Case BriefsHigh Courts

Rajasthan High Court: Sameer Jain J. dismissed the petition and refused to interfere with the impugned order.

Factual Background

The facts of the case are such that the respondent is mother of petitioner 1 and mother-in-law of petitioner 2, whose husband passed away bequeathing all movable and immovable properties in favour of the respondent by way of will prior to his death. The respondent has 3 sons and 1 daughter. She bought a house which is disputed in the instant case wherein she was living with the son second in number as the elder son had died and younger son is not well to do. Petitioner 1 filed suit before the Civil Court for declaration of the disputed property (85% under his name) as he invested around 8 lakhs out of his own funds. The Civil Court rejected the plaint upon Order 7 Rule 11 application by order dated 06-08-2021 against which an appeal was preferred which is sub judice before this Court. The present writ petition was filed under Article 226 & 227 Constitution of India against the order dated 08-03-2019 passed by the Maintenance and Welfare of Parents and Senior Citizen Tribunal (S.D.O.) Jaipur City, Jaipur whereby, petitioners were directed to vacate the premises and the rights of respondent mother were restored.

Arguments

Counsel for respondent mother submitted that it is only because of pension of her husband that she is able to financially support herself otherwise, she is ousted out of her house by the petitioners and is being harassed by them on day to day basis and she is under pathetic condition suffering mental and social torture as she has to live in her married daughter’s house, which is against the customs of Hindu joint family.

Counsel for petitioner submitted that the allegations of ill-treatment qua abusive language, neglect, mental and physical torture against him and his wife are only cooked story. The fact of not providing food, not taking appropriate care of relatives or visitors of the respondent and not providing medical facilities to the respondent are also part of the sham story. The petitioners further submit that it is on her own sweet will that the respondent went to Bhiwani, her native town, to her sister-in-law in the year 2010 and thereafter since March, 2018 until today she is residing at her daughter’s house and the petitioners had no role to play in forcing her out of the disputed property for the said period.

Observation

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

The Court relied on judgment S. Vanitha v. Deputy Commissioner, 2020 SCC Online SC 1023 and observed that when there are family laws and personal laws and there is domestic conflict between in-laws and daughter-in-law, both are protected by respective legislation. However, in the event of conflict between them, the dominant purpose of both the statutes has to be seen in a harmonious way as it is important to strike a balance between family law and personal law and read them in a way so as to glue the family and society.

The Court after perusing the facts and grounds of impugned order has come to a conclusion that ill-treatment is meted out to the respondent-mother, she is expelled from her own house, allegations of mental, physical and social abuse have been leveled against the petitioners and during the proceedings before this court respondent-mother categorically submitted that living with the petitioners would pose a threat to her life and mental wellbeing, the prayer of the petition to set aside the eviction order of tribunal passed on 08-03-2019 does not have a leg to stand on.

Decision

The Court held “the petitioners along with their family are directed to honor the impugned order dated 08.03.2019 and vacate the premises within a period of 30 days from the date of pronouncement of the judgment on their own cost and restore the house in vacant manner and in appropriate condition to the respondent-mother with due respect.” [Suresh Sharma v. Dhanwanti Sharma, 2022 SCC OnLine Raj 672, decided on 07-04-2022]


Appearances-

For Petitioner(s): Mr. Deepak Sharma

For Respondent(s): Mr. Ashok Mehta and Mr. Mudit Singhvi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., is considering a very interesting case where the dispute between the parties is regarding the ownership of a YouTube channel. The Court has found a prima facie case in favour of the plaintiff and issued certain directions.

