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

A withdrawn their objections in the probate petition and dismissal of the probate petition and the appeals pending before the Delhi High Court and appeal pending before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.

51Copy pinpoint51. Under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions; one of which is an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in three instances:- (i) where writ petition is filed for enforcement of any of the fundamental rights; (ii) where there is a violation of the fundamental right or principles of natural justice; and (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged; [vide Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others(2003) 2 SCC 107].

52Copy pinpoint52. 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 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 H

STATE OF RAJASTHAN AND ORS. 887 v. LORD NORTHBOOK AND ORS. [R. BANUMATHI, J.]

the very foundation of the order passed by the District Collector which A 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. B The High Court, in my considered view, ought to have directed the parties to work out the remedy before the competent court/authority.

53Copy pinpoint53. 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 C 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 D making any claim in the properties of Sh. Raja Sardar Singh till they establish their right in a court of law. (iii) The provisions of the Escheats Act, 1956 was initiated only after enquiring about the legal heirs of Sh. Raja Sardar Singh and before initiation of proceedings under the Escheats Act, E 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. F (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. G (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.

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A (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, B exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. C (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.

54Copy pinpoint54. 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 E 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 F 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? G 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. H

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AND ORS.

INDIRA BANERJEE, J. A 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 17.11.2016 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 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 District Name of the property village & township D 1 Khetri House, 5 Sardar Patel Road Delhi New Delhi 2 Hotel Khetri House Jaipur Jaipur city 3 Kothi Sukh Mahal Jhunjhunu Khetri E 4 Kothi Jai Niwas Jhunjhunu Khetri 5 Kothi Amar Hall Jhunjhunu Khetri 6 Nizamat Tehsil Building Jhunjhunu Khetri F

7 Ajit Niwas Bagh Farm Jhunjhunu Khetri 8 Record Room Jhunjhunu Khetri G 9 Haveli Prohitji Wali Jhunjhunu Khetri 10 Dera Brijlalji Wali Jhunjhunu Khetri 11 Farrash Khana Jhunjhunu Khetri 12 Chabutra inside Town Jhunjhunu Khetri H

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A 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 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 D 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 E 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 F 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.

G 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.

10. One Arjun Singh, father of the respondent No.8, claiming to be an agnate of the deceased, and others filed objections opposing the H

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AND ORS. [INDIRA BANERJEE, J.]

grant of probate of the Will executed by Raja Bahadur. A

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 B 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 C 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 D 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 compliance report dated 3.8.1987 submitted by the Tehsildar to the Collector. On E 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 H

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A 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.

B 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. E (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: F 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 G 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 enacted in terms of Article 296 of the Constitution, the expressions are H

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AND ORS. [INDIRA BANERJEE, J.]

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

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 F property is “bona vacantia”. In Bombay Dyeing Manufacturing Co. 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”, G 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.

1 AIR 1958 SC 328 H

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A 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 LCheld “Escheat B 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.

C 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, 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 D 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. E

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.

F 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. G

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

2 H A-G of Ontario v Mercer (1883) 8 App Cas 767 at 772

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AND ORS. [INDIRA BANERJEE, J.]

Court for final determination as to the nature of the property, and 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. C

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. D 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 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. E

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

3 (2017) 16 SCC 418 4 (1983) 3 SCC 118 H

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A 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 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 D 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 E 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 F (supra), the onus to establish that a property is bona vacantia is on the 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 G proceedings under the Escheats Act. The authorities would have to be satisfied that the properties had been abandoned and that there were no known claimants to the said properties. The purpose of the legislation is to conserve abandoned property and safeguard the property for the benefit of the rightful claimant who may come later. H

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45. Mr. Paras Kuhad, learned senior counsel appearing on behalf A 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. B “(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 C 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 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:- H

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A “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 (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

C (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 aremore widows than one, all the widows together, shall take one share. F 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 G 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 H

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son shall be so made that his widow (or widows together) A 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 B 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 C 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:— D Rule 1.—Of two heirs, the one who has fewer or no degrees of 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. E 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 H

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A 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. B 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 any- thing 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.”

E 47. The Expression “agnate” and “cognate” are defined in Section 3(a) and 3(c) respectively of the Hindu Succession Act to mean:- “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: F 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 G 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. H

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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’ 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 D 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. E

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. F

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 to enquire into whether G there were any legal heirs.

55Copy pinpoint55. 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 H

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A their claim to be heirs of Raja Bahadur under the Hindu Succession Act.

56Copy pinpoint56. 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.

57Copy pinpoint57. 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.

58Copy pinpoint58. 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.

59Copy pinpoint59. 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.

60Copy pinpoint60. 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 G 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.”

61Copy pinpoint61. The condition precedent for initiation of proceedings under H

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

62Copy pinpoint62. Apart from the fact that the proceedings could not be initiated 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.

63Copy pinpoint63. 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. E

64Copy pinpoint64. 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. F

65Copy pinpoint65. In Calcutta Discount Company vs. ITO, Companies District 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 G challenge formation of the opinion in a writ proceeding on such grounds as are available on this count.

66Copy pinpoint66. 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 H

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A 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.

67Copy pinpoint67. It is reiterated at the cost of repition that the condition precedent for exercise of jurisdiction is the existence of the jurisdictional fact of B 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.

68Copy pinpoint68. Where the jurisdiction of an authority depends upon a preliminary finding of fact, the High Court is entitled, in an application under Article 226, to determine upon its own independent judgment, whether or not that finding is correct, 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 D SC 1621.

69Copy pinpoint69. 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.

70Copy pinpoint70. 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.

71Copy pinpoint71. 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. G

72Copy pinpoint72. The power of the High Court to issue prerogative writs is wide. The Constitution does not place any limitation on such power. However, the Courts have, through judicial pronouncements, evolved self imposed restrictions on the exercise of power by the writ Court. When an efficacious alternative remedy is available, the High Court H

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does not normally exercise jurisdiction. However, when a writ petition A 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.

73Copy pinpoint73. 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 B 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.

74Copy pinpoint74. As noted by my esteemed sister, the writ petition filed in 1987 C 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.

75Copy pinpoint75. In deciding the question of maintainability of a writ petition in view of existence of alternative remedy, this Court cannot forget that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature. The High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. The existence or even invocation of alternative remedy has nothing to do with the jurisdiction of the writ court. Even if a party has already availed of the alternative remedy by invoking the appellate jurisdiction, as also the jurisdiction under Article 226, the party could elect to prosecute proceedings under Article 226 for the same relief.

76Copy pinpoint76. 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.

77Copy pinpoint77. Moreover, as held by this Court in Municipal Council, Khurai and Anr. vs. Kamal Kumar & Anr. reported in AIR 1965 SC 1321, H

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A 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 B matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or 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 C 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 D late in the day to contend that the writ petitioner should avail the alternative remedy.

78Copy pinpoint78. The High Court has, in my view, rightly allowed the writ petition. This appeal is, in my view, liable to be dismissed. ORDER E 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.

F Divya Pandey Referred to larger bench.