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REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 3878 OF 2009

KUTCHI LAL RAMESHWAR ASHRAM                               TRUST EVAM ANNA KSHETRA  TRUST THR. VELJI DEVSHI PATEL                               ....APPELLANT     

Versus  

COLLECTOR, HARIDWAR & ORS.                    .....RESPONDENTS  

J U D G M E N T

Dr D Y CHANDRACHUD, J

1 This  appeal  has  arisen  from a  judgment  rendered  on  15  May 2007 by  a

Division Bench of the High Court of Uttarakhand at Nainital. Finding no substance

in the writ petition filed under Article 226 of the Constitution, the High Court affirmed

the  order  passed by the  Collector,  Haridwar  on  12  May 2003  holding  that  the

property in dispute stands vested in the government under Section 29 of the Hindu

Succession Act, 1956. This finding has been premised on the basis that there exists

no heir to succeed to the property following the death of Mohan Lal.

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2 The petitioner claims to be a public trust registered under the Bombay Public

Trusts Act, 1950. The Trust claims to have a vast amount of property at Haridwar

which is being used for charitable purposes including (i) arranging for the stay of

pilgrims and saints  who visit  Haridwar  and providing food and other  facilities  to

them; and (ii) performing and organizing religious functions. The petitioner conducts

a Sanskrit Vidyalaya as well as a dispensary.  

3 Swamy Udhav  Das Ji  Maharaj  was  visually  challenged.  On 28 November

1955, he is stated to have purchased land admeasuring two bighas and fifty khewat

at Haridwar in the name of his  chela, Mohan Lal. According to the petitioner, the

Swamy founded the Kutchi  Lal  Rameshwar  Ashram Trust.  He is  stated to  have

executed  a  will  on  22  October  1956  nominating  some  individuals  who  would

manage and administer his properties, including the property in question, after his

lifetime. According to the petitioner, this was a second registered will executed by

the Swamy since some of those who were nominated in an earlier registered will

were not inclined to accept the responsibility.  

4 On 13 January  1957,  the  Swamy died.  The Trust  is  stated  to  have been

registered on 11 November 1957. Among the objects of the Trust, are the following:  

“4. The main purpose for which the Ashram was established at Haridwar under the inspiration of Mahrajshri Odhavdasji has been to provide a centre and shelter for those Kutchi people in particular and others in general who go to the Holy Shrines at Haridwar, for the purposes of devotion and their peace of mind and  the  same  shall  continue  to  be  the  main  objective  and purposes of the Trust along with any other objective which might further the main object such as religious education prayers etc.  

5. It  was  the  cherished  object  of  the  revered  Maharajshri Odhavdasji  that  the  Ashram should  provide  both  shelter  and

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food to the deserving and this is being done within the limitation of the resources at the disposal of the Trust. Many people have expressed their  desire to  donate moneys for the purposes of running  an  “Anna  Kshetra”  as  desired  by  their  late  Guru Maharaj.”   

According to the petitioner, all the movable and immovable properties were vested in

the Trust. On 23 March 1958, an unregistered declaration is stated to have been

executed by Mohan Lal stating that though the property was purchased in his name

by the late  Swamy, neither  he  nor  his  legal  heirs  would  have any rights  in  the

property. The whereabouts of Mohan Lal are not known since 1958.

5 On 10 July 2001, a suit1 was instituted by the petitioner seeking an injunction

against  the  third  respondent  (an  individual  by  the  name  of  Swamy  Mahanand

Awdhut Tatambri) described in these proceedings as :

“Chela  Swamy  Brahmchari  Ji  Awdhut,  Resident  of  Tatambri Ashram,  Sapt  Sarovar  Road,  Bhoopat  Wala,  Haridwar, Uttarakhand.”

The suit for injunction appears to have been instituted on the ground that the third

respondent was attempting to make a construction on some part of the property in

dispute. A few months after the institution of the suit, the third respondent filed a

complaint  on  15  October  2001  before  the  Collector  alleging  that  the  property

belonged to Mohan Lal. According to him, a Patta was executed on 28 November

1955  in  favour  of  Mohan  Lal  by  Govind  Ram and Shiv  Ram.  According  to  the

complaint, Mohan Lal had died and there being no legal heir, the property stands

vested in the state government under Section 29 of the Hindu Succession Act 1958.