Plaintiff was a part of a Group Company division, ‘Frankfinn Institute of Air Hostess Training’, which was a reputed organization, engaged in the field of imparting training in the field of Aviation, Hospitality, Travel Management and Customer Services. It has also entered the arena of music and had its first home entertainment release. It has also produced a movie named, “SAT SRI AKAL”

Senior Counsel for the plaintiff submitted that defendant 2 through its proprietor Kanwal Deep Kohli, created a YouTube channel, initially called ‘Divine Amrit Bani’ for and on behalf of the plaintiff. The content for uploading on the said channel was provided solely by the plaintiff.  The YouTube channel was renamed “Shabad Kirtan Gurbani – Divine Amrit Bani” having the URL:  http://www.youtube.com/user/divineamritbani and was available on the platform of the defendant 3/Google LLC.

Defendant 2 used to manage the Suit Channel for the plaintiff and there was no doubt about the ownership of the channel vesting with the plaintiff. However, defendant 1 started unlawfully asserting ownership rights in respect of the Suit Channel, on the basis of some arrangement with defendant 2, which was only to manage the Suit channel.

Crux of the Matter

Ownership of the Suit channel

The applicant stated that it is a necessary party to this suit as, on the determination of the ownership, the Suit Channel would become their asset, whereas the plaintiff asserted that the Suit Channel was created for it and was initially managed by Kanwal Deep Kohli, proprietor of defendant 2 who, later on, engaged the services of the defendant 1 to manage the Suit Channel and for that purpose, created a JVA.

Kanwal Deep Kohli took the stand that he had created the Suit Channel.

Analysis and Discussion

Applicant claimed that the assets of Kanwal Deep Kohli in his proprietorship firm, namely defendant 2/Indya Records, had been transferred to it under the JVA. However, there was absolutely no document that set out the Suit Channel as an asset of defendant 2 or Kanwal Deep Kohli’s own assets and which stood transferred to the applicant when it was created through the JVA.

Moreover, there was not a whisper of any money coming to the share of the JVA entity or it’s having asserted any such claim since it came into existence seven years ago.

In the JVA ‘content’ had been defined, but there was no reference whatsoever to a ‘YouTube channel’. Prima Facie, therefore, it was clear that the Suit Channel was not part of the JVA.

It was also noted that the Suit Channel stood created in the year 2012 while the JVA was entered into in 2013, hence it was reasonable to assume that had the Suit channel been part of the assets of defendant 2, which merged with applicant/entity pursuant to the JVA, there would have been no reason why it would not have found mention in the document.

As per the Agreement, it was recorded that the company was to “acquire content” and then license it to the defendant 1 for commercial exploitation on a revenue-sharing basis. There was a reference to platform owners, but not a whisper on the Suit Channel, or any YouTube channel for that matter.

In Court’s opinion, the applicant failed to disclose any right or interest that would make it a proper or necessary party to this suit.

Defendant 1 had not been transferred any ownership rights by Mr Kanwal Deep Kohli, who created the Suit Channel by registering the domain name.

Furthermore, in lieu of services, revenue was shared between the plaintiff and the defendant 1 i.e., 70% going to the plaintiff and 30% going to the defendant 1 as per the agreements between them.

Had the Suit Channel been the exclusive property of the defendant 1, there was no logic in taking the smaller share as the Agreements were with the plaintiff on a “non-exclusive basis‟, whereas the Suit Channel was to be “exclusively” used for the plaintiff’s content.

Further, so long as the Suit channel was earning revenue, defendant 1 was obligated to disclose the revenues to the plaintiff and could not have staked claim to the entire revenue as it had done. Unfortunately, despite the directions of this Court to defendant 1 to file the complete accounts with the plaintiff, defendant 1 did not comply with the same. Hence, defendant 3/Google LLC will have to be directed to file before the Court the earnings of the Suit Channel from 16-4-2021 till date.

Plaintiff disclosed a prima facie case in its favour as the Suit channel was created for uploading only its contents.

With respect to the question of “irreparable loss and injury”, the impact on viewership, the loss of goodwill and viewer satisfaction cannot be measured only in monetary terms.

High Court gave the following directions:

(a) The application being I.A.7062/2021, filed by defendant 1 under Order XXXIX Rule 4 CPC seeking setting aside/modification of the ex parte ad interim injunction granted by this court vide order dated 20th April, 2021, is dismissed.

