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

J U D G M E N T

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

Rajasthan Escheats Regulation Act, 1956.

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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 Article 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

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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

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upon  Bombay Dyeing  and Manufacturing  Co.,  Ltd.  v. State  of

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

power under Article 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 State of Bihar v. Radha Krishna

Singh and  Others (1983)  3  SCC 118,  Kutchi  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:- Article 296 is the constitutional

provision  enabling  vesting  of  the  property  with  the  State

Government  if  a  person  dies  intestate  and  without  any  heir

qualified  to  succeed  to  his  or  her  property. Section  29  of  the

Hindu 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 State 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  Article  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.   

18

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 Article 19(l)(f)  or

Article 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

Article 19(l)(f) or Article 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 State 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 Article 296 of the Constitution

of India by escheat or as  bona vacantia. The Act applies to the

properties  vesting  in  the  State.  Section  2(4)  of  the  Rajasthan

Escheats Regulation Act, 1956 defines “property to which this

Act applies” 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 Article 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. The Act being a comprehensive legislation sets out the

entire scheme relating to the constitutional  power under Article

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

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

296 of the Constitution. The scope of the Act is to:- a) determine

the rightful owner and to restore the property in his/her favour; b)

secure and safeguard the property pending under such enquiry;

c) adjudicate upon the contesting claims prima facie, at the same

time enabling the properties to avail remedies of Civil courts; and

finally  d)  pass  orders  of  vesting  after  giving  opportunities  to

everybody and after holding a detailed enquiry.

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 Article 226 of the Constitution of India, the High Court

having regard to the facts of the case has a discretion to entertain

or not to entertain a writ petition. But the High Court has imposed

upon itself certain restrictions; one of which is an effective and

efficacious  remedy  available.  When  efficacious  alternative

remedy is available, the High Court would not normally exercise

the jurisdiction. However, alternative remedy will not be a bar at

least in three instances:-

(i) where writ petition is filed for enforcement of any of the

fundamental rights;  

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 Harbanslal 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 Article 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  Article  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

J U D G M E N T

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 Road

Delhi New Delhi

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 Hindu 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 Article 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 Article 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 Article 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 Article 296 of the Constitution, the expressions are

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

296 of the Constitution,  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 Article 363”

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

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

clear  that  the  principles  applicable  in  this  regard,  prior  to

commencement of the Constitution of India, would continue.  

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”.  In  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 State 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 Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust

vs.  Collector,  Haridwar  & Ors.3 and  State  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  State of Bihar vs. Radha Krishna

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

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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 Article 296 are the conditions precedent for initiation

of proceedings under the Escheats Act.  The authorities would have to

be satisfied that  the properties had been abandoned and that  there

were no known claimants 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 Hindu Succession Act, 1956.  The relevant provisions

of the Hindu 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  Indian  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 3(c) respectively of the Hindu 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 Hindu 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 Article 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 Article

296 and provides for making of enquiries; custody and disposal and for

vesting of properties in the State.  However, the condition precedent for

exercise of jurisdiction under the Escheats Act is subjective satisfaction

that the property vests by reason of intestacy and complete failure of

heirs.

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 Hindu 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 Companies 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

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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. In Calcutta Discount Company vs. ITO, Companies District

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

5 SCC 194, a show cause notice issued under the Central 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 Article 226, to determine upon its own independent judgment,

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whether or not that finding is correct, as held by this Court in State 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  Article  226 of  the

Constitution of India, the High Court, having regard to the facts of the

case, has a discretion to entertain or not to entertain a writ petition.

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.

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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  Article  226  of  the

Constitution of  India is  plenary in nature.   The High Court,  having

regard to the facts of the case, has discretion to entertain or not to

entertain a writ petition.  The existence or even invocation of alternative

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 Article 226, the

party could elect to prosecute proceedings under Article 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 Article 226 of the Constitution on the ground of an

alternative remedy, as held by  this Court, inter alia, in Kuntesh 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  Municipal 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 State

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  Article  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  Kanak 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

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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]