STATE OF RAJASTHAN & Ors. v. LORD NORTHBOOK & Ors.

Judgment

Doctrine of escheat postulates that where an individual dies intestate and does not leave behind an heir qualified to succeed to the property, the property devolves on the Government – Absence of any heir is pre- condition for initiation of the proceedings for escheating of the property to the Government – In the present case, when the agnates/ other persons claiming right in the estate withdrew their objections, naturally they accepted the claim/right of the Trust, which claims through the Will – Inference has to be drawn that they have no right of claim in the properties– Further, when the appeals were pending before the Delhi High Court and the Board of Revenue involving disputed questions, the High Court ought to have directed the parties to avail efficacious alternative remedy – High Court erred in quashing the three communications and directing the State to hand 844 STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 845 over the possession of the properties to the respondents – Further, due procedure was followed as per the Escheats Act – State of Rajasthan right in treating the property as ‘bona vacantia’ and initiating proceedings under the Escheats Act – Per Banerjee, J. (Dissenting) : Doctrine of escheats postulates that where an individual dies intestate and does not leave behind any heir qualified to succeed to the property, the property devolves on the Government – An abandoned property is a property for which no claim has been made for a substantially long period, such as to raise the presumption that the property is abandoned – In the present case, there were claimants who objected to the grant of probate – Even though they withdrew the objections, that would not make any difference to their status as agates/cognates of the deceased testator – Further, judgment dismissing the probate petition is of no consequence – If a will fails, the property has to be treated as intestate, devolving upon the natural heirs in accordance with the applicable laws of succession – Dismissal of the probate case might mean that the Trust cannot lay claim to the properties but, that does not make the properties escheated properties– Unless there were complete failure of heirs, the Escheats would not be attracted – Further, 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 – Communications impugned were issued without any finding of complete failure of heirs – Constitution of India – Arts. 226, 296 – Hindu Succession Act, 1956 – ss.3(a), (c), 8-13, 29 & 30 – Indian Succession Act, 1925– ss.195, 276 – Doctrines – Will. Constitution of India – Art.226 – Existence of alternative remedy – Entertainment of writ petition – Testator died in 1987 without any legal heirs, leaving valuable properties situated in Khetri, Jhunjhunu, Rajasthan – Before his death, he executed Will, bequeathing his properties to a Trust – Probate petition filed by the Trustees before the Delhi High Court – Dismissed – Appeal pending before the Division Bench – Writ petition filed by the respondents challenging the taking over possession of the properties by the Tehsildar – Further, the Collector rejected the claims of the Trust based on Will and also of the agnates – Appeal pending before the Board of Revenue – Thereafter, writ petition allowed – Held: Per A B C D E F G H 846 SUPREME COURT REPORTS [2019] 11 S.C.R. Banumathi, J. When the appeals were pending before the Delhi High Court and before the Board of Revenue involving disputed questions, the High Court ought to have directed the parties to avail efficacious alternative remedy – Per Banerjee, J. (Dissenting) High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition– Remedy of appeal availed by the Trustees was against the order of the Collector passed in 2016 almost two decades after the writ petition was filed in 1987 – Supervening circumstance of the order of the Collector and the appeal therefrom, would not justify the dismissal of the writ petition on the ground of existence of alternative remedy – High Court rightly allowed the writ petition. Rajasthan Escheats Regulation Act, 1956 – Scope and ambit of – Explained. (Per Banumathi, J.) Rajasthan Escheats Regulation Act, 1956 – ss.4, 6 – Compliance of – Discussed. (Per Banumathi, J.) Doctrines – Doctrine of escheats – Claim of escheat – Burden of proof – Held : Doctrine of escheat recognises State as paramount sovereign, in a clear case of failure of heirs – When a claim of escheat is put forward by the Government, onus to establish that a property is bona vacantia is on the Government – Burden of proof is heavy. (Per Banerjee, J.) Constitution of India – Art.296 – Power under – Discussed – Rajasthan Escheats Regulation Act, 1956. (Per Banerjee, J.) Words & Expressions – ‘Escheat’, ‘abandoned property’, ‘bona vacantia’ – Meaning and usage of – Discussed. (Per Banerjee, J.) Directing the matter to be placed before Hon’ble the Chief Justice of India for referring the matter to the Larger Bench, the Court HELD: PER R. BANUMATHI, J.:

1.1 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 A B C D E F G H STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 847 Succession Act, 1956 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. 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. 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. [Paras 19, 20 and 27][869-H; 870-A, C-D; 874-E-F]

1.2 Once the decision of the High Court of Delhi in the probate case has gone against the Trust, the Trust 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 did not keep in view. 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. [Paras 32, 33][876-E-F; 877-A]

1.3 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 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. The so called agnates or cognates cannot adopt double stand i.e. one claiming right in themselves and another allowing Khetri Trust to claim A B C D E F G H 848 SUPREME COURT REPORTS [2019] 11 S.C.R. through the Will. The respondents no.8 and 9 and respondent No.6 have not produced any document showing their status as agnates nor initiated any proceeding for declaration of their status. 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. The Sub-Divisional Officer, Khetri has sent a report dated 16.02.1987 to the District Collector, Jhunjhunu that the deceased 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. [Paras 35-37][878-C-E, G-H; 879-A]

1.4 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 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 the deceased and on finding about the absence of legal heirs, the authorities satisfied themselves that the properties are bona vacantia. 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. 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 A B C D E F G H STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 849 to 8 as cognates/agnates of the deceased, State of Rajasthan cannot be faulted for initiating action under the Escheats Act, 1956 treating the properties of the deceased as lawaris for want of heir or successor or as bona vacantia. Moreover, it is not the case of the respondents No.4 to 8 that they represent all the agnates. No claimant came forward before the Tehsildar; only the person 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. [Paras 38, 39][879-H; 880-A-F]

1.5 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”. 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. Considering the scheme of the Act, in particular, Section 4, provides that when the Tehsildar receives 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 A B C D E F G H 850 SUPREME COURT REPORTS [2019] 11 S.C.R. 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. [Paras 40-42][880-G-H; 881-A, C-H; 882-A]

1.6 The provisions of Section 4 of the Rajasthan Escheats Regulation Act have been substantially complied with. The 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. 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 the deceased; 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 has been substantially complied with. [Paras 44, 45][882-E-F; 883-D-E]

1.7 When the appeals were pending before the Delhi High Court and before the Board of Revenue involving disputed questions, the High Court ought to have directed the parties to avail efficacious alternative remedy. The High Court 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 A B C D E F G H STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 851 to hand over the possession of the properties to the respondents. 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. 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 the deceased 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 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, A B C D E F G H 852 SUPREME COURT REPORTS [2019] 11 S.C.R.

22.07.1987 and 03.08.1987. The High Court ought to have directed the parties to work out the remedy before the competent court/authority. [Paras 50-52][885-G-H; 886-A-H; 887-AB]

1.9. Conclusion:- (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 the deceased 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 the deceased and before initiation of proceedings under the Escheats Act, the authorities satisfied itself as to “failure of heirs” of the deceased 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 the deceased 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 the deceased 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. (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/ A B C D E F G H STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 853 orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The impugned order of the High Court in Writ Petition No.2713 of 1987 is set aside 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? Whether Khetri Trust has a right to claim the properties of the deceased 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. [Paras 53, 54][887-C-H; 888-A-H] Bombay Dyeing and Manufacturing Co., Ltd. v. State of Bombay and Others AIR 1958 SC 328 : [1958] SCR 1122; State of Bihar v. Radha Krishna Singh and Others (1983) 3 SCC 118 : [1983] 2 SCR 808; Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust Through Velji Devshi Patel v. Collector, Haridwar and Others (2017) 16 SCC 418 : [2017] 9 SCR 766; State of Punjab v. Balwant Singh and Others 1992 Supp. (3) SCC 108 : [1991] 1 Suppl. SCR 458; Peirce Leslie and Co. Ltd. v. Violet Ouchterlong Wapshare AIR 1969 SC 843 : [1969] 3 SCR 203; State of Bihar v. Radha Krishna Singh Ors. (1983) 3 SCC 118 : [1983] 2 SCR 808; Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107 – referred to. A B C D E F G H 854 SUPREME COURT REPORTS [2019] 11 S.C.R. A PER INDIRA BANERJEE, J. (DISSENTING): HELD: 1.1 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. 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. 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. 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. [Paras 16-19] [891-G-H; 892-A-B]

1.2 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. Section 4(1) of the Escheats Act provides: 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”. 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 to be understood in the sense in which they have been used in Article 296 of the Constitution. 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. [Paras 20-22][892-C, G-H; 893-A, E]

1.3 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. B C D E F G H STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 855 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. 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. 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. [Paras 23, 25, 28 and 29][893-E-F; 894-A, D-E]

1.4 If during an enquiry to ascertain whether property was abandoned or not, any claim was made, the proceedings had to be dropped. 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 thereafter initiate escheat proceedings. 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. There would have to be total and absolute failure of heirs. 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. 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. 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. 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 A B C D E F G H 856 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H 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. 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. 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. 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. Even though the Probate case has gone against the trustees, the appeal was and is still pending before the Division Bench. It is true that the Khetri Trust can claim right over the property in terms of the will, only if it succeeds in the appeal pending in Delhi High Court. This, did not denude the trustees of the locus standi to pursue the writ petition challenging the initiation of proceedings under the Escheats Act. The threshold requirements laid down by Supreme 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 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. [Paras 31-33, 36-42 and 44][894-G; 895-A-B, E-H; 896-A-E]

1.5 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 STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 857 pending. However, no adverse inference could have been drawn by reason of withdrawal of the objections of the agnates and/or cognates of the deceased. The inter se disputes, if any, between the agnates and/or cognates of the deceased and the legatees under his Will, are irrelevant for the purpose of escheat proceedings. 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. 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. 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 the deceased were in the possession of the Trust through the Manager. The mere issuance of public notice by the Tehsildar, calling upon persons claiming interest or right in the properties of the deceased to appear in his office with documents, failing which it would be presumed that the Khetri house and other properties of the deceased were lawaris, does not absolve the Tehsildar of his obligation to enquire into whether there were any legal heirs. 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 the deceased under the Hindu Succession Act. 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, A B C D E F G H 858 SUPREME COURT REPORTS [2019] 11 S.C.R. fraudulent or created by exercise of undue influence. 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. [Paras 49-57][901-A-H; 902-A-B]

1.6 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. 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. 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. [Paras 67, 68 and 70][904-B-C, F]

1.7 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. 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 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. 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 A B C D E F G H STATE OF RAJASTHAN AND ORS. v. LORD NORTHBOOK AND ORS 859 after the writ petition had been filed. The supervening circumstance of the order of the Collector and the appeal therefrom, would not justify the dismissal of the writ petition on the ground of existence of alternative remedy. 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. 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. The High Court has rightly allowed the writ petition. This appeal is liable to be dismissed. [Paras 71-75, 78][904-G-H; 905-A-E; 906-D-E] 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. Divya Pandey Referred to larger bench. A B C D E F G H