(b) I.A. 6086/2021 and I.A.7691/2021, both filed by the plaintiff under Order XXXIX Rule 2A CPC, are disposed of requiring the defendant 1 to file an affidavit, (i) disclosing the restoration of the entire content of the plaintiff in the Suit Channel, (ii) affirming that the Username, Password and other details of the Suit Channel have been handed over to the plaintiff.

The affidavit be filed within a week of this order, failing which further action, as contemplated under law and Order XXXIX Rule 2A CPC, will be initiated against defendant No.1 through its Directors/Officers responsible for compliance of this order.

(c) I.A.5727/2021 filed by the plaintiff under Order XXXIX Rules 1 & 2 CPC is disposed of, further restraining defendant 1, its directors, promoters, as the case may be, servants, agents, franchisees or anyone acting for and, on its behalf, from removing, copying, destroying, transferring, or deleting the plaintiff’s content on the Suit Channel or uploading third party videos on the Suit Channel.

(d) Defendant 1 shall also disclose on an affidavit the revenues earned since the year 2015 till date. Defendant 1 shall further disclose on an affidavit the revenue that has been transferred by it to the plaintiff till date, including after the expiry of the Agreement between the two and shall continue to disclose on an affidavit the up-to- date revenue collected from the Suit Channel.

If within one week of this order, defendant 1 fails to disclose these revenue details, the defendant No.3/Google LLC, on being informed by the plaintiff about the same, shall do so within a week thereafter.

(e) The participation of the applicant/Indya Records and Films Private Limited in the suit neither appears to be proper nor necessary for the just disposal of the suit. Accordingly, I.A. 6250/2021 filed by the applicant under Order I Rule 10 CPC for its impleadment is dismissed.

[Frankfinn Entertainment Company (P) Ltd. v. Unisys Infosolutions (P) Ltd., 2022 SCC OnLine Del 657, decided on 2-3-2022]


Advocates before the Court:

For the Plaintiff:

Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Kapil Midha, Ms. Pritika Juneja and Ms. Versha Singh, Advocates

For the Defendants:

Mr. Asutosh Lohia, Mr. Rohan Dewan and Ms.Shraddha Bhargava, Advocates for D-1

Mr. Arjun Natarajan, Mr. Mayank Sapra and Ms. Lakshmi Kant Srivastava, Advocates for D-2

Mr. Aditya Gupta and Ms.Aishwarya Kane and Mr. Raunaq Kamath, Advocates for D-3

Mr. Sagar Chandra, Ms. Sakshi Pande and Ms. Urvashi Garg, Advocates for applicant/proposed D-4 in I.A. 6250/2021

Experts CornerPramod Rao

Ravenclaw door-knocker: “Where do vanished objects go?”

Prof McGonnagall : “Into non-being, which is to say, everything.”

Harry Potter and the Deathly Hallows, J.K. Rowling, 2007

Background

Students of Indian history will be aware that one of the means which fuelled the rise of British paramountcy in India was the doctrine of lapse[1]. In terms of the doctrine, a princely State without a male heir (or competent heir) would be subsumed into the British Indian empire. The doctrine supplanted the long-established right of an Indian sovereign without an heir to choose a successor.

The principle of bona vacantia, escheat or lapse[2] works similarly: If an asset has no legal heir or claimants, then either the permanent ownership, or the temporary custodianship, of the asset is assumed by the State.

What can lead to an asset having no owner or being abandoned, or if the owner has passed away, with no legal heir or claimant?

As unlikely as it sounds, a possibility is that the individual forgot about the assets or it has been lost, or even mistakenly or wilfully abandoned. What is much more possible is that the individuals have passed on, and their legal heirs and successors are unaware about these assets and hence cannot make the claim. Hence such assets remain unclaimed over extended periods of time. Finally, the individual has passed on and did not have any legal heirs or successors.

