The State Of Rajasthan And Ors. vs Lord Nothbook And Ors.

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.

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 3 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 4 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.

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 10 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.

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.

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.

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:-

August 28, 2019.

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.

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

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.

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.

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.

“(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.

(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.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

78. The High Court has, in my view, rightly allowed the writ petition. This appeal is, in my view, liable to be dismissed.

..............................…, J (INDIRA BANERJEE) AUGUST 28, 2019 NEW DELHI 26 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6677 OF 2019 (@ SPECIAL LEAVE PETITION (CIVIL) NO. 36771 OF 2016) STATE OF RAJASTHAN AND ORS. ...APPELLANT(S) VERSUS LORD NOTHBOOK AND ORS. ...RESPONDENT(S) O R D E R In view of difference of opinions and the distinguishing judgments (Hon'ble R. Banumathi, J. allowed the appeal and Hon'ble Indira Banerjee, J. dismissed the appeal), the matter be placed before Hon'ble the Chief Justice of India for referring the matter to the Larger Bench.