1 Suit 225 of 2011

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6 The  Collector  issued  a  notice  to  the  petitioner  following  receipt  of  the

complaint. A reply was filed before the Collector on 13 November 2001. The reply

traces the acquisition of the property by the late Swamy in the name of his disciple

Mohan Lal on 28 November 1955 and adverted to the will executed and registered

by the Swamy on 22 November 1956.  The reply  relied upon the declaration by

Mohan Lal on 23 March 1958 stating that he had no right or interest in the property.

The reply adverted to the construction carried upon the property by the Kutchi Lal

Rameshwar  Ashram  Trust  after  plans  were  duly  sanctioned  by  Haridwar

Development Authority. The reply also referred to the fact that the property has been

assessed to municipal taxes in the name of the Trust. The Trust claims to have built

upon the property and to be in occupation without interruption for forty-five years.

Moreover, it was stated that a suit before the Civil Judge, Haridwar was instituted by

the Trust since Swamy Mahanand Awdhut Tatambri who had recently purchased the

adjoining property had carried out certain unauthorized constructions that affected

the  rights  of  the  Trust.  The petitioner  claimed that  the  complaint  against  it  was

instituted before the Collector as a reprisal for the dispute with the adjoining owner

which had led to the institution of a suit before the Civil Court.

 7 On 12 May 2003, the Collector at Haridwar adjudicated upon the notice to

show cause issued by him.  The Collector  held that  a  patta of  the property was

secured by Mohan Lal on 15 July 1955 and on 28 November 1955.  According to the

Collector, the Trust had not submitted any documentary evidence from which it could

be deduced that the property had been purchased in the name of Mohan Lal from

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the funds of Swamy Udhav Das. According to the Collector, the alleged admission

deed of 23 March 1958 by Mohan Lal could not be relied upon, since he was shown

to  be  a  resident  of  Reha  Kuch  (presently  Chandrakela)  whereas  the  person  in

whose favour the patta had been executed was a resident of village Ishwar Nagar.

According to the Collector, the Swamy died before 11 November 1957. The Trust, in

the view of the Collector, had failed to submit evidence in respect of the heirs of

Mohan Lal. The Collector proceeded to draw an inference of the death of Mohan Lal

since he was not heard of for seven years. On this basis, the Collector arrived at the

conclusion that the property vested in the State Government by the operation of law.

The City Magistrate at Haridwar was directed to take immediate action for taking

over the possession of the property.

 8 Aggrieved by the order of the Collector, Haridwar, which held that the property

had vested in the state government by the operation of Section 29 of the Hindu

Succession Act, 1956, and directing the City Magistrate to take over possession, the

petitioner  challenged  the  decision  in  a  writ  petition  under  Article  226  of  the

Constitution before the High Court of Uttarakhand. The Trust claimed to be in the

management of the property for over forty-five years and submitted that the only

manner in which action adverse to it could have been taken was on the basis of a

title action pursued through the Administrator General or through a Civil Court. The

Collector, in the submission of the Trust, could not assume the power to decide a

question of title in the manner in which he had purported to do.

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9 Certain developments took place after  the Trust  instituted writ  proceedings

before the High Court of Uttarakhand in May 2003. The third respondent had filed an

appeal against an order of interim injunction passed in favour of the Trust in the suit

instituted by it in the Civil Court. The appeal was dismissed by the Additional District

Judge, Haridwar on 24 December 2003. On 9 May 2005, a Division Bench of the

High  Court  admitted  the  writ  petition  of  the  trust  challenging  the  order  of  the

Collector. The High Court  stayed the order  on the ground,  prima facie,  that  the

Collector had no jurisdiction to do so. On 10 April 2007, a writ petition filed by the

trust was dismissed (erroneously according to the petitioner on the basis of the facts

of another case). The petitioner filed a review petition. The review was allowed by a

Division Bench of the High Court on 15 May 2007 and the earlier order was recalled.