What happens to such unclaimed assets? Do they vanish into non-being i.e. into everything? Do the rightful owners, heirs or claimants find or receive such assets eventually?

In this paper your columnist examines the Indian legal regime governing such unclaimed assets.

Indian Legal Position

The principle of bona vacantia or escheat or lapse was declared to be a part of the law in India by the Privy Council as early as in 1860[3]. The Privy Council also held that the general law having universal application is that “private ownership not existing, the State must be the owner as the ultimate Lord”.

Calcutta High Court separately observed (whilst noting the Privy Council judgment) as follows:

“Not that such a doctrine was unknown in India, for our ancient lawgiver Manu, for example, declared more than 2000 years ago thus in Manusawhita (Chapter DC, Verse 189):

Aharajyam Brahmanadravyam Rajna Nityamiti Sthiti, Itareshantu Varnanam Sarbabhave Harenripa.

This (verse), while negativing the king’s right to brahminical property even on failure of all heirs, affirmed the king’s title to all the properties belonging to persons of other classes dying leaving without any heir.”[4]

The principle thereafter finds a mention in the Indian Constitution. Article 296 specifies as follows:

  1. 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.

 

In essence, Article 296 makes it clear that the principles applicable to bona vacantia, escheat or lapse, prior to commencement of the Constitution of India, would continue. It also draws on the English law principles on escheat that the Crown is regarded as “the Lord paramount of the whole soil of the country”[5] which succeeds to the asset in absence of any legal heir[6]. The article also follows the federalist approach in terms that assets situated in a State that would have accrued to the State, shall vest in the State, and in any other case, shall vest in the Union.

Several States have laws governing bona vacantia, escheat or lapse[7]. Such laws, by and large, specify the official or the authority which have general superintendence of escheat assets, the manner of inquiry, giving of notice, taking of possession, disposal of claims or challenges, etc. In general, the vesting of such assets in the State is of permanent nature.

The assets that vest in the Union, while not specified, can be taken to follow the legal position prior to the Constitution coming into force, and also in terms of matters legislated pursuant to Article 246 (and List 1 and List 3 of the Seventh Schedule) of the Constitution.

Escheat also finds mention in the personal laws governing succession. Section 29 of the Hindu Succession Act, 1956 states:

  1. 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.

Similarly, in Section 34 of the Succession Act, 1925[8], it states:

  1. Where intestate has left no widow, and where he has left no kindred.— Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.

Courts have noted that Section 29 comes into operation only on there being a failure of heirs. Section 29 shall not operate in favour of the State if there is any other heir of the intestate. Failure means a total absence of any heir to the person dying intestate[9].

It is posited that “Government” as referred to in the above two statutes, would follow the constitutional mandate, and that the unclaimed assets vest in one or more State Governments and in the Union Government in terms of the relevant State legislations and Union legislations[10].

It is important to note that if there are legal heirs or a will has been made, then the principles of bona vacantia, escheat and lapse and the statutory framework dealing with the same have no applicability.

Furthermore, there are safeguards and essential conditions which have been specified, including proving absence of heir and of giving public notice for claimants to step forward.

The Supreme Court has noted that when a question of escheat arises,

  1. 20. … 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.

*           *          *

  1. The principle that the law does not readily accept a claim to escheat and that the onus rests heavily on the person who asserts that an individual has died intestate, leaving no legal heir, qualified to succeed to the property, is founded on a sound rationale. … This principle is based on the norm that in a society governed by the rule of law, the court will not presume that private titles are overridden in favour of the State, in the absence of a clear case being made out on the basis of a governing statutory provision[11].

It has been again reiterated[12]:

  1. 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.

It is noted that heirs or claimants can be anywhere in the world, and hence heirs or claimants need not be within the territorial jurisdiction of India or of the relevant State. This also would enhance the burden on the State to establish having met the essential conditions.

