Full Text
CIVIL APPEAL No. 3878 OF 2009
KUTCHI LAL RAMESHWAR ASHRAM
TRUST EVAM ANNA KSHETRA
TRUST THR. VELJI DEVSHI PATEL ....APPELLANT
JUDGMENT
1 This appeal has arisen from a judgment rendered on 15 May 2007 by a Division Bench of the High Court of Uttarakhand at Nainital. Finding no substance in the writ petition filed under Article 226 of the Constitution, the High Court affirmed the order passed by the Collector, Haridwar on 12 May 2003 holding that the property in dispute stands vested in the government under Section 29 of the Hindu Succession Act, 1956. This finding has been premised on the basis that there exists no heir to succeed to the property following the death of Mohan Lal.
2 The petitioner claims to be a public trust registered under the Bombay Public Trusts Act, 1950. The Trust claims to have a vast amount of property at Haridwar which is being used for charitable purposes including (i) arranging for the stay of pilgrims and saints who visit Haridwar and providing food and other facilities to them; and (ii) performing and organizing religious functions. The petitioner conducts a Sanskrit Vidyalaya as well as a dispensary.
3 Swamy Udhav Das Ji Maharaj was visually challenged. On 28 November 1955, he is stated to have purchased land admeasuring two bighas and fifty khewat at Haridwar in the name of his chela, Mohan Lal. According to the petitioner, the Swamy founded the Kutchi Lal Rameshwar Ashram Trust. He is stated to have executed a will on 22 October 1956 nominating some individuals who would manage and administer his properties, including the property in question, after his lifetime. According to the petitioner, this was a second registered will executed by the Swamy since some of those who were nominated in an earlier registered will were not inclined to accept the responsibility.
4 On 13 January 1957, the Swamy died. The Trust is stated to have been registered on 11 November 1957. Among the objects of the Trust, are the following: “4. The main purpose for which the Ashram was established at Haridwar under the inspiration of Mahrajshri Odhavdasji has been to provide a centre and shelter for those Kutchi people in particular and others in general who go to the Holy Shrines at Haridwar, for the purposes of devotion and their peace of mind and the same shall continue to be the main objective and purposes of the Trust along with any other objective which might further the main object such as religious education prayers etc.
5. It was the cherished object of the revered Maharajshri Odhavdasji that the Ashram should provide both shelter and food to the deserving and this is being done within the limitation of the resources at the disposal of the Trust. Many people have expressed their desire to donate moneys for the purposes of running an “Anna Kshetra” as desired by their late Guru Maharaj.” According to the petitioner, all the movable and immovable properties were vested in the Trust. On 23 March 1958, an unregistered declaration is stated to have been executed by Mohan Lal stating that though the property was purchased in his name by the late Swamy, neither he nor his legal heirs would have any rights in the property. The whereabouts of Mohan Lal are not known since 1958.
5 On 10 July 2001, a suit[1] was instituted by the petitioner seeking an injunction against the third respondent (an individual by the name of Swamy Mahanand Awdhut Tatambri) described in these proceedings as: “Chela Swamy Brahmchari Ji Awdhut, Resident of Tatambri Ashram, Sapt Sarovar Road, Bhoopat Wala, Haridwar, Uttarakhand.” The suit for injunction appears to have been instituted on the ground that the third respondent was attempting to make a construction on some part of the property in dispute. A few months after the institution of the suit, the third respondent filed a complaint on 15 October 2001 before the Collector alleging that the property belonged to Mohan Lal. According to him, a Patta was executed on 28 November 1955 in favour of Mohan Lal by Govind Ram and Shiv Ram. According to the complaint, Mohan Lal had died and there being no legal heir, the property stands vested in the state government under Section 29 of the Hindu Succession Act 1958.
6 The Collector issued a notice to the petitioner following receipt of the complaint. A reply was filed before the Collector on 13 November 2001. The reply traces the acquisition of the property by the late Swamy in the name of his disciple Mohan Lal on 28 November 1955 and adverted to the will executed and registered by the Swamy on 22 November 1956. The reply relied upon the declaration by Mohan Lal on 23 March 1958 stating that he had no right or interest in the property. The reply adverted to the construction carried upon the property by the Kutchi Lal Rameshwar Ashram Trust after plans were duly sanctioned by Haridwar Development Authority. The reply also referred to the fact that the property has been assessed to municipal taxes in the name of the Trust. The Trust claims to have built upon the property and to be in occupation without interruption for forty-five years. Moreover, it was stated that a suit before the Civil Judge, Haridwar was instituted by the Trust since Swamy Mahanand Awdhut Tatambri who had recently purchased the adjoining property had carried out certain unauthorized constructions that affected the rights of the Trust. The petitioner claimed that the complaint against it was instituted before the Collector as a reprisal for the dispute with the adjoining owner which had led to the institution of a suit before the Civil Court.
7 On 12 May 2003, the Collector at Haridwar adjudicated upon the notice to show cause issued by him. The Collector held that a patta of the property was secured by Mohan Lal on 15 July 1955 and on 28 November 1955. According to the Collector, the Trust had not submitted any documentary evidence from which it could be deduced that the property had been purchased in the name of Mohan Lal from the funds of Swamy Udhav Das. According to the Collector, the alleged admission deed of 23 March 1958 by Mohan Lal could not be relied upon, since he was shown to be a resident of Reha Kuch (presently Chandrakela) whereas the person in whose favour the patta had been executed was a resident of village Ishwar Nagar. According to the Collector, the Swamy died before 11 November 1957. The Trust, in the view of the Collector, had failed to submit evidence in respect of the heirs of Mohan Lal. The Collector proceeded to draw an inference of the death of Mohan Lal since he was not heard of for seven years. On this basis, the Collector arrived at the conclusion that the property vested in the State Government by the operation of law. The City Magistrate at Haridwar was directed to take immediate action for taking over the possession of the property.
8 Aggrieved by the order of the Collector, Haridwar, which held that the property had vested in the state government by the operation of Section 29 of the Hindu Succession Act, 1956, and directing the City Magistrate to take over possession, the petitioner challenged the decision in a writ petition under Article 226 of the Constitution before the High Court of Uttarakhand. The Trust claimed to be in the management of the property for over forty-five years and submitted that the only manner in which action adverse to it could have been taken was on the basis of a title action pursued through the Administrator General or through a Civil Court. The Collector, in the submission of the Trust, could not assume the power to decide a question of title in the manner in which he had purported to do.
9 Certain developments took place after the Trust instituted writ proceedings before the High Court of Uttarakhand in May 2003. The third respondent had filed an appeal against an order of interim injunction passed in favour of the Trust in the suit instituted by it in the Civil Court. The appeal was dismissed by the Additional District Judge, Haridwar on 24 December 2003. On 9 May 2005, a Division Bench of the High Court admitted the writ petition of the trust challenging the order of the Collector. The High Court stayed the order on the ground, prima facie, that the Collector had no jurisdiction to do so. On 10 April 2007, a writ petition filed by the trust was dismissed (erroneously according to the petitioner on the basis of the facts of another case). The petitioner filed a review petition. The review was allowed by a Division Bench of the High Court on 15 May 2007 and the earlier order was recalled. Eventually, it was by its Judgment and Order dated 15 May 2007 that the Division Bench upheld the decision of the Collector.
10 The High Court held that the deed of acceptance alleged to have been executed by Mohan Lal on 23 March 1958 is not a registered document. Moreover, it has been stated that the executor of the deed of acceptance appears to be a person different from the person by the name of Mohan Lal who was the owner of the disputed land. According to the High Court, there was nothing to indicate that Mohan Lal had died prior to the preparation of the Deed of Trust on 11 November 1957. The High Court further held that the land was purchased by Mohan Lal in whose favour the original pattas were executed but there was no evidence to indicate that the funds were provided by the late Swamy. The findings of the High Court are in the following terms:
(i) The Collector has acted without jurisdiction, in assuming the powers of the civil court and adjudicating on the vesting of the property in the state by escheat under Section 29 of the Hindu Succession Act, 1956;
(ii) In view of the clear dispute, involving the setting up of rival titles – the government claiming under Section 29 and the Trust setting up a contrary title, it was not open to the Collector to act as a judge in his own cause in his capacity as a representative of the state government;
(iii) Where a dispute of title or in regard to the absence of legal heirs within the meaning of Section 29 arises, it is only a civil court which can exercise jurisdiction; and
(iv) Assuming that the property belonged to Mohan Lal, the Collector ought not to have proceeded in the matter without due notice to him and hence the inference that Mohan Lal was dead, as not having been heard of for seven years, is fallacious.
13 On the other hand, it has been submitted on behalf of the state government that the order passed by the Collector constitutes a valid exercise of jurisdiction. It was urged that the Collector had justifiably come to the conclusion that Mohan Lal had not been succeeded by any heir, upon which the property must be regarded as having vested in the state under Section 29 of the Hindu Succession Act, 1956. It may be noted that in the counter affidavit which has been filed in these proceedings, the first and second respondents have adverted to the source of power of the Collector being traceable to Section 29 of the Hindu Succession Act, 1956, besides which reliance has been placed on Section 167 (2) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in its application to the State of Uttarakhand.
14 Shri M N Rao, learned Senior Counsel appearing on behalf of the third respondent has adopted the submission which was urged before the Collector by his client as complainant. Learned Senior Counsel however urged that it was for the Collector and the state to sustain the order which has been passed.
15 Before we deal with the merits of the rival contentions, an issue needs to be addressed at the threshold. Initially, on 16 July 2007, notice was issued “confined to the question as to whether the Collector has power to pass an order under Section 29 of Hindu Succession Act, 1956 in view of the provisions of the Administrators-General Act, 1963”. Leave was granted on 12 May 2009. Relying upon the initial order, which confined the notice to a specific issue, learned Counsel for the state submitted that the grant of leave subsequently should not be regarded as having expanded the scope of the controversy to all the issues raised in the appeal. Hence, the submission is that the only issue which ought to be addressed is that which was adverted to when notice was issued.
16 While addressing the preliminary issue, it would, in our view, be inappropriate and, perhaps even unsafe, to lay down a broad generalisation. The constitutional jurisdiction which is conferred upon this Court has its basis in the advancement of justice. The power of the court to render justice should not be constricted by a narrow approach to its mandate. In the context of a criminal case, a Bench of two Judges of this Court in Yomeshbhai Pranshankar Bhatt v State of Gujarat[2] considered a situation where a conviction under Section 302 of the Penal Code had been affirmed by the High Court. Initially, this Court issued notice confined only to the question as to whether the accused was guilty of the commission of an offence under any of the parts of Section 304 and not under Section 302. The issue was whether the ambit of the appeal was confined to what was stated in the notice initially issued. In this context, the Court adverted to the Supreme Court Rules, 1966 which have been framed under Article 145 of the Constitution. Order XLVII Rule 6 of the rules of procedure of this Court provides as follows:
Article 142 of the Constitution enables this Court, in the exercise of its jurisdiction, to pass such decrees and make such orders as is necessary for doing complete justice in any case or matter pending before it. After adverting to Article 142, this Court held as follows:
Hence, the Court observed that at the time of final hearing, it would not be precluded from considering the controversy “in its entire perspective” and while doing so, it is not “inhibited by any observation, any order made at the time of issuing the notice”. A similar view was taken in an earlier decision in State of Uttaranchal v Alok Sharma[3]. In Indian Bank v Godhara Nagrik Cooperative Credit Society
Limited[4], a Bench of two Judges of this Court held that though a limited notice was issued initially, leave having been granted thereafter, “all the contentions of the parties are now open”.
17 We respectfully reiterate and adopt this view which is based on a sagacious approach to the constitutional powers that are conferred upon the Court. Article 142 embodies the fundamental principle that the jurisdiction of the court is to render complete justice and as an incident of it, the court may pass such decrees or orders as it considers fit. When the court initially issues a limited notice but subsequently grants leave, the scope of the appeal does not raise a matter of jurisdiction but of judicial discretion. Since it constitutes a matter of discretion and not of jurisdiction, the guiding principle has to be the advancement of substantial justice.
18 Section 29 of the Hindu Succession Act, 1956 has been invoked by the Collector. Section 29 provides as follows:
Section 29 embodies the principle of escheat. The doctrine of escheat postulates that where an individual dies intestate and does not leave behind an heir who is qualified to succeed to the property, the property devolves on government. Though the property devolves on government in such an eventuality, yet the government takes it subject to all its obligations and liabilities. The state in other words does not take the property “as a rival or preferential heir of the deceased but as the lord paramount of the whole soil of the country”, as held in State of Punjab v Balwant Singh[5]. This principle from Halsbury’s Laws of England[6] was adopted by this Court while explaining the ambit of Section 29. Section 29 comes into operation only on there being a failure of heirs. Failure means a total absence of any heir to the person dying intestate. When a question of escheat arises, the onus rests heavily on the person who asserts the absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case. The law does not readily accept such a consequence. In State of Bihar v Radha Krishna Singh[7], a Bench of three Judges of this Court formulated the principle in the following observations: “272. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs-respondents. Even if they succeed in showing that the plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs' claim would lead to the irresistible inference that there is no other heir who could at any time come forward to claim the properties.” (id at p. 216) Mulla’s Hindu Law[8] succinctly summarises the position thus: “Where the Crown or Government claims by escheat, the onus 5 (1992) Suppl (3) SCC 108 6 4th Ed. Vol 17, para 1439
8 Twenty – second edition, pp. 1260-1261 lies on it to show that the owner of the estate died without heirs. An estate taken by escheat is subject to the trusts, charges and legal obligations (if any) previously affecting the estate, e.g., mortgages and other encumbrances. This section rules that in case of failure of all the heirs recognised under the Act, on the death of the owner intestate, his or her property devolves on the Government. The Government takes the property subject to all legal obligations and liabilities to which an heir would have been subject if the property had devolved upon the heir by succession. The word ‘failure’ used in the section is very clear and indicative of the fact that there must be a absence of heirs of the intestate.” In Rambir Das v Kalyan Das[9] a Bench of two learned Judges of this Court dealt with a case of Shebaitship. Citing the authority of Justice B K Mukherjea’s celebrated Tagore Law Lectures with approval, this Court took note of the position of law elucidated in the lectures: “As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in the founder, it follows the line of founder's heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder.” On the question of escheat, Justice B K Mukherjea observes thus: “As there is always an ultimate reversion to the founder or his heirs, in case the line of Shebaits is extinct, strictly speaking no question of escheat arises so far as the devolution of shebaitship is concerned. But cases may be imagined where the founder also has left no heirs, and in such cases the founder's properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a Shebait for the debutter property. It cannot be said that the State receiving a dedicated property by escheat can put an end to the trust and treat it as secular property.” In other words, even in a situation where a founder or his line of heirs is extinct, and the properties escheat to the state, the state which receives a dedicated property is subject to the trust and cannot treat it in the manner of a secular property. In fact, we may note, Section 29 expressly stipulates that the state “shall take the property subject to all the obligations and liabilities to which an heir would have been subject.”
19 In deciding this case, this Court must also bear in mind the settled principle that unless the founder of a math or religious institution has laid down the principle governing succession to the endowment, succession is regulated by the custom or usage of the institution. This principle was enunciated over six decades ago by this Court in Mahant Sital Das v Sant Ram10, rendered by Justice B K Mukherjea, speaking for a Bench of four judges:
Section 9 empowers the Administrator General to apply to the High Court for the administration of estates in specified circumstances: “9. Right of Administrator-General to apply for administration of estates:- (1) If- (a) any person has died leaving within any State assets exceeding rupees ten lakhs in value, and (b) (whether the obtaining of probate of his will or letters of administration to his estate is or is not obligatory), no person to whom any court would have jurisdiction to commit administration of such assets has, within one month after his death, applied in such State for such probate, or letters of administration, and (c) (in cases where the obtaining of such probate or letters of administration is not obligatory under the provisions of the Indian Succession Act, 1925), no person has taken other proceedings for the protection of the estate, the Administrator-General of the State in which such assets are, may, subject to any rules made by the State Government, within a reasonable time after he has had notice of the death of such person, and of his having left such assets, take such proceedings as may be necessary to obtain from the High Court letters of administration of the estate of such person. (2) The Administrator-General shall not take proceedings under this section unless he is satisfied, that there is apprehension of misappropriation, deterioration or waste of such assets if such proceedings are not taken by him or that such proceedings are otherwise necessary for the protection of the assets.” The Administrator General is statutorily empowered to move the High Court to protect the assets or estate of a deceased from dissipation. Section 10 empowers the Administrator General to move the High Court to collect and take possession of the assets of a deceased person where there is imminent danger of misappropriation, deterioration or waste of assets:
Under Section 11, the High Court is empowered to grant probate or letters of administration to any other person who appears and establishes his claim:
Section 12 postulates those eventualities in which administration can be granted to the Administrator General: “12. Grant of administration to Administrator-General in certain cases:- If, in the course of proceedings to obtain letters of administration under the provisions of Section 9 or Section 10, and within such period as to the High Court seems reasonable, no person appears and establishes his claim to probate of a will, or to a grant of letters of administration as next-of kin of the deceased, or satisfies the High Court that he has taken and is prosecuting with due diligence other proceedings for the protection of the estate, the case being one in which the obtaining of such probate or letters of administration is not obligatory under the provisions of the Indian Succession Act, 1925 (39 of 1925), and the High Court is satisfied that there is apprehension of misappropriation, deterioration, or waste of the assets or that the grant of letters of administration in such proceedings is otherwise necessary for the protection of the assets; or if a person who has established his claim to a grant of letters of administration as next-of-kin of the deceased fails to give such security as may be required of him by law; the High Court may grant letters of administration to the Administrator-General.” Under Section 14, the grant of letters of administration to the Administrator General can be revoked where an executor or next of kin of a deceased establishes a claim to probate or letters of administration in preference to the Administrator General:
The effect of the grant of probate or letters of administration is provided by Section 20(1) which reads thus: “20. Effect of probate or letters granted to Administrator-General:- (1) Probate or letters of administration granted by the High Court to the Administrator-General of any State shall have effect over all the assets of the deceased throughout India and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding such assets, and shall afford full indemnity to all debtors paying their debts and all persons delivering up such assets to such Administrator-General.” 23 The above provisions enacted by Parliament define the ambit of the powers vested in the Administrator General and the circumstances in which he can move the High Court. Essentially, the Administrator General steps in to protect the estate of a person who has died and no person to whom any court would have jurisdiction to commit the administration of the estate has come forth. The Administrator General is authorised by law to move the High Court to obtain letters of administration. Where the property or estate of the deceased is in imminent danger, the Administrator General can be empowered by the High Court to take immediate steps to safeguard the estate. While permitting the Administrator General to apply to the High Court for the grant of letters of administration, the law allows any other individual to appear and establish a claim before the High Court. Where a claim to probate or letters of administration in preference to the Administrator General is established, an order of revocation can be passed by the High Court. Such adjudicatory functions are entrusted to the High Court. The Administrator General, as a public official, is conferred with duties and obligations to secure and safeguard the administration of the estate left behind by a deceased individual in the circumstances adverted to in the statute. The legislation has not reserved a judicial power to the Administrator General. Parliament in its wisdom has made provisions to ensure that estates are not frittered away upon the death of persons who do not leave behind legal heirs, by allowing the Administrator General to invoke the jurisdiction of the High Court to safeguard such estates. The conferment of adjudicatory functions upon the High Court safeguards against an abuse of power and facilitates an adjudication of private claims.
24 In the present case, for the reasons indicated above, we have come to the conclusion that the Collector acted manifestly in excess of his jurisdiction and launched upon an adjudicatory exercise. This power was not vested in him. The counter affidavit filed in these proceedings relies upon the provisions of Sub-section 2 of Section 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in its application to the State of Uttarakhand. Sub- sections 1 and 2 of Section167 provide as follows:
25 The power conferred upon the Collector by Sub-section 2 of Section 167 can be exercised only in the circumstances set out in Sub-Section 1. In the present case, the provision was clearly not attracted.
26 For the above reasons, we allow the appeal and set aside the impugned judgment of the High Court dated 15 May 2007. In consequence, the Writ Petition filed by the Appellant is allowed and the order dated 12 May 2003 passed by the Collector is quashed and set aside.
27 The Civil Appeal is disposed of in the above terms. There shall be no order as to costs. ……........................................J [N V RAMANA]................................................J [Dr D Y CHANDRACHUD] New Delhi; September 22, 2017