Eventually, it was by its Judgment and Order dated 15 May 2007 that the Division

Bench upheld the decision of the Collector.  

10 The  High  Court  held  that  the  deed  of  acceptance  alleged  to  have  been

executed by Mohan Lal on 23 March 1958 is not a registered document. Moreover, it

has been stated that the executor of the deed of acceptance appears to be a person

different  from the person by the name of Mohan Lal  who was the owner of  the

disputed land. According to the High Court, there was nothing to indicate that Mohan

Lal had died prior to the preparation of the Deed of Trust on 11 November 1957. The

High Court further held that the land was purchased by Mohan Lal in whose favour

the original pattas were executed but there was no evidence to indicate that the

funds were provided by the late Swamy. The findings of the High Court are in the

following terms:

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“10 Undisputedly the land in question was purchased by Mohan Lal through pattas dated 28 November 1955 and 15 July 1955 whereas the appellant’s claim is that the land was purchased by Mahant Udhav Das in the name of Mohan Lal, but no evidence has been adduced on behalf of the appellant showing that the land was purchased from the money of Mahant Udhav Das Ji. The appellant has not been able to establish that Mohan Lal on whose name the land was purchased and the Mohan Lal who had executed the acceptance deed is the same and one person. The appellant trust has not claimed itself the legal heir of Mohan Lal, the owner of the disputed property, but it has claimed the ownership on the basis of the will dated 22 October 1956 which was not executed by Mohan Lal. The owner of the land, Mohan Lal has no legal heir, therefore, the disputed land was liable to be devolved in the State Government in view of the provision of Section 29 of the Hindu Succession Act.  We do not find any infirmity in the order passed by the Collector in this matter.”

11 Leave has been granted in these proceedings on 12 May 2009,  when an

order of status quo was issued.   

12 On behalf of the appellants, it has been submitted by Mr Aryama Sundaram,

learned Senior Counsel that :

(i) The Collector has acted without jurisdiction, in assuming the powers of the civil

court and adjudicating on the vesting of the property in the state by escheat

under Section 29 of the Hindu Succession Act, 1956;

(ii)  In  view  of  the  clear  dispute,  involving  the  setting  up  of  rival  titles  –  the

government claiming under Section 29 and the Trust setting up a contrary title, it

was not open to the Collector to act as a judge in his own cause in his capacity

as a representative of the state government;

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(iii)  Where a dispute of title or in regard to the absence of legal heirs within the

meaning  of  Section  29  arises,  it  is  only  a  civil  court  which  can  exercise

jurisdiction; and

(iv) Assuming that the property belonged to Mohan Lal, the Collector ought not to

have proceeded in the matter without due notice to him and hence the inference

that  Mohan Lal  was dead,  as  not  having been heard of  for  seven years,  is

fallacious.

13 On the other hand, it has been submitted on behalf of the state government

that the order passed by the Collector constitutes a valid exercise of jurisdiction. It

was urged that the Collector had justifiably come to the conclusion that Mohan Lal

had not been succeeded by any heir, upon which the property must be regarded as

having vested in the state under Section 29 of the Hindu Succession Act, 1956. It

may be noted that in the counter affidavit which has been filed in these proceedings,

the  first  and  second  respondents  have  adverted  to  the  source  of  power  of  the

Collector being traceable to Section 29 of the Hindu Succession Act, 1956, besides

which reliance has been placed on Section 167 (2) of the Uttar Pradesh Zamindari

Abolition and Land Reforms Act, 1950 in its application to the State of Uttarakhand.  

14 Shri  M  N  Rao,  learned  Senior  Counsel  appearing  on  behalf  of  the  third

respondent has adopted the submission which was urged before the Collector by his

client as complainant. Learned Senior Counsel however urged that it was for the

Collector and the state to sustain the order which has been passed.

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15 Before we deal with the merits of the rival contentions, an issue needs to be

addressed at the threshold. Initially, on 16 July 2007, notice was issued “confined to

the question as to whether the Collector has power to pass an order under Section

29  of  Hindu  Succession  Act,  1956  in  view  of  the  provisions  of  the

Administrators-General  Act,  1963”.  Leave was granted on 12 May 2009. Relying

upon the initial order, which confined the notice to a specific issue, learned Counsel

for the state submitted that the grant of leave subsequently should not be regarded

as having expanded the scope of  the controversy to all  the issues raised in the

appeal. Hence, the submission is that the only issue which ought to be addressed is

that which was adverted to when notice was issued.