The Supreme Court, also building on the rule of law, noted that:

  1. 25. To allow administrative authorities of the State — including the Collector, as in the present case — to adjudicate upon matters of title involving civil disputes would be destructive of the rule of law. The Collector is an officer of the State. He can exercise only such powers as the law specifically confers upon him to enter upon private disputes.[13]

Hence, it would be necessary to ensure that the courts of competent jurisdiction make the necessary determination on whether or not the State has adequately established that principles of bona vacantia, escheat and lapse can be applied and has followed all essential conditions.

Properties and Assets

The kind of properties and assets within the sweep of the principle of bona vacantia, escheat and lapse are examined in this section.

“Property” is a term of the widest import, and subject to any limitation or qualification which the context might require, it signifies every possible interest which a person can acquire, hold and enjoy[14].

Accordingly, the principles of bona vacantia, escheat and lapse have been applied to a variety of properties and assets. These have included:

(i) the property of a dissolved corporation[15];

(ii) the property of a company struck off by the Registrar for non-filing of statutory returns[16];

(iii) if a dissolved corporation had a subsisting interest in the lease on the date of dissolution, then such interest[17];

(iv) tenancy interest, howsoever limited[18];

(v) debts, being a species of property[19]; and

(vi) shebait of mandir[20].

The principles of bona vacantia, escheat and lapse have also been, inter alia, applied to the financial assets[21] such as dividends on shares, matured deposits with companies (other than banks), matured debentures with companies, redemption amount of preference shares and credit balances in any bank account and deposits.

 

Points to Ponder

Given the federal approach to applying principles of bona vacantia, escheat and lapse envisaged in the Constitution, a variety of State legislations, case law which have developed, the overall approach of the polity as well as the institutional underpinning appear to be underdeveloped, inconsistent and requiring review.

Certain points to consider in respect of applying the principles of bona vacantia, escheat and lapse, are:

  • Property or assets do not appear to have a uniform definition across the State legislations.
    • A model legislation, with clear definitions, could be considered and which the States use to align their current laws and legislations.

 

  • Lack of recognition or clarity in the State legislations of the fact that certain types of properties or assets would accrue to the Union Government or as per legislations made by the Parliament.
    • The model legislation could also specify the federal approach expected in Article 296 in clear manner.
    • The Parliament can also enact a legislation that enunciates the approach for Union Government to implement Article 296.

 

  • Lack of public notice to claimants or heirs on a nationwide and worldwide basis (as laid down by the Supreme Court), and limiting notice obligation to the locality where the property is situate.[22]
    • Giving of global or national level notice is necessary to be consistent with the Supreme Court decisions, generally accepted legal practice and societal expectations, and in ensuring due opportunity to legal heirs or claimants to make due claims. This could be vide an internet site or portal that hosts the notices and details of unclaimed assets.

 

  • Lack of consistency across different types of assets in respect of whether the unclaimed asset passed into permanent ownership, or into temporary custodianship, of the Government (State or Union).
    • Temporary custodianship, which terminates on handover of the asset to rightful claimants appears to be a much fairer approach to specify. This should be the approach adopted by the Governments; to these ends, extended period of time for the custody, undertaking measures for reaching out to rightful claimants or heirs as well as strong diligence on the claims received prior to handover would be desired.
    • Perishable unclaimed assets, or when costs of custody can exceed the cost of assets, the assets could be sold or disposed of, and the proceeds held for the rightful claimants.
    • Passage into permanent State ownership should be avoided.
      1. Ultimately, the State has fiscal powers – to tax, to levy duty, to levy fees – that underpin the revenues and expenditures of the Government. Acquiring assets purely by chance, and primarily due to lack of knowledge of the rightful claimant or heirs about the assets is a practice that deserves deprecation and being discouraged.
      2. Separately, tracing the evolution of bona vacantia, escheat and lapse also led us to its origins in systems of monarchy or feudalism and assertion of sovereign’s paramountcy. In a modern democracy and republic, such a concept of accrual of unclaimed assets to the sovereign should not survive.
      3. The aim of the State should be to preserve and protect the unclaimed assets (or if perishable or costly to keep in custody, dispose of the same and hold the proceeds), and identify and hand over to rightful claimants. Currently, the approach at least as seen in the State legislations is far more adversarial and acquisitive.

