of the properties are given therein. The petitioners have
independently failed to prove the said documents.”

Against the said judgment dismissing Testamentary Case, the

Trustees had preferred an appeal before the High Court of Delhi

and the same is pending in which, no stay was granted.

32. In the said Writ Petition being WP No.2713 of 1987, the

Trust challenged three communications/orders dated 03.07.1987,

22.07.1987 and 03.08.1987 basing its claim upon the Will and

that they had filed the probate case before the High Court of

Delhi which was dismissed. Once the decision of the High Court

of Delhi in the probate case has gone against the Trust, the Trust
26
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,

in my considered view, did not keep in view.

33. In the Writ Petition No.2713 of 1987, the Trustees of Khetri

Trust having challenged three communication/orders initiating the

proceedings under the Escheats Act, 1956 represented to the

High Court that they had filed a probate case before the High

Court of Delhi and requested the matter be adjourned. Upon

consideration of the representation made by the Trustees of

Khetri Trust that a probate case is pending, the High Court of

Rajasthan by its order dated 19.11.2001 adjourned the Writ

Petition sine-die awaiting the decision of the Delhi High Court.

The Trust thus, chose to seek an adjournment in the Writ Petition

challenging the initiation of the proceedings under the Act till the

final decision of the probate case. 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.

27

34. The agnate such as Gaj Singh Alsisar-respondent No.8 and

other agnates viz. Surender Singh, Hemender Singh, Nagender

Singh and Yogendra Singh have filed their objections resisting

grant of probate of the Will dated 30.10.1985. Subsequently, all

of them have withdrawn their objections. Regarding the conduct

of the agnates withdrawing their objections, observing that the

reasons for such withdrawal is inexplicable, in the concluding

para, the Delhi High Court in its judgment dated 23.11.2012 held

as under:-

“……101.7 There were many objectors who had raised objection to
the grant of probate/the letter of administration but actually each
one of them withdrew. The reasons for withdrawal by them are
inexplicable. No credible reason for the same has been given. This
makes the Court to draw the inference that some forces were
behind the scene which made them withdraw their objections
leaving the field open for the petitioners but for the opposition of the
State of Rajasthan.”

As far as the objection of Gaj Singh Alsisar-respondent No.8, in

the probate proceedings, he subsequently withdrew his

claim/objection on 10.02.2009 suo moto.

35. So far as other objectors are concerned, in probate case

the High Court of Delhi observed as under:-

“16. After filing of the probate petition, a number of objections
were filed in response to the citation published in the “Statesman”

28
on 17.04.1987, which had a wide circulation including in the State
of Rajasthan, where most of the properties were situated. These
objections were filed by the persons, namely, Rajender Singh, who
died after filing of the objection and was represented by his legal
heirs, Hemender Singh, Nagender Singh and Shobha Kanwar. The
other objections were filed by Arjun Singh, Surender Singh,
Narender Singh, Laxman Singh, Dwarka Prasad Parekh and
Raghuvir Singh. Out of these objectors, except Raghuvir Singh, the
rest of the objectors withdrew their objections by filing applications
before the court on 10.02.2009. So far as Raghuvir Singh is
concerned, he was stated to be incarcerated in connection with
some criminal case registered against him in Jaipur Central Jail,
who initially persisted with his objections and made allegations that
the Khetri Trust and other entities had fraudulently fabricated
documents and sold various properties of Raja’s Estate, a number
of times, however, before the start of arguments on the merits of
the petition, Raghuvir Singh also withdrew his objections.”

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 of Sh. Raja

Sardar Singh 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 of Sh. Raja Sardar Singh. The so called agnates or

29
cognates cannot adopt double stand i.e. one claiming right in

themselves and another allowing Khetri Trust to claim through the

Will. It is also to be pointed out that the respondents No.8 and 9

and respondent No.6-Late Rajender Singh have not produced

any document showing their status as agnates nor initiated any

proceeding for declaration of their status.

36. Contention of the respondents is that the condition

precedent for initiation of proceedings under the Escheats Act is

“failure of heirs” and there is no finding by the authorities as to

“failure of heirs” and therefore, the proceedings under the

Escheats Act could not have been initiated. It was submitted that

there was no enquiry conducted to satisfy the authorities as to

“failure of heirs” to succeed to the properties and there was no

finding as to “failure of heirs” and in the absence of finding as to

“failure of heirs”, the proceedings initiated under the Escheats Act

was wholly jurisdiction and hence, the High Court rightly quashed

the orders dated 03.07.1987, 22.07.1987 and 03.08.1987.

37. 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. As pointed out earlier, the Sub-Divisional Officer, Khetri has

30
sent a report dated 16.02.1987 to the District Collector, Jhunjhunu

that Sh. Raja Sardar Singh 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. 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
11.2.1987 of Rajya Sabha, New Delhi, Raja Bahadur Shri Sardar
Singh Khetri has expired in Mumbai on 28.1.1987 without any legal
heir. He has executed only one will by virtue of this a Khetri Trust
was constituted, the trust having four trustees and late Sardar
Singh Ji has donated his movable and immoveable property to the
Trust.

Shri Sardar Singh has no brother or sister nor any child. He
has divorced his wife. His father Amar Singh was adopted from
Alsisar as his grandfather Ajit Singh had only one son Jai Singh,
who died in minor age. Grandfather Shri Sardar Singh had two
daughters one of them was married at Shahpura and other was
married at Pratapgarh and both were expired, but there is a
possibility of their children be alive.

Sd/-Mang
ilal

31

38. The State Government through Tehsildar, Jaipur issued a

notice dated 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 without legal heirs. As seen from the

communication of Naib Tehsildar dated 04.03.1987 and

07.03.1987 addressed to Sh. Nirbhay Singh, an enquiry was

conducted by Nair Tehsildar as to lawaris property of Sh. Raja

Sardar Singh. The letter dated 03.07.1987 from the Deputy

Secretary to District Collector, Jhunjhunu was in reference to the

letter dated 15.06.1987 sent by the District Collector, Jhunjhunu

to the Deputy Secretary by which the District Collector, Jhunjhunu

had apprised about the factual position of the investigation

conducted by him in compliance of the procedure laid down under

Section 4 of the Escheats Act. 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

32
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 Sh. Raja Sardar Singh and on finding

about the absence of legal heirs, the authorities satisfied

themselves that the properties are bona vacantia. In my view, 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.

39. 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 to 8 as cognates/agnates of Sh. Raja Sardar

Singh, State of Rajasthan cannot be faulted for initiating action

under the Escheats Act, 1956 treating the properties of Sh. Raja

Sardar Singh as lawaris for want of heir or successor or as bona

33
vacantia. Moreover, it is not the case of the respondents No.4 to 8

that they represent all the agnates. As discussed earlier, no

claimant came forward before the Tehsildar; only Nirbhay Singh

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.

40. 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 SectionArticle 296 of the Constitution

of India by escheat or as bona vacantia. SectionThe 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” which reads as under:-

Section 2 – Definitions – (4) “Property to which this Act
applies” means any property vesting in the State qua ultima
heres under SectionArticle 296 of the Constitution of India by escheats
or as bona vacantia.

34

Section 3 of the 1956 Act shows that the general superintendence

of the properties to which this Act applies vests in the Collector

and the Board can also give directions to the Collector. These

directions can be given for carrying out the provisions of the Act.

41. The Rajasthan Escheats Regulation Act is a complete Code

in itself. The preamble sets out the scope and ambit of the

statute. SectionThe Act being a comprehensive legislation sets out the

entire scheme relating to the constitutional power under SectionArticle

296 and provides for:- a) the making of enquiries; b) for custody

and disposal; and c) properties vesting in the State under SectionArticle

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.

42. When we consider the scheme of the Act, in particular,

Section 4, it provides that when the Tehsildar receives information

as to the existence within Tehsil of any property to which this Act

35
applies, whether or not in the possession of any person, the

Tehsildar shall –

a. ascertain 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.

43. As pointed out earlier, as against the order passed by the

Collector (dated 02.02.2016), the Trust has preferred the appeal

before the Board of Revenue and the same is pending, all the

questions including the compliance of the provisions of the

Escheat Act, 1956 are raised in the said appeal. We would not

have ventured to go into the merits of the contention as to the

compliance or otherwise of the provisions of the Escheats Act,

1956; since the High Court has quashed the

communications/orders dated 03.07.1987, 22.07.1987 and

36
03.08.1987 passed by the Deputy Secretary, Revenue, District

Collector and the Tahsildar respectively holding that the

provisions of the Escheats Act, 1956 has not been complied with,

we are called upon to examine the merits of the contentions

raised and examine whether there was proper compliance of the

provisions of the Escheats Act, 1956 for initiation of the

proceedings of the Act. If we do not examine the merits of the

contention raised in this appeal, the findings of the High Court

would stand and the appropriate forum will not be in a position to

consider the matter on merits. I have to therefore necessarily

proceed to examine the merits of the contention advanced by the

parties as to the compliance or otherwise of the provisions of

Escheats Act, 1956.

44. As discussed infra, the provisions of Section 4 of the

Rajasthan Escheats Regulation Act have been substantially

complied with. As pointed out earlier in para (4), a public notice

was issued inviting the interested persons to present themselves

before the Tehsildar and produce materials to prove their right.

The Naib Tehsildar thereafter issued notice dated 07.03.1987 to

Nirbhay Singh directing him to produce all documents with proof.

From the materials, it is seen that the inquiry which was

37
conducted 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 was

issued on 27.02.1987 by the Tehsildar, Jaipur calling upon

persons who claim interest or right in the properties of Sh. Raja

Sardar Singh to present himself before his office on 04.03.1987

with entire documents or otherwise, it would be presumed that the

Khetri House and other properties of Sh. Raja Sardar Singh are

lawaris and the same shall be taken to the custody of the State.

Further, it can be seen from the letter dated 04.03.1987 that the

Naib Tehsildar, Jaipur was appointed as Inquiry Officer of all

properties of Sh. Raja Sardar Singh situated at Jaipur. The

Tehsildar issued a notice to Nirbhay Singh/Manager of Hotel

Khetri House on 07.03.1987 calling upon him to personally

appear and produce the entire records of the properties under his

occupation. He was also informed that if he does not appear and

produce the documents, it would be presumed that the properties

are lawaris. After referring to the letter of the Collector dated

03.07.1987, the Dy. Secretary to the State Government directed

appellant No.3-Collector, Jhunjhunu to initiate proceedings under

the Act as it was deemed that the deceased died intestate. The

38
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. By cumulative reading of the contents of above

various proceedings, 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 Sh. Raja Sardar Singh;

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, in our view,

has been substantially complied with.

39

46. The learned Senior counsel for the respondents submitted

that the Khetri Trust was in possession of the property of Sh. Raja

Sardar Singh and the possession was taken over from the Trust

by the Tehsildar in purported proceedings under Section 4 of the

1956 Act. It was further contended that even assuming that the

Act was applicable, the possession was taken over from the Trust

thereby contravening the proviso to Section 4(1) of the Act which

provides that “if such property is in the present possession of

any person, such possession shall not be disturbed”.

Contending that the Trust was in possession of the property of

Sh. Raja Sardar Singh and that the State Government through

Tehsildar had taken over the possession, the learned Senior

counsel for the respondents inter-alia made the following

submissions:-

• Immediately after the demise of Sh. Raja Sardar
Singh on 28.01.1987, vide letter dated 14.02.1987,
Parmeshwar Prasad, one of the Trustees addressed
letter to SDO, Khetri informing about the death of
Sh. Raja Sardar Singh and his bequest in favour of
the Trust.

• Nirbhay Singh vide letter dated 05.03.1987 informed
the Naib Tehsildar, Jaipur that the possession of the
properties of Sh. Raja Sardar Singh lied with the
Trust and that Nirbhay Singh is the Manager of the

40
Trust and was in actual possession of movable and
immovable properties in Khetri House where the
Hotel was being run.

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

The learned Senior counsel submitted that in view of the above

facts, it is beyond any doubt that the properties of the deceased

were “in present possession of the Trust and that such

possession was not only disturbed but destroyed by the State

taking over the possession of the properties”.

47. Of course, as per the Spot Inspection Report dated

31.07.1987, the property – Khetri House was found with locks

with seal of Khetri Trust was affixed. As per the Spot Inspection

Report nobody was found in physical possession of the property

at the time of inspection. Upon consideration of these

submissions inter-alia, the questions arising for determination are

(i)Whether Khetri Trust was in “present possession” of the

41
property at the time of inspection and whether mere affixing of

seal could lead to all inference that the Khetri Trust was in present

possession?; (ii) Whether summoning of Nirbhay Singh was in his

capacity as Manager of the Hotel Khetri or agent or representative

of Khetri Trust?; and (iii) Whether the order passed by the District

Collector under Section 6 is in due compliance of the provisions of

the Act of Rajasthan Escheats Act, 1956?

48. As against the order passed by the District Collector on

02.02.2016, the appeal is preferred before the Board of Revenue

and the same is pending while upholding the invocation of the

provisions of Rajasthan Escheats Regulation Act, 1956 in my

considered view, the above contentions ought to be raised before

the Board of Revenue and the Board of Revenue shall consider

the same on its own merits.

49. Challenging the initiation of proceedings under Escheats Act

1956, the Trustees have filed Writ Petition No.2713 of 1987 way

back in the year 1987 and the same was pending for about three

decades. In 2001, the writ petitioners themselves sought for an

adjournment on the ground of pendency of probate case before

the Delhi High Court and the High Court also adjourned the writ

petition sine-die. Thereafter, the writ petition remained pending for

42
quite some time. As discussed earlier, three

communications/orders dated 03.07.1987, 22.07.1987 and

03.08.1987 and subsequently, number of other orders came to be

passed for taking possession of the properties of Sh. Raja Sardar

Singh. The Delhi High Court dismissed the probate petition filed

by the Khetri Trust by the judgment dated 03.07.2012 and the

appeal filed by the Trust against the said judgment has been

admitted by the Division Bench of the Delhi High Court and the

same is pending. Under Section 6 of the Escheats Act, 1956, the

Collector passed the order on 02.02.2016 dismissing the

objections of the Trust on the basis of the order passed by the

Delhi High Court in probate proceedings. The claim of agnates

was also rejected by the District Collector on the ground that they

had withdrawn their objections in the probate proceedings and

are thus estopped from making any further claim.

50. Challenging the order passed by the District Collector,

appeal has been preferred before the Board of Revenue and the

same is pending. The Board of Revenue stayed the order of the

District Collector by the order dated 12.04.2016. It was thereafter,

the High Court had taken up the Writ Petition No.2713 of 1987

and passed the impugned order quashing the three

43
communication/orders. When the appeals were pending before

the Delhi High Court and before the Board of Revenue involving

disputed questions, the High Court, in my view, ought to have

directed the parties to avail efficacious alternative remedy. The

High Court, in my view, 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 to hand over the

possession of the properties to the respondents.

51. Under SectionArticle 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;

44

(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
SectionHarbanslal Sahnia and Another v. Indian Oil Corpn. Ltd.
and Others (2003) 2 SCC 107].

52. 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 Sh. Raja Sardar Singh is also a subject

matter of appeal before the Delhi High Court. While so, exercising

jurisdiction under SectionArticle 226 of the Constitution of India, the High

45
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, 22.07.1987 and

03.08.1987. The High Court, in my considered view, ought to

have directed the parties to 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
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 Sh. Raja Sardar
Singh till they establish their right in a court of law.

46

(iii) The provisions of the Escheats Act, 1956 was initiated
only after enquiring about the legal heirs of Sh. Raja
Sardar Singh and 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 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 Sh. Raja Sardar Singh 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 Sh. Raja Sardar Singh is also a subject
matter of appeal before the Delhi High Court. While so,
exercising jurisdiction under SectionArticle 226 of the
Constitution of India, the High Court ought not to have
gone into the correctness of three notices issued on

47
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/orders dated 03.07.1987, 22.07.1987
and 03.08.1987.

54. In the result, the impugned order of the High Court in Writ

Petition No.2713 of 1987 is set aside and this appeal is allowed

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?

48
Whether 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 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. Parties shall bear their respective cost.

.…………………………J.

[R. BANUMATHI]

New Delhi;

August 28, 2019.

49
REPORTABLE

THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6677 OF 2019
(ARISING OUT OF SLP (C) NO. 36771 OF 2016)

State of Rajasthan and Ors. … Appellants

VERSUS

Lord Northbook and Ors. …Respondents

JUDGMENT

Indira Banerjee, J.

I have gone through the Judgment of my esteemed sister, but I

have not been able to persuade myself to agree that this appeal be

allowed.

2. This appeal is against a Judgment and Order dated 17.11.2006

passed 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 by the respondents, who claim to be the trustees under a

Will executed by Late Raja Bahadur Sardar Singh of Khetri, (hereinafter

referred to as ‘Raja Bahadur’) and directing that the properties left

1
behind by Raja Bahadur be made over to the writ petitioners.

3. The facts giving rise to the writ petition have been narrated in

the judgment of my esteemed sister. Raja Bahadur, a childless

widower died on 28.1.1987 leaving inter alia the following properties:-

“S.No. Details of the property District Name of the
village
township

1 Khetri House, 5 Sardar Patel Delhi New Delhi
Road
2 Hotel Khetri House Jaipur Jaipur city
3 Kothi Sukh Mahal Jhunjhunu Khetri
4 Kothi Jai Niwas Jhunjhunu Khetri
5 Kothi Amar Hall Jhunjhunu Khetri
6 Nizamat Tehsil Building Jhunjhunu Khetri
7 Ajit Niwas Bagh Farm Jhunjhunu Khetri
8 Record Room Jhunjhunu Khetri
9 Haveli Prohitji Wali Jhunjhunu Khetri
10 Dera Brijlalji Wali Jhunjhunu Khetri
11 Farrash Khana Jhunjhunu Khetri
12 Chabutra inside Town Jhunjhunu Khetri
13 Tin shed Mela Gugaji Jhunjhunu Mehara Jatuwas
14 Sabka Patwar Ghar Jhunjhunu Papurna”

4. On 30.10.1985, that is about one year and three months before

his death, Raja Bahadur had executed a Will, bequeathing his

properties to a Trust to be known as Khetri Trust, of which persons

named in the Will were to be Trustees. On 31.1.1987, that is about

three days after the death of Raja Bahadur, the Khetri Trust was

created.

5. On 14.2.1987, Mr. Parmeshwar Prasad, the original writ

petitioner and one of the trustees named in the Will informed the

Competent Authority, being the Sub Divisional Officer (SDO), khetri

2
that Raja Bahadur had expired on 28.1.1987. An attested copy of the

Will executed by Raja Bahadur was forwarded to the SDO.

6. By a letter dated 16.2.1987, the SDO Khetri informed the

District Collector, Jhunjhunu of the death of Raja Bahadur and the Will

said to have been executed by him. In the aforesaid letter the SDO

indicated the possibility of existence of cognates of the deceased.

7. It is the case of the appellants that, on 24.2.1987, one Dwarka

Prasad Parik filed an application before the Tehsildar, stating that Raja

Bahadur had died without heirs, leaving several valuable properties,

and praying that the properties of Raja Bahadur be declared as

properties of the State.

8. On 27.2.1987, the Tehsildar, Jaipur published a Public Notice,

calling upon persons interested in the properties of Late Raja Bahadur

to appear before him. On 4.3.1987, the Tehsildar issued notice to

Nirbhay Singh of his appointment as Inquiry Officer to enquire about

the movable and immovable properties of Late Raja Bahadur Sardar

Singh and directed the said Nirbhay Singh to produce all documents

before him with proof on 12.3.1987, failing which it would be assumed

that all the properties in possession of Nirbhay Singh were unclaimed.

9. In the meanwhile, on 10.3.1987 the trustees filed a petition

being Probate Petition No.26 of 1987 before the Delhi High Court for

probate of the Will said to have been executed by Late Raja Bahadur.

3

10. One Arjun Singh, father of the respondent No.8, claiming to be

an agnate of the deceased, and others filed objections opposing the

grant of probate of the Will executed by Raja Bahadur.

11. In the meanwhile, by a letter dated 12.3.1987, Nirbhay Singh

responded to the said notice dated 4.3.1987, reiterating that pursuant

to the Will executed by Raja Bahadur, the trustees of Khetri Trust were

in real and lawful possession of the entire properties of Late Raja

Bahadur Singh, and that they had initiated proceedings for probate

being Testamentary Case No.26 of 1987 in the Delhi High Court.

12. By a communication dated 3.7.1987 addressed to District

Collector, Jhunjhunu the Deputy Secretary to the Government of

Rajasthan informed the District Collector that Raja Bahadur was to be

deemed to have died intestate and the SectionHindu Succession Act would be

applicable 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

the Rajasthan Escheats Regulation Act, 1956 (hereinafter referred to as

“The Escheats Act”) in respect of the properties left by Late Raja

Bahadur.

14. On 31.7.1987, the Tehsildar took over possession of the

properties of Raja Bahadur and prepared a Spot Possession Report. On

3.8.1987, possession was taken of the properties specified in a

4
compliance report dated 3.8.1987 submitted by the Tehsildar to the

Collector. On 29.9.1987, the Tehsildar, Jaipur took possession of

Khetri House Hotel from Nirbhay Singh.

15. The respondents and/or their predecessor-in-interest filed the

abovementioned writ petition challenging the initiation of proceedings

under the Escheats Act and the consequential action of taking over

possession of the properties of Raja Bahadur under the provisions of

the said Act, which has been allowed by the judgment and order

impugned in this appeal, and in my view, rightly.

16. 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 SectionArticle 296 of the

Constitution of India or escheats or as bona vacantia and provides for

custody and disposal thereof.

17. 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 SectionArticle 296 of the Constitution of India as bona vacantia.

18. 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.

5

19. 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 SectionArticle 296 of the Constitution of India by escheats or as bona

vacantia.

20. As rightly argued by Dr. Singhvi, appearing on behalf of the

respondents, 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.

21. Section 4(1) of the Escheats Act provides:

4. Report by Tehsildar.:-(1) Upon receipt of 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 whether or not there is any person entitled
to such property.

(b) Prepare an inventory thereof showing the
prescribed particular.

(c) Take over possession of it in the prescribed manner,
and

(d) Make a report to the collector:
Provided that if such property is in the present possession
of any person, such possession shall not be disturbed.

In my considered opinion, 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”.

21. The expression “escheat” or “bona vacantia” has not been

defined in the Escheats Act. However, the Escheats Act having been

6
enacted in terms of SectionArticle 296 of the Constitution, the expressions are

to be understood in the sense in which they have been used in SectionArticle

296 of the Constitution, set out hereinbelow for convenience:-

“296. Property accruing by escheat or lapse or as bona
vacantia Subject as hereinafter provided any property in the
territory of India which, if this Constitution had not come into
operation, would have accrued to His Majesty or, as the case
may be, to the Ruler of an Indian State by escheat or lapse,
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 any property
which at the date when it would have so accrued to His
Majesty or to the Ruler of an Indian State was in the
possession or under the control of the Government of India or
the Government of a State shall, according as the purposes
for which it was then used or held were purposes of the
Union or a State, vest in the Union or in that State
Explanation In the article, the expressions Ruler and Indian
State have the same meanings as in SectionArticle 363”

22. SectionArticle 296 does not leave any discretion for determination of

what might constitute escheat or bona vacantia. SectionArticle 296 makes it

clear that the principles applicable in this regard, prior to

commencement of the Constitution of India, would continue.

23. 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, as argued by

Dr. Singhvi.

24. The question is, what exactly is “abandoned Property” or what

property is “bona vacantia”. SectionIn Bombay Dyeing Manufacturing Co.

7
Ltd. vs. State of Bombay1, a Constitution Bench of this Court while

deciding the challenge to the constitutional validity of the Bombay

Labour Welfare 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 by escheat and those over which no one has a claim.

The relevant paragraph of the judgment is extracted in the judgment of

my esteemed sister.

25. 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.

26. In A-G of Ontario v Mercer2, Lord Selborne LC held “Escheat is

a term of art and derived from the French word escheat that is cadere

excidere or accidere and signifyeth property when by accident the lands

fall to the lord of whom they are holden”. Escheat was an incident of

feudal tenure and was based on the want of tenant to perform the

feudal services.

27. As per Paragraph 1437 of the fourth edition of Halsbury’s Laws

of England, (Vol 17) escheat propter defectum tenentis occurred in the

case of intestate death, where the last owner of the land died intestate,

1 AIR 1958 SC 328
2 A-G of Ontario v Mercer (1883) 8 App Cas 767 at 772

8
without any heir. In this event, a person became possessed of lands as

purchaser, and died intestate without issue; the Lord or the Crown, as

the case might be, re-entered in right of his or its former ownership, the

estate which was granted, having come to an end.

28. As very rightly observed and held by my esteemed sister, 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.

29. 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.

30. In Bombay Dyeing Manufacturing Co. Ltd. (supra), this Court

found that initiation of escheat proceedings on the ground of absence of

claim for a period of three years was unconstitutional.

31. Dr. Singhvi submitted, and in my view, rightly, that if during an

enquiry to ascertain whether property was abandoned or not, any claim

was made, the proceedings had to be dropped.

32. 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

9
thereafter initiate escheat proceedings.

33. 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. To put it differently, there would have to be total

and absolute failure of heirs.

34. As held by this Court in SectionState of Punjab v. Balwant Singh

others (supra), quoted by my esteemed sister, the 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.

35. The proposition that escheat is a doctrine that recognises State

as a paramount sovereign, in a clear case of failure of heirs, and that

when a claim of escheat is put forward by the Government, the onus

lies heavily on the Government to prove the absence of any heir

anywhere in the world, finds support from the judgments of this Court

in SectionKutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust

vs. Collector, Haridwar Ors.3 and SectionState of Bihar vs. Radha

Krishna Singh 7 Ors.4 referred to by my esteemed sister.

36. As noted by my esteemed sister, the Single Bench of Delhi High

Court had dismissed Testamentary Case No. 26 of 1987 on 3.7.2012
3 (2017) 16 SCC 418
4 (1983) 3 SCC 118

10
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.

37. 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. As observed by my esteemed sister, 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.

38. 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 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.

39. 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

11
standi to file the writ petition, and rightly so.

40. 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.

41. 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. At the cost of

repetition, it is reiterated that even though the Probate case has gone

against the trustees, 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

property in terms of the will executed by Raja Bahadur, only if it

succeeds in the appeal pending in Delhi High Court. This in my view,

did not denude the trustees of the locus standi to pursue the writ

petition challenging the initiation of proceedings under the Escheats

Act.

43. As held by this Court in SectionState of Bihar vs. Radha Krishna

(supra), the onus to establish that a property is bona vacantia is on the

12
Government. The burden of proof is heavy. This proposition also finds

support from Kutchi Lal Rameshwar Ashram Trust (supra).

44. The threshold requirements laid down by this Court upon

interpretation of SectionArticle 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 of 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.

45. Mr. Paras Kuhad, learned senior counsel appearing on behalf of

some of the respondents adopted the arguments advanced by Dr.

Singhvi and further submitted, and rightly, that before the Collector

can apply to the Court for vesting or custody of the property in terms of

the Section 6(7) and 6(9) of the Escheats Act, the following tests should

be satisfied.

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

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

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

(iv) The last owner should have died intestate without leaving
any known heirs. In other words there has to be a complete and

13
absolute failure of heirs and thus any possibility of claim being
made to the property by any person.

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

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

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

46. Shri Raja Bahadur Singh being a Hindu by religion was

governed by the SectionHindu Succession Act, 1956. The relevant provisions

of the SectionHindu Succession Act are as follows:-

“8. General rules of succession in the case of males.―The
property of a male Hindu dying intestate shall devolve according to
the provisions of this Chapter:―

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

14

(c) thirdly, if there is no heir of any of the two classes, then upon
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.―Among
the heirs specified in the Schedule, those in class I shall take
simultaneously and to the exclusion of all other heirs; those in the
first entry in class II shall be preferred to those in the second entry;
those in the second entry shall be preferred to those in the third
entry; and so on in succession.

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

Rule1.― The intestate’s widow, or if there are more widows than
one, all the widows together, shall take one share.

Rule2.― The surviving sons and daughters and the mother of the
intestate shall each take one share.

Rule 3.― The heirs in the branch of each pre-deceased son or each
pre-deceased daughter of the intestate shall take between them one
share.

Rule 4.― The distribution of the share referred to in Rule 3—

(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 equal portions; and the branch of his
pre-deceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased
daughter shall be so made that the surviving sons and daughters
get equal portions.

11. Distribution of property among heirs in class II of the
Schedule.―The property of an intestate shall be divided between
the heirs specified in any one entry in class II of the Schedule so
that they, share equally

12. Order of succession among agnates and cognates.―The
order of succession among agnates or cognates, as the case may
be, shall be determined in accordance with the rules of preference
laid down hereunder:―

Rule 1.― Of two heirs, the one who has fewer or no degrees of

15
ascent is preferred.

Rule2.― Where the number of degrees of ascent is the same or
none, that heir is preferred who has fewer or no degrees of descent.
Rule3.― Where neither heir is entitled to be preferred to the other
under Rule 1or Rule 2 they take simultaneously.

xxx xxx xxx

13. Computation of degrees.―(1) For the purposes of determining
the order of succession among agnates or cognates, relationship
shall be reckoned from the intestate to the heir in terms of degrees
of ascent or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be
computed inclusive of the intestate.

(3) Every generation constitutes a degree either ascending or
descending.

xxx xxx xxx

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

xxx xxx xxx

30. Testamentary succession.―1*** Any Hindu may dispose of by
will or other testamentary disposition any property, which is
capable of being so 2[disposed of by him or by her], in accordance
with the provisions of the SectionIndian Succession Act, 1925 (39 of
1925),or any other law for the time being in force and applicable to
Hindus.

Explanation.―The interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a tarwad,
tavazhi, illom, kutumbaor kavaruin the property of the tarwad,
tavazhi, illom, kutumbaor kavarushall, notwithstanding anything
contained in this Act or in any other law for the time being in force,
be deemed to be property capable of being disposed of by him or by
her within the meaning of this.”

47. The Expression “agnate” and “cognate” are defined in Section

3(a) and Section3(c) respectively of the SectionHindu Succession Act to mean:-

16
“3(a)“agnate” – one person is said to be an “agnate” of another if
the two are related by blood or adoption wholly through males:

3(b) …..

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

48. Under Section 29 of the Hindu Succession Act, the property of

an interstate devolves on the Government, if the intestate has left no

heir qualified to succeed to his or her property, in accordance with the

provisions of the SectionHindu Succession Act. The Government is to take the

property subject to all obligations and liabilities to which an heir would

have been subject.

49. 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 pending. However, no

adverse inference could have been drawn by reason of withdrawal of

the objections of the agnates and/or cognates of Raja Bahadur.

50. The inter se disputes, if any, between the agnates and/or

cognates of Raja Bahadur and the legatees under his Will, are irrelevant

for the purpose of escheat proceedings.

51. 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’

17
properties vesting in the State qua ultima heres under SectionArticle 296 of

the Constitution of India by escheat or bona vacantia, as rightly

concluded by my esteemed sister.

52. The Escheats Act applies to properties vesting in the State. The

Escheats Act is a complete Code which covers the power under SectionArticle

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.

53. 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 Raja

Bahadur were in the possession of the Trust through the Manager,

Nirbhay Singh.

54. The mere issuance of public notice by the Tehsildar, calling

upon persons claiming interest or right in the properties of Raja

Bahadur to appear in his office with documents, failing which it would

be presumed that the Khetri house and other properties of Raja

Bahadur were lawaris, does not absolve the Tehsildar of his obligation

18
to enquire into whether there were any legal heirs.

55. 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 Raja Bahadur under the SectionHindu Succession Act.

56. 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, fraudulent or created by exercise of undue influence.

57. 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.

58. In fact, even the ultimate failure of the probate proceedings or

in other words, dismissal of the appeal would not attract the provisions

of the Escheats Act, unless there was a clear finding that Raja Bahadur

left no agnates or cognates and there was complete failure of heirs.

Once there were some heirs in the picture, it was not for the appellants

to protect the properties of Raja Bahadur. It was for the rightful heirs

to recover the properties from those in possession thereof.

19

59. The mere failure of an application for probate would not attract

escheats. When a Will is not probated, the testamentary property is to

be deemed to be intestate property and would devolve upon successor,

if any, as per the general laws of succession. Unless there were

complete failure of heirs, the Escheats Act would not be attracted.

60. It may be useful to refer to paragraph 597 of Volume 39 of the

fourth edition of Halsbury’s Laws of England extracted hereinbelow for

convenience:-

“597. Formerly, when a tenancy in fee simple came to an end
for any reason, the land went back to the lord of whom the
tenant, and he was said to take by escheat. The commonest
instances were escheat for want of heirs (propter defectum
sanguinis), which occurred when a tenant in fee simple died
intestate without leaving an heir-at-law, and escheat on
conviction of felony (propter delictum tenentis), but both these
have been abolished. Escheat in other cases is still possible but
rare. An example is where the land is disclaimed by the trustee
in bankruptcy of the former owner, and another possible case is
on the dissolution of a corporation not governed by the
SectionCompanies Act 1948.”

61. The condition precedent for initiation of proceedings under the

Escheat Act is failure of heirs. In the absence of any finding of failure

of heirs, proceedings could not have been initiated. Under Section 4, it

is the duty of the Tehsildar to see that there is no one entitled to the

property. The proviso clearly prohibits the taking over of property or

disturbance of possession thereof, if the property is in the possession of

any one.

62. Apart from the fact that the proceedings could not be initiated

20
in the absence of satisfaction of complete failure of heirs to succeed to

the properties, Section 6 (7) mandates that if any enquiry involves a

complicated question of law as to title or status, which has not been

previously 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 a

succession certificate in respect of such property or to institute a suit

for declaration of title thereto, within such period not exceeding six

months in the aggregate, as the Collector might fix.

63. Furthermore, if the Collector finds that the property is not of the

nature to which the Act applies, the Collector is obliged to close the

proceedings and allow the property to remain with the person in whose

possession it might be or if possession thereof has been taken under

Section 4 or Section 6, to be restored to the person from whom

possession was so taken.

64. Significantly, in this case, the proceedings under the Escheats

Act were initiated and the orders/communications impugned in the writ

petition were issued, without any finding of complete failure of heirs. In

the absence of formation of the opinion of failure of heirs, the

proceedings initiated under the Escheats Act were wholly without

jurisdiction.

65. SectionIn Calcutta Discount Company vs. ITO, Companies District

21
I and Ors., reported in AIR 1961 SC 372, a Constitution Bench of this

Court held that when exercise of jurisdiction depends upon formation of

any particular opinion, then formation of that opinion is necessary

before acquiring jurisdiction. In such a case, it is open to an aggrieved

person to challenge formation of the opinion in a writ proceeding on

such grounds as are available on this count.

66. SectionIn Union of India vs. Hindalco Industries, reported in (2003)

5 SCC 194, a show cause notice issued under the SectionCentral Excise Act on

the ground of incorrect valuation without recording a satisfaction that

the price was not the sale consideration or that the buyer was a related

person, was held to be without jurisdiction as there was no valid

foundation for ignoring the declared price.

67. It is reiterated at the cost of repition that 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.

68. Where the jurisdiction of an authority depends upon a

preliminary finding of fact, the High Court is entitled, in an application

under SectionArticle 226, to determine upon its own independent judgment,

22
whether or not that finding is correct, as held by this Court in SectionState of

Madhya Pradesh Ors. vs. Sardar D.K. Jadav reported in AIR

1968 SC 1186 and Ujjambai vs. State of U.P. reported in AIR 1962

SC 1621.

69. I am unable to persuade myself to agree with my esteemed

sister that the issuance of notices informing those interested in the

properties left by late Raja Bahadur, that if they did not appear and

produce documents, it would be presumed that the properties were

lawaris, satisfies the conditions precedent for initiation of proceedings

under the Escheats Act.

70. 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.

71. As observed by my esteemed sister, under SectionArticle 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.

72. 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.

23
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.

73. 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 after the writ petition had been filed. The

supervening circumstance of the order of the Collector and the appeal

therefrom, would not in my view, justify the dismissal of the writ

petition on the ground of existence of alternative remedy.

74. As noted by my esteemed sister, 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.

75. 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 SectionArticle 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

24
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 SectionArticle 226, the

party could elect to prosecute proceedings under SectionArticle 226 for the

same relief.

76. There are certain well-recognised exceptions where the bar of

alternative remedy does not apply. Where the authority has acted

without jurisdiction, the High Court should not refuse to exercise its

jurisdiction under SectionArticle 226 of the Constitution on the ground of an

alternative remedy, as held by this Court, inter alia, in SectionKuntesh Gupta

vs. Management of Hindu Kanya Mahavidyalaya, Sitapur, U.P.

Ors. reported in (1987) 4 SCC 525. Complete lack of jurisdiction of an

authority to take the impugned action, as in this case, is always a good

ground to entertain a writ petition.

77. Moreover, as held by this Court in SectionMunicipal Council, Khurai

and Anr. vs. Kamal Kumar Anr. reported in AIR 1965 SC 1321,

M.G. Abrol, Addl. Collector of Customs, Bombay Anr. vs.

Shantilal Chhotelal Co. reported in AIR 1966 SC 197 and in SectionState

of U.P and Others 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 writ petition when an alternative remedy is available to a

party. It is always a matter of discretion with the Court and if the

discretion has been exercised by the High Court not unreasonably or

25
perversely, it is settled practice of this Court not to interfere with the

exercise of discretion by the High Court. The High Court in the present

case has entertained the writ petition and 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 under SectionArticle 136 of the

Constitution to quash the order of the High Court, merely on the

ground of existence of an alternative remedy. As held by this Court,

inter alia, in SectionKanak vs. U.P. Avas Evam Vikas Parishad Ors.

reported in (2003) 7 SCC 693 (701), once a writ petition is entertained,

and the matter is argued at length on merit, it would be too late in the

day to contend that the writ petitioner should avail the alternative

remedy.

78. The High Court has, in my view, rightly allowed the writ

petition. This appeal is, in my view, liable to be dismissed.

……………………………, J
(INDIRA BANERJEE)

AUGUST 28, 2019
NEW DELHI

26
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6677 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 36771 OF 2016)

STATE OF RAJASTHAN AND ORS. …APPELLANT(S)

VERSUS

LORD NOTHBOOK AND ORS. …RESPONDENT(S)

O R D E R

In view of difference of opinions and the distinguishing

judgments (Hon’ble R. Banumathi, J. allowed the appeal and Hon’ble

Indira Banerjee, J. dismissed the appeal), the matter be placed

before Hon’ble the Chief Justice of India for referring the matter

to the Larger Bench.

………………..J.

[R. BANUMATHI]

NEW DELHI ………………..J.
28TH AUGUST, 2019 [INDIRA BANERJEE]