16 While addressing the preliminary issue, it would, in our view, be inappropriate

and, perhaps even unsafe, to lay down a broad generalisation. The constitutional

jurisdiction which is conferred upon this Court has its basis in the advancement of

justice.  The power  of  the court  to render justice should  not  be constricted by a

narrow approach to its mandate. In the context of a criminal case, a Bench of two

Judges  of  this  Court  in  Yomeshbhai  Pranshankar  Bhatt  v  State  of  Gujarat2

considered a situation where a conviction under Section 302 of the Penal Code had

been affirmed by the High Court. Initially, this Court issued notice confined only to

the question as to whether the accused was guilty of the commission of an offence

under any of the parts of Section 304 and not under Section 302. The issue was

whether  the ambit  of  the appeal  was confined to what  was stated in the notice

2 (2011) 6 SCC 312

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initially issued. In this context, the Court adverted to the Supreme Court Rules, 1966

which have been framed under Article 145 of the Constitution. Order XLVII Rule 6 of

the rules of procedure of this Court provides as follows:  

“6. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Article 142 of the Constitution enables this Court, in the exercise of its jurisdiction, to

pass such decrees and make such orders as is necessary for doing complete justice

in any case or matter pending before it. After adverting to Article 142, this Court held

as follows :  

“18. It  is, therefore, clear that the Court while hearing the matter finally and considering the justice of the case may pass such orders which the justice of the case demands and in doing so, no fetter is imposed on the Court's jurisdiction except of course any express provision of the law to the contrary, and normally this  Court  cannot  ignore the same while  exercising its  power under Article 142. An order which was passed by the Court at the time of admitting a petition does not have the status of an express provision of law. Any observation which is made by the Court  at  the time of entertaining a petition by way of issuing notice are tentative observations. Those observations or orders cannot limit this Court's jurisdiction under Article 142.”

Hence, the Court observed that at the time of final hearing, it would not be precluded

from considering the controversy “in its entire perspective” and while doing so, it is

not “inhibited by any observation, any order made at the time of issuing the notice”.

A similar  view was taken in an earlier  decision in  State of  Uttaranchal v  Alok

Sharma3.  In  Indian  Bank v  Godhara  Nagrik  Cooperative  Credit  Society

3 (2009) 7 SCC 647

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Limited4, a Bench of two Judges of this Court held that though a limited notice was

issued initially, leave having  been  granted  thereafter,  “all  the  contentions  of  the

parties are now open”.  

17 We respectfully reiterate and adopt this view which is based on a sagacious

approach to the constitutional powers that are conferred upon the Court. Article 142

embodies the fundamental  principle that the jurisdiction of  the court  is to render

complete justice and as an incident of it, the court may pass such decrees or orders

as it considers fit. When the court initially issues a limited notice but subsequently

grants leave, the scope of the appeal does not raise a matter of jurisdiction but of

judicial discretion. Since it constitutes a matter of discretion and not of jurisdiction,

the guiding principle has to be the advancement of substantial justice.  

18 Section  29  of  the  Hindu  Succession  Act,  1956  has  been  invoked  by  the

Collector. Section 29 provides as follows:

“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.”  

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 government. Though

the property devolves on government in such an eventuality, yet the government

4 (2008) 12 SCC 541

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takes it subject to all its obligations and liabilities. The state in other words 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”, as held in State of Punjab v Balwant

Singh5. This  principle  from  Halsbury’s Laws of  England6 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. In State of Bihar v Radha Krishna Singh7,  a Bench

of three Judges of this Court formulated the principle in the following observations :  

“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  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.” (id at p. 216)  

Mulla’s Hindu Law8 succinctly summarises the position thus :

“Where the Crown or Government claims by escheat, the onus

5 (1992) Suppl (3) SCC 108 6 4th Ed. Vol 17, para 1439 7 (1983) 3 SCC 118 8 Twenty – second edition, pp. 1260-1261

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lies on it to show that the owner of the estate died without heirs. An estate taken by escheat is subject to the trusts, charges and legal  obligations  (if  any)  previously  affecting  the  estate,  e.g., mortgages and other encumbrances. This section rules that in case of failure of all the heirs recognised under the Act, on the death of the owner intestate, his or her property devolves on the Government. The Government takes the property subject to all legal obligations and liabilities to which an heir would have been subject  if  the  property  had  devolved  upon  the  heir  by succession. The word ‘failure’ used in the section is very clear and indicative of the fact that there must be a absence of heirs of the intestate.”  

In  Rambir Das v Kalyan Das9 a Bench of two learned Judges of this Court dealt

with  a  case  of  Shebaitship.  Citing  the  authority  of  Justice  B  K  Mukherjea’s

celebrated Tagore Law Lectures with approval, this Court took note of the position

of law elucidated in the lectures :  

“As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in  the  founder,  it  follows  the  line  of  founder's  heirs;  if  it  is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the  line  appointed  by  the  donor  fails  altogether,  shebaitship reverts to the family of the founder.”  

On the question of escheat, Justice B K Mukherjea observes thus :

“As there is always an ultimate reversion to the founder or his heirs, in case the line of Shebaits is extinct, strictly speaking no question  of  escheat  arises  so  far  as  the  devolution  of shebaitship is concerned.  But  cases may be imagined where the  founder  also  has  left  no  heirs,  and  in  such  cases  the founder's properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State  would  possibly  be  the  same  as  those  of  the  founder himself,  and  it  would  be  for  it  to  appoint  a  Shebait  for  the debutter property. It  cannot be said that the State receiving a dedicated property by escheat can put an end to the trust and treat it as secular property.”

In other words, even in a situation where a founder or his line of heirs is extinct, and

the properties escheat to the state, the state which receives a dedicated property is

9 (1997) 4 SCC 102

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subject to the trust and cannot treat it in the manner of a secular property. In fact, we

may note, Section 29 expressly stipulates that the state “shall take the property

subject to all the obligations and liabilities to which an heir would have been

subject.”  

19 In deciding this case, this Court must also bear in mind the settled principle

that unless the founder of a math or religious institution has laid down the principle

governing succession to the endowment, succession is regulated by the custom or

usage of the institution. This principle was enunciated over six decades ago by this

Court  in  Mahant Sital  Das  v  Sant Ram10,  rendered by Justice B K Mukherjea,

speaking for a Bench of four judges :  

“10. In the appeal before us the contentions raised by the parties primarily centre round the point as to whether after the death of Kishore Das, the plaintiff or Defendant 3 acquired the rights of Mahant in regard to the Thakardwara in dispute. The law is well settled  that  succession  to  Mahantship  of  a  Math  or  religious institution  is  regulated  by  custom  or  usage  of  the  particular institution, except where a rule of succession is laid down by the founder  himself  who created the  endowment.  As  the  Judicial Committee laid down [ Vide Genda Puri v. Chhatar Puri, 13 IA 100, 105] in one of the many cases on this point; “in determining who  is  entitled  to  succeed  as  Mohunt,  the  only  law  to  be observed is to be found in the custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it…. Mere infirmity of the title of the defendant, who is in possession, will not help the plaintiff”.  

20 The basic issue which has to be addressed in the light of the above principles

is whether the Collector had jurisdiction to decide a question of title by assuming to

himself the power of an adjudicatory forum. The order of the Collector indicates that

10 AIR 1954 SC 606

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the issue as to whether the property would vest in the state government as a result

of a failure of heirs within the meaning of Section 29 was a seriously disputed issue

turning upon an adjudication of conflicting claims. In the process of determining the

issue  purportedly  under  Section  29,  the  Collector  has  adjudicated  upon  various

factual matters including (i) whether the property was purchased in 1955 by Mohan

Lal with the funds provided by Swamy Udhav Das; (ii) the legality of the registered

will  stated to have been executed by the Swamy  on 22 October 1956;  (iii)  the

identity of the person who executed the deed of acceptance dated 23 March 1958 in

comparison with the person in whose name the patta had been acquired in 1955;

(iv)  whether  Mohan  Lal  died  prior  to  the  execution  of  the  deed  of  Trust  on  11

November 1957; and (v) whether a presumption in regard to the death of Mohan Lal

would arise upon his not being heard of allegedly for seven years. The Collector has

proceeded to adjudicate on these, among other, factual issues. Section 29, it may

be noted, embodies a principle but does not provide a procedural mechanism for

adjudication upon disputed questions.  The canvas of  the controversy before the

Court  is an abundant  indication of  matters which were seriously in  dispute.  The

contention of the state that the property would devolve upon it as a result of Mohan

Lal being presumed to be dead and having left behind no legal heir is seriously in

question. Such a matter could not have been adjudicated upon by the Collector by

assuming to himself a jurisdiction which is not conferred upon him by law.  

21 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

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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. To allow administrative authorities of the state – including the

Collector, as in the present case – to adjudicate upon matters of tittle involving civil

disputes would be destructive of the rule of law. 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. In holding that

the Collector acted without jurisdiction in the present case, it is not necessary for the

court to go as far as to validate the title which is claimed by the petitioner to the

property. The court is not called upon to decide whether the possession claimed by

the trust of over forty-five years is backed by a credible title. The essential point is

that such an adjudicatory function could not have been arrogated to himself by the

Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction

of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure

1908.

22 We may at this stage also advert to the provisions of the Administrators –

General Act, 1963. The Act provides for the appointment of persons who are vested

with the powers of an Administrator General. Section 2(a) defines the expression

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‘assets’ thus :

“(a) "assets" means all the property, movable and immovable, of a deceased person, which is chargeable with and applicable to the  payment  of  his  debts  and  legacies,  or  available  for distribution among his heirs and next of-kin”.

The Administrator General is notified under Section 3.

Section 7 allows for the grant of letters of administration by the High Court to the

Administrator General of the state, unless they are granted to the next of kin of the

deceased. Section 7 reads as follows :  

“7.  Administrator-General  entitled  to  letters  of  administration, unless  granted  to  next-of  kin  :-  Any  letters  of  administration granted  by  the  High  Court  shall  be  granted  to  the Administrator-General of the State unless they are granted to the next-of-kin of the deceased.”  

Section 9 empowers the Administrator General to apply to the High Court for the

administration of estates in specified circumstances :  

“9. Right of Administrator-General to apply for administration of estates :-  (1) If- (a) any person has died leaving within any State assets exceeding rupees ten lakhs in value, and  (b)  (whether  the  obtaining  of  probate  of  his  will  or  letters  of administration to his estate is or is not obligatory), no person to whom  any  court  would  have  jurisdiction  to  commit administration of such assets has, within one month after his death,  applied  in  such  State  for  such  probate,  or  letters  of administration, and  (c) (in cases where the obtaining of such probate or letters of administration  is  not  obligatory  under  the  provisions  of  the Indian  Succession  Act,  1925)  ,  no  person  has  taken  other proceedings  for  the  protection  of  the  estate,  the Administrator-General  of  the  State  in  which  such assets  are, may, subject to any rules made by the State Government, within a reasonable time after he has had notice of the death of such person,  and  of  his  having  left  such  assets,  take  such proceedings as may be necessary to obtain from the High Court

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letters of administration of the estate of such person. (2) The Administrator-General shall not take proceedings under this section unless he is satisfied, that there is apprehension of misappropriation, deterioration or waste of such assets if such proceedings are not taken by him or that such proceedings are otherwise necessary for the protection of the assets.”

The  Administrator  General  is  statutorily  empowered  to  move  the  High  Court  to

protect the assets or estate of a deceased from dissipation.  

Section 10 empowers the Administrator General to move the High Court to collect

and take possession of the assets of a deceased person where there is imminent

danger of misappropriation, deterioration or waste of assets :  

“10. Power of Administrator-General to collect and hold assets where immediate action is required :- (1) Whenever any person has died leaving assets within any State exceeding rupees ten lakhs in value, and the High Court for  that  State  is  satisfied  that  there  is  imminent  danger  of misappropriation,  deterioration  or  waste  of  such  assets, requiring  immediate  action,  the  High  Court  may,  upon  the application  of  the  Administrator-General  or  of  any  person interested in such assets or in the due administration thereof, forthwith  direct  the  Administrator-General  -  (a)  to  collect  and take possession of such assets, and  (b) to hold, deposit, realise, sell or invest the same according to the  directions  of  the High Court,  and,  in  default  of  any such directions, according to the provisions of this Act so far as the same are applicable to such assets.  (2)  Any  order  of  the  High  Court  under  sub-section  (1)  shall entitle the Administrator General  (a) to maintain any suit or proceeding for the recovery of such assets;  (b) if  he thinks fit,  to apply for letters of administration of the estate of such deceased person;  (c) to retain out of the assets of the estate any fees chargeable under rules made under this Act; and  (d)  to  reimburse  himself  for  all  payments  made  by  him  to respect  of  such  assets  which  a  private  administrator  might lawfully have made.”

Under  Section  11,  the  High  Court  is  empowered  to  grant  probate  or  letters  of

administration to any other person who appears and establishes his claim :

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“11.  Grant  of  probate  or  letters  of  administration  to  person appearing  in  the  course  of  proceedings  taken  by Administrator-General  :-  If,  in  the  course  of  proceedings  to obtain letters of administration under the provisions of Section 9 or Section 10, -  (a) any person appears and establishes his claim-  (i) to probate of the will of the deceased; or (ii)  to letters of administration as next-of-kin of the deceased, and gives such security as may be required of him by law; or (b) any person satisfies the High Court that he has taken and is prosecuting  with  due  diligence  other  proceedings  for  the protection  of  the  estate,  the  case  being  one  in  which  the obtaining  of  such  probate  or  letters  of  administration  is  not obligatory under  the provisions of  the Indian Succession Act, 1925 (39 of 1925); or  (c) the High Court is satisfied that there is no apprehension of misappropriation, deterioration, or waste of the assets and that the grant of letters of administration in such proceedings is not otherwise necessary for the protection of the assets; the High Court shall – (1) in the case mentioned in clause (a), grant probate of the will or letters of administration accordingly; (2) in the case mentioned in clause (b) or clause (c), drop the proceedings; and (3) in all the cases award to the Administrator-General the costs of  any proceedings taken by him under those sections to  be paid out of the estate as part of the testamentary or intestate expenses thereof.”

Section 12 postulates those eventualities in which administration can be granted to

the Administrator General :  

“12. Grant of administration to Administrator-General in certain cases  :-  If,  in  the  course  of  proceedings  to  obtain  letters  of administration under the provisions of Section 9 or Section 10, and within such period as to the High Court seems reasonable, no person appears and establishes his claim to probate of a will, or  to a grant of letters of  administration as next-of kin of  the deceased, or satisfies the High Court that he has taken and is prosecuting  with  due  diligence  other  proceedings  for  the protection  of  the  estate,  the  case  being  one  in  which  the obtaining  of  such  probate  or  letters  of  administration  is  not obligatory under  the provisions of  the Indian Succession Act, 1925 (39 of 1925), and the High Court is satisfied that there is apprehension of misappropriation, deterioration, or waste of the

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assets  or  that  the  grant  of  letters  of  administration  in  such proceedings  is  otherwise  necessary  for  the  protection  of  the assets; or if a person who has established his claim to a grant of letters of administration as next-of-kin of the deceased fails to give such security as may be required of him by law; the High Court  may  grant  letters  of  administration  to  the Administrator-General.”

Under Section 14, the grant of letters of administration to the Administrator General

can be revoked where an executor or next of kin of a deceased establishes a claim

to probate or letters of administration in preference to the Administrator General :

“14. Recall of Administrator-General's administration and grant of probate etc., to executor or next-of-kin :- If an executor or next-of-kin  of  the  deceased,  who  has  not  been  personally served with a citation or who has not had notice thereof in time to appear pursuant thereto, establishes to the satisfaction of the  High  Court  a  claim  to  probate  of  will  or  to  letters  of administration in preference to the Administrator-General, any letters  of  administration  granted  in  accordance  with  the provisions of this Act to the Administrator-General :  (a) shall be revoked, if a will of the deceased is proved in the State; (b) may be revoked, in other cases, if an application for that purpose is made within six months after the grant to the Administrator-General and the High Court is satisfied that there has been no unreasonable delay in making the application, or in  transmitting  the  authority  under  which  the  application  is made; and probate or letters of administration may be granted to such executor or next-of-kin as the case may be.”

The effect of the grant of probate or letters of administration is provided by Section

20(1) which reads thus :  

“20. Effect of probate or letters granted to Administrator-General :-  (1) Probate or letters of administration granted by the High Court to the Administrator-General of any State shall have effect over all the assets of the deceased throughout India and shall be conclusive as to the representative title against all debtors of the deceased and all  persons holding such assets,  and shall afford  full  indemnity  to  all  debtors  paying  their  debts  and  all persons  delivering  up  such  assets  to  such Administrator-General.”

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23 The above provisions enacted by Parliament define the ambit of the powers

vested in the Administrator General and the circumstances in which he can move

the High Court. Essentially, the Administrator General steps in to protect the estate

of a person who has died and no person to whom any court would have jurisdiction

to  commit  the  administration  of  the  estate  has  come  forth.  The  Administrator

General  is  authorised  by  law  to  move  the  High  Court  to  obtain  letters  of

administration. Where the property or estate of the deceased is in imminent danger,

the Administrator General can be empowered by the High Court to take immediate

steps to safeguard the estate. While permitting the Administrator General to apply to

the High Court for the grant of letters of administration, the law allows any other

individual to appear and establish a claim before the High Court. Where a claim to

probate or  letters of  administration in preference to the Administrator  General  is

established,  an  order  of  revocation  can  be  passed  by  the  High  Court.  Such

adjudicatory functions are entrusted to the High Court. The Administrator General,

as a public official, is conferred with duties and obligations to secure and safeguard

the  administration  of  the  estate  left  behind  by  a  deceased  individual  in  the

circumstances adverted to in the statute. The legislation has not reserved a judicial

power to the Administrator General. Parliament in its wisdom has made provisions to

ensure that estates are not frittered away upon the death of persons who do not

leave  behind  legal  heirs,  by  allowing  the  Administrator  General  to  invoke  the

jurisdiction  of  the  High  Court  to  safeguard  such  estates.  The  conferment  of

adjudicatory functions upon the High Court safeguards against an abuse of power

and facilitates an adjudication of private claims.

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24 In the present case, for the reasons indicated above, we have come to the

conclusion  that  the  Collector  acted  manifestly  in  excess  of  his  jurisdiction  and

launched upon an adjudicatory exercise. This power was not vested in him. The

counter affidavit filed in these proceedings relies upon the provisions of Sub-section

2 of Section 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,

1950  in  its  application  to  the  State  of  Uttarakhand.  Sub-  sections  1  and  2  of

Section167 provide as follows :

“167 (1).  The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely- (a) the subject-matter of transfer shall, with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in  the State Government free from all  encumbrances; and

(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.”

“167 (2). Where any land or other property has vested in the State Government under sub section (1) it shall be lawful for the Collector to take over possession over such or other property and  to  direct  that  any  person  occupying  such  land  or  other property be evicted therefrom. From the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.”  

25 The power conferred upon the Collector by Sub-section 2 of Section 167 can

be exercised only in the circumstances set out in Sub-Section 1.  In the present

case, the provision was clearly not attracted.

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26 For  the above reasons,  we allow the appeal  and set  aside the impugned

judgment of the High Court dated 15 May 2007. In consequence, the Writ Petition

filed by the Appellant is allowed and the order dated 12 May 2003 passed by the

Collector is quashed and set aside.

27 The Civil Appeal is disposed of in the above terms. There shall be no order as

to costs.  

                ……........................................J                          [N V RAMANA]  

                                                    ................................................J                    [Dr D Y  CHANDRACHUD]

New Delhi; September  22, 2017