 

  • Absence of independent institutional framework for dealing with unclaimed assets. The States largely depend on and require the Collectors or district administration to deal with unclaimed assets. These authorities may both lack the bandwidth and also the expertise in handling unclaimed assets, or applying the approach outlined above.
    • Creation of an independent institutional focus, geared towards objectives as outlined above – preserving and protecting the unclaimed assets, identifying and handing over to rightful claimants – and doing so in a citizen-centric, claimant-friendly, methodical manner, which inspires confidence of the citizenry that right will be done by them (as heirs and claimants or for their own heirs and claimants). Such an institution can also become the administrative machinery for the assets of a company dissolved under the Companies Act or other similar such incorporated bodies (absence of which machinery had been noted way back in 1959).[23]

 

  • Determination of bona vacantia, escheat and lapse by the authorities comprising the executive branch of the State.
    • In keeping with the Supreme Court decision[24], whilst the executive can conduct inquiries and initiate a claim of bona vacantia, escheat and lapse, the determination that indeed the claim is sustainable should be by a court of competent jurisdiction.

 

Even as the above propositions, and further propositions (dealing with treasure troves, lost and found objects, abandoned assets, conduct of public auctions or, giving of notices and so on) could be embedded into a model legislation, and movement towards ensuring that the assets are in the hands of the rightful heirs or claimants of a deceased. In a world where the degrees of separation keep reducing, being able to trace and locate the heirs and claimants can prove far easier.

Concluding Remarks

The key takeaways for the readers should be:

(i) For your own assets and properties, ensure your chosen heirs are fully aware and informed about the same, (and how to claim or obtain the same on demise or becoming incapacitated).

(ii) Make due nominations – especially for financial assets and employee benefits, and wherever else possible.

(iii) Make a will. The principles of bona vacantia, escheat and lapse and the laws outlined apply when a person dies intestate – without a will.

 


Pramod Rao, Group General Counsel at ICICI Bank. Views are personal. Assisted in certain research by Dikshi Arora.

[1] See HERE, also noted in Prayas Buildcon (P) Ltd. v. State of U.P., (2021) 144 ALR 496 : “We may recollect, having gone through history, that prior to 1857, several estates were taken over by British Company i.e. East India Company by way of annexation. Doctrine of lapse applied in Jhansi was another kind of above-mentioned two principles.

[2] Distinctions between bona vacantia” and “escheat” or “lapse” may be exceedingly fine. Bona vacantia means “ownerless goods” or “vacant goods” and can connote abandoned, lost, mislaid or forgotten property, whilst escheat is when no legal heir to a deceased’s property exists: both however result in permanent ownership or temporary custodianship of the Government, and hence are often used interchangeably. Cited from: <HERE >.

[3] Collector v. Cavary Vancata Narrainappah, (1859-61) 8 Moo IA 500 at pp. 525.

[4] Biswanath Khan v. Prafulla Kumar Khan, 1988 SCC OnLine Cal 48 : AIR 1988 Cal 275

The judgment goes on to hold: Hindu law was to be administered in the case of succession to properties of a Hindu dying intestate, it was to be so administered only when he had any heir to succeed thus providing occasion for private succession. But on a total failure of all private heirs, the properties and the succession thereto ceased to be governed by any personal law of succession and, therefore, a case of a Hindu, whether a Brahmin or a non-Brahmin, dying leaving no heirs, was not to be governed by the Sastric Hindu law as enunciated by Manu, but was to be governed by the general law of universal application and that general law was that “private ownership not existing, the State must be the owner as the ultimate Lord. This right to acquire by way of escheat or as bona vacantia is not a creature of any private law of succession but is an attribute of sovereignty. It is true that statutory provisions of private law of Succession e.g. S. 29, Hindu Succession Act, 1956, sometimes expressly recognised right of the State to acquire properties by escheat or as bona vacantia. But that right would have been very much there even without any such provisions”.

[5] Halsbury’s Laws of England, 4th edn., Vol. 17, para 1439, as cited in State of Rajasthan v. Lord Northbrook, 2019 SCC OnLine SC 1117: In view of difference of opinions and the distinguishing judgments (R. Banumathi, J. allowed the appeal and Indira Banerjee, J. dismissed the appeal), the matter is to be placed before the Chief Justice of India for referring the matter to the larger Bench.

[6] Prior to the Constitution coming into force, following statutes can be traced: Statutes 16 and 17 Victoria, c. 95, S. 27, an Act to provide for the Government of India asserted that “all real and personal estate within the said territories escheating or lapsing for want of an heir or successor, and all property within the said territories devolving, as bona vacantia for want of a rightful owner, shall (as part of the revenues of India) belong to the East India Company in trust for Her Majesty for the service of the Government of India”. Thereafter, S. 54 of the Government of India Act, 1858, the existing provision was continued in force and was construed as referring to the Secretary of State in Council in place of East India Company. Thereafter, S. 20(3)(iii) of the Government of India Act, 1915, provided that the revenues of India received for His Majesty would include, “all movable or immovable property in British India escheating or lapsing for want of an heir or successor, and all property in British India devolving as bona vacantia for want of a rightful owner”. Finally, S. 174 of the Government of India Act, 1935 contained a provision similar to the text of Art. 296.

[7] Examples of State legislation’s can be seen:

Andhra Pradesh:<HERE >

Rajasthan:<HERE >

Kerala: <HERE > ,

Telangana: <HERE>,

Orissa: <HERE >,

West Bengal: <HERE >

In some States, the Land Revenue Code may contain the provisions on bona vacantia, escheat and lapse.

[8] This part of the Act does not apply to Parsi intestates; for Parsi intestates, see S. 56 of the Succession Act, 1925. Muslim personal law embeds the principle of escheat: the State is regarded as the ultimate heir of every deceased Muslim without any heir, see also: <HERE >. Such escheated land is also called nazul land: “Land or buildings in or near towns or villages, which have escheated to the Government; property escheated or lapsed to the State: commonly applied to any land or house property belonging to Government either as an escheat or as having belonged to a former Government.” (Narain Prasad Aggarwal v. State of M.P., (2007) 11 SCC 736.  It is such land which is owned and vested in the State on account of its capacity of sovereign, and application of right of bona vacantia, which is covered by the term “nazul”, as the term is known for the last more than one and half century. The nazul properties form the assets owned by the State in trust for the people in general who are entitled for its use in the most fair and beneficial manner for their benefit. See also: Prayas Buildcon (P) Ltd. v. State of U.P., (2021) 144 ALR 496 : “In Uttar Pradesh, management of ‘nazul properties’, in absence of statutory provisions, is governed by various administrative orders compiled in a manual called ‘nazul manual’. The Government has made provisions of management of ‘nazul’ through its own authorities, namely, District Magistrate or Commissioner, or, in some cases, through local bodies. In relation to nazul properties situated in Lucknow, the role of Lucknow Development Authority, Lucknow (LDA) is only to the extent of management and preservation thereof. LDA is not the owner of the nazul land/property, which vests only in the State Government. Governments have given nazul properties on lease to private persons/entities under the Government Grants Act, 1895.”

[9] State of Punjab v. Balwant Singh, 1992 Supp (3) SCC 108 : AIR 1991 SC 2301 : (1991) 1 SCR 458.

[10] That it can only be the State Government or the Union Government, and not a local authority or municipal authority can be noted from the text of Art. 296 and the decision in Ram Prasad v. Gram Panchayat, 1956 SCC OnLine Raj 106 : AIR 1957 Raj 43.

[11] Kutchi Lal Rameshwar Ashram Trust v. Collector, (2017) 16 SCC 418, 429, 430  and 432.

[12] State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118, 216.

[13]  Kutchi Lal Rameshwar Ashram Trust v. Collector, (2017) 16 SCC 418, 432.

[14] J.K. Trust v. CIT, AIR 1957 SC 846.

[15] Peirce Leslie and Co. Ltd. v. Violet Ouchferlong Wapshare, AIR 1969 SC 843 : (1969) 39 Comp Cas 808 : 1969 3 SCR 203. However, this seems to lack statutory provisions in support. See S. 352 of the Companies Act, 2013 (in pari materia to S. 555 of the Companies Act, 1956 or section 244B of the Companies Act, 1913) which deal with distribution of money to creditors or contributors and in specifying that the rightful claimant can receive back moneys after due process being followed (without the elapse of time having any adverse implication and hence an example of temporary custodianship by the Government); Noting this, Calcutta High Court observed in Rai Saheb U.N. Mandal’s Estate Ltd., In re, 1958 SCC OnLine Cal 137 : AIR 1959 Cal 493 : (1960) 30 Comp Cas 172 Cal : (1958-59) 63 CWN 889:  “If, therefore, without the express statutory provisions of Ss. 354 and 355 of the English Companies Act, 1948, the doctrine of bona vacantia applied in England, it would be all the more so herein India because of Art. 296 of the Constitution of India, which uses the words any property in the territory of India which if this Constitution had not come into force would have accrued to His Majesty. Now if this property of a dissolved company could accrue formerly to the Crown in India then as bona vacantia it now belongs to and vests in the Union of India under Article 296 of the present Constitution. Normally a defunct company would hardly have any assets or property, but there may in few cases be some, however negligible. I asked Mr Basu, who was the counsel appearing for the Registrar of Joint Stock Companies to find out whether on the point the office of the Registrar, had already any procedure, and I was told that there was none. Parliamentary legislation appears to be necessary to evolve an administrative machinery for the protection and disposal of the assets of a company, dissolved under S. 560 of the Companies Act, 1956. For unclaimed dividends and undistributed assets of companies in liquidation there is provision for their going to the public account of India in the Reserve Bank under S. 555 of the Companies Act. But there appears no comparable provision for assets of dissolved Companies under S. 560 of the Act.

[16] TEE-EM (P) Ltd. v. Tata Consultancy Services Ltd (though the company was finally restored on the register after due application to the court and its orders in such behalf.

[17] Narendra Bahadur Tandon v. Shankar Lal, (1980) 2 SCC 253.

[18] Biswanath Khan v. Prafulla Kumar Khan, 1988 SCC OnLine Cal 48 : AIR 1988 Cal 275.

[19]  Arvind Mills Ltd. v. State of Gujarat, 1965 SCC OnLine Guj 225, with also a finding that when the debtor is a resident of a State, the situs of the debt would also be within the State and if the debt becomes bona vacantia, it would vest in the State under Art. 296.

[20] From Tagore Law Lectures (1936) published in “Hindu Law of Religious and Charitable Trust”, Justice B.K. Mukherjee (former Chief Justice): “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 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 but escheat can put an end to the trust and treat it as secular property”, cited in Rambir Das v. Kalyan Das, (1997) 4 SCC 102.

[21] Your columnist will endeavour to examine the treatment of financial assets in a separate paper.

[22] Even if such notice is by “an announcement of the declaration to be made by beat of drum in the village in which the property is situated or lies”, (extract from S. 12 of Telangana Escheats and Bona Vacantia Act, 1974, accessible Here, while creates a vivid imagery and throwback to the days of the announcements made in the days of rajas and nawabs, it does not satisfy the Supreme Court dictum.

[23] Rai Saheb U.N. Mandal’s Estate Ltd., In re, 1958 SCC OnLine Cