Kerala High Court
State Of Kerala vs Shree Navanagar Sadavrat Trust on 8 December, 2015
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939
WA.No. 439 of 2017 () IN OP.12870/2002
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AGAINST THE JUDGMENT IN OP NO.12870/2002 of HIGH COURT OF
KERALA DATED 08-12-2015
APPELLANTS/RESPONDENTS 1-4 IN OP:
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1.STATE OF KERALA
THROUGH THE CHIEF SECRETARY,
THIRUVANANTHAPURAM 695001.
2.THE SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-6950013.
3.THE LAND REVENUE COMMISSIONER
THIRUVANANTHAPURAM-695001.
4.THE DISTRICT COLLECTOR
THIRUVANANTHAPURAM-695001.
BY SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL
RESPONDENT/PETITIONER IN OP:
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SHREE NAVANAGAR SADAVRAT TRUST
A PUBLIC CHARITABLE TRUST REGISTERED
UNDER THE PROVISIONS OF THE BOMABY
PUBLIC TRUST ACT, 1950,
HAVING ITS OFFICE IN MOCLJI JAITHA BUILDING 187,
PRINCESS STREET,
MUMBAI-400 002
REPRESENTED BY ITS TRUSTEE
RAJNIKANT CHANDRAKUMAR JAITHA.
R1 BY SR. ADV. SRI.JAYAPRAKASH SEN
SRI. M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
SRI.PAULOSE C. ABRAHAM
SRI.BHARAT DAMODAR
THIS WRIT APPEAL HAVING BEEN FINALY HEARD ON 23-06-
2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VPS
"C.R."
NAVANITI PRASAD SINGH, C.J. &
RAJA VIJAYARAGHAVAN V., J.
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W.A. No.439 OF 2017
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Dated this the 23rd day of June, 2017
JUDGMENT
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Navaniti Prasad Singh, C.J.
1.The State being aggrieved by the judgment and order dated 8.12.2015 passed in O.P.No.12870 of 2002, have filed this intra court appeal. The contesting respondent, upon notice, have appeared.
2.We have heard Sri.Ranjith Thampan, the learned Additional Advocate General and Sri.Jayaprakash Sen, learned Senior Counsel appearing for the party respondent at length and with their consent, disposing of this appeal at this stage itself.
3.Basic facts are not in dispute, though the legal effect thereof are contested. The matter arises out of a proceedings under the Kerala Escheats and Forfeitures W.A. 439/2017 2 Act, 1964 (hereinafter referred to as 'the Act' for short). Section 3, 4, 5 and 6 of Act 4 of 1964 reads as follows:
3. Escheats:-Where a person dies intestate and without leaving legal heirs, all his property shall be escheat and shall belong to the Government."
4. Preliminary enquiry.-Whenever the Collector receives information from any source that any person in possession of any movable or immovable property lying within his jurisdiction has died intestate and without legal heirs, he shall cause an inquiry to be made as to whether the deceased has died intestate and whether he has left any legal heirs.
5. Publication in the Gazette.-If, as a result of the inquiry under section 4, the Collector is satisfied that the deceased has died intestate and without legal heirs and that it is a prima facie case of escheat, he shall publish in the Gazette a notice calling upon all persons who may have any claim to the property of the deceased to appear before him and prefer their claims within six months from the date of publication of the notice.
6. Investigation and decision.-If any claim is preferred within the period fixed under section 5, the Collector shall investigate the claim and take in all evidence produced by the claimant. He shall decide the case after such inquiry as he deems fit to make, and issue notice of the decision to the parties concerned.
The decision of the collector shall be final, subject to the provisions of sections 7 and 11
4.It appears that there was a property measuring about 37 cents lying in the town of Trivandrum. On or about 3.10.1994, one Mr.Francis purporting to be a social W.A. 439/2017 3 worker, made an application to the District Collector, Trivandrum alleging that the owner of the said property had died without leaving legal heirs and as such, the Government should exercise the powers of escheat and take over the property.
5.Pursuant to the application so filed, the District Collector directed the Tahsildar to conduct an enquiry under Section 4 of the Act and submit a report. The Tahsildar made enquiries and submitted Ext.P13 report dated 19.1.1995 wherein the Tahsildar had clearly stated that the said property belonged to Ramaji, agent of M/s.Mulji Jetha & Company, Bombay. The Tahsildar further mentioned that the properties of M/s.Mulji Jetha & Company were handed over to a Trust by name Shree Navanagar Sadavarat Trust, whose trustees name were also given. In that it was also mentioned that one of the trustee was Smt.Velabhai Chaturbhuj, widow of Chaturbhuj Gordhandas. He also informed the District Collector that W.A. 439/2017 4 property tax, water charges and electricity charges are paid regularly by the Trust.
6.Notwithstanding the aforesaid report, on 16.8.1997, the District Collector, referring to the report of the Tahsildar as aforesaid held that, on enquiry it was revealed that the properties and the buildings therein was owned by M/s.Mulji Jetha & Company doing business at Mattancherry (Kochi) and Bombay and that the owners of the properties died intestate without legal heirs and that it is a prima facie case of escheat. This notification was also published in the official gazette of Kerala, Collector's Office and local newspapers.
7.It appears that the matter was contested by the original petitioner. But the District Collector by his order dated 2.9.1998 rejected all the objections and ordered for the property to vest in the Government by escheat. Being aggrieved by this order, the original petitioner filed O.P. No.1492 of 1998. But this Court relegated to the remedy W.A. 439/2017 5 of appeal as statutorily provided. The appeal was heard by the Land Revenue Commissioner, Trivandrum. While the matter was pending before the Land Revenue Commissioner, an affidavit was filed by Smt.Velabhai Chaturbhuj on 7.4.1999, which is Ext.P17 contending that she is the wife of Sri.Chaturbhuj Gordhandas, who had originally purchased the land showing himself to be the proprietor of M/s.Mulji Jetha & Company.
8.This affidavit is of some significance. It mentions two facts. Firstly, that she is the widow of Sri.Chaturbhuj Gordhandas and his sole heir and that she is the proprietor of M/s.Mulji Jetha & Company. She also says that her husband having purchased the property had dedicated it to public charitable trust i.e., Shree Navanagar Sadavarat Trust, of which she was also the trustee.
9. The Commissioner however held that the original petitioner failed to establish legal transfer of the property W.A. 439/2017 6 to Shree Navanagar Sadavarat Trust and dismissed the appeal. It may be mentioned that large number of other documents were also filed before the District Collector and the Land Revenue Commissioner in appeal. This order of the Revenue Commissioner is marked as Ext.P18 dated 8.10.1999. Challenging the order of the Commissioner of Land Revenue, appeal was preferred by the original petitioner before the Government. The Secretary (Revenue) after considering the contentions advanced, expressed doubt as regards certain findings arrived at by the District Collector which was confirmed by the Commissioner of Land Revenue and remanded back the matter to the Commissioner for fresh disposal in accordance with law. Against the said order, the original petitioner preferred O.P. No.352 of 2001. O.P. No.352 of 2001 was disposed of by this Court by Ext.P21 judgment dated 4.9.2001 directing the Government to take a decision in the matter thereby cancelling the order of W.A. 439/2017 7 remand.
10.Accordingly, the Revenue Secretary heard the original petitioner's appeal, but dismissed the appeal by order dated 15.2.2002 holding that the property belonged to M/s.Mulji Jetha & Company and was not the property of the original petitioner. Secondly it was also held that the "Company", a legal person, did not make any testamentary succession or leave any legal heir to inherit the property and thus the property was liable to be vested in the Government by escheat.
11.It is being aggrieved by the said decision of the Government, the original petitioner filed O.P. No.12870 of 2002. The learned single Judge after hearing the petition has allowed it by judgment dated 8.12.2015, whereby the orders passed by the District Collector, the Land Revenue Commissioner and the Secretary have been set aside with a direction to the State to restore peaceful vacant possession to the original petitioner. The State being W.A. 439/2017 8 aggrieved, has in this intra court appeal.
12.We have already quoted the provisions of the Act above. To being with, the first thing we must notice is that the jurisdiction of the State in the matter is governed by Section 3 of the Act, which clearly predicates that the property belongs to an individual who dies intestate and does not leave any legal heir. In absence of these conditions being fulfilled, State has no jurisdiction in the matter. Why we have referred to this is because there are very short answers as to the question whether the State has jurisdiction in the matter.
13.The original petitioner challenged the jurisdiction of the State in the matter. The State objected to the locus of the original petitioner to maintain the writ petition, then urging that even otherwise Section 11 of the Act provided a remedy by way of a civil suit to challenge the order. The original petition was not thus maintainable and lastly that on the facts, the property having been purchased by W.A. 439/2017 9 an individual was not shown to be validly transferred to Shree Navanagar Sadavarat Trust and the Trust having not satisfactorily proved that the property belonged to it, the property would vest in the State by escheat. These are absolutely the contentions raised before the learned single Judge and reiterated before us.
14.We would first start with the contention as raised by the State. The first contention we would deal with is the question of alternative remedy provided by Section 11 of the Act. No doubt, it is a remedy provided by the statute. But as is well settled that where the order has been passed by an authority wholly without jurisdiction, the question of alternative remedy does not arise. It is submitted that there were no facts to justify the assumption of jurisdiction. To the contrary, the enquiry report of the Tahsildar, which formed the basis of the order of the District Collector to assume jurisdiction and initiate proceedings, would itself show that the property W.A. 439/2017 10 belonged to the trust and all taxes were being paid by Shree Navanagar Sadavarat Trust and was being maintained by the Trust. If that be so, then where is the question of the property belonging to a person who died without heirs. But the District Collector having no other materials before him, accepted the report of the Tahsildar and still choose to assume jurisdiction which he lacks in the facts aforesaid. If this be correct, then the District Collector clearly acted without jurisdiction and that being so, the alternative remedy would be no bar in entertaining the original petition and the learned single Judge did no wrong in entertaining the original petition.
15.It is then submitted on behalf of the State that the documents produced by the original petitioner in the course of the lengthy proceedings could not establish that the property was purchased by Sri.Chaturbhuj Gordhandas as proprietor of M/s.Mulji Jetha & Company and was validly transferred to a charitable Trust, namely W.A. 439/2017 11 Shree Navanagar Sadavarat Trust. That having not been established, escheat follows.
16.In our view, this is misconceived for more than one reason. Firstly, we would like to point out what was said by the Apex Court in the case of State of Bihar and Others v. Sri.Radha Krishna Singh and Others (AIR 1983 SC 684) and in particular in paragraph 269 and 270 thereof.
"269. Before closing the colourful chapter of this historical case we would now like to deal with the last point which remains to be considered and that is the question of Escheat. So far as this question is concerned, M. M. Prasad, J. has rightly pointed out that as the State of Bihar did not enter the arena as a plaintiff to claim the properties by pleading that the late Maharaja had left no heir at all and, hence, the properties should vest in the State of Bihar, it would be difficult to hold that merely in the event of the failure of the plaintiffs' case the properties would vest in the State of Bihar.
270. 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 W.A. 439/2017 12 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."
17. From this, two things would be clear. Firstly, merely on failure of a party to show that he is a heir or a successor does not mean that the property would automatically vest in the State on the principles of escheat and secondly, that this jurisdiction creates heavy burden on the State itself to show the facts and determine the facts. The onus is not on any person who claims property.
18.Now, if we look to the facts, it is not in dispute that the property was purchased by Sri.Chaturbhuj Gordhandas being the proprietor of M/s.Mulji Jetha & Company. The case set up by the original petitioner was that the family had a trust, which was a duly registered trust since 1872. The trustees died in due course and though no new trustees were appointed, the trust properties were W.A. 439/2017 13 managed by the de facto trustee, Sri.Chaturbhuj Gordhandas himself. The de facto trustee had purchased the properties at Trivandrum in the year 1919 and 1940 respectively by Exhibit P2 and P3 sale deeds. In the year 1951 application was moved by the de facto trustee to the Advocate General of the erstwhile State of Bombay for appointment of new trustees. But then the Bombay Trustees Act, 1950 had come into force and the de facto trustee submitted application before the Charity Commissioner, Maharashtra on behalf of Shree Navanagar Sadavarat Trust for registration of the Trust as a public charity. On 9.10.1952 certificate of registration was issued. Subsequently, in the year 1953 a suit was also filed for removal of the defacto trustee and for appointment of the plaintiffs as new trustees. The de facto trustee, Chaturbhuj Gordhandas was plaintiff No.3 and his wife Velabai was the 2nd plaintiff in the said suit. The 2nd defendant was M/s Mooljee Jaitha and Company. The suit W.A. 439/2017 14 contained a schedule of properties of the trust. The suit was decreed as prayed for. There is no doubt that the property in question was not a part of the schedule. But, subsequently with leave of the court, this property was added to the schedule of the decree in the suit. This was in the year 1959. It appears that Sri.Chaturbhuj Gordhandas having died, his wife, who was already a trustee, her name was also brought on the register of public trust as maintained by the Charity Commissioner, as is evident from Ext.P23. Pursuant to the amendment of the decree on 12.1.1959, the properties at Trivandrum was also added to the register under Section 26 of the Bombay Trust Act, 1950.
19.The above narration of events clearly evinces the following aspects. Firstly, the property was purchased by Sri.Chaturbhuj Gordhandas being proprietor of M/s.Mulji Jetha & Company. The Commissioner of Land Revenue as well as the Secretary has proceeded on the basis that as W.A. 439/2017 15 per the records available, there are no materials to evidence the valid transfer of the property to Shree Navanagar Sadavarat Trust. If that be so, before exercising the powers of escheat under Act 4 of 1964, they ought to have arrived at a finding that Sri.Chaturbhuj Gordhandas had died intestate and without legal heirs. Only then they could have exercised the powers of escheat. But on record was the affidavit of Smt.Velabhai, widow of the said Sri.Chaturbhuj Gordhandas, pointing out that she, after the death of the her husband, was the proprietor of M/s.Mulji Jetha & Company. This itself was enough to take the wind away from the sail of the State. There being a heir to the property, the State lost its jurisdiction in the matter. But apparently the authority proceeded on the ground that a plea was taken that the property belonged to Shree Navanagar Sadavarat Trust and the party could not prove legal transfer to the said trust of the said properties and W.A. 439/2017 16 thus having failed to establish the legal transfer, the property could be taken up by the State on the principle of escheat.
20.We have noticed the Apex Court's decision where similar situation was negated by the Apex Court. Whether there are two trusts or not, is not the issue. Even if we accept that it is not a part of the original 1872 trust, the certificate of registration as available on record issued from the office of the Commissioner of Public Charities, Bombay clearly shows that this property is a part of the Shree Navanagar Sadavarat Trust of which Smt.Velabhai Chaturbhuj, widow of Sri.Chaturbhuj Gordhandas, is also a trustee. The moment this is shown, the provisions of the Act would not be attracted. So, on the own showing of the State, the plea of escheat cannot be sustained. In view of the registration as aforesaid, whether the transfer of the property to the trust is valid or not, it gives a right to the original petitioner to maintain proceedings and W.A. 439/2017 17 contest the matter. It is an endowment to a charitable trust of immovable properties, which fact is endorsed by the widow of the original purchaser in her affidavit.
21.Thus seen, from any angle, the District Collector did not have the jurisdiction in the matter over the property in question. The jurisdiction was wrongly assumed. We therefore find no error in the judgment of the learned single Judge and we find no merit in the appeal. It is accordingly dismissed. It is submitted that the possession of the property has been taken over by the State. We accordingly direct the State to handover vacant peaceful possession to the original petitioner within a period of six months. Sd/-
NAVANITI PRASAD SINGH, CHIEF JUSTICE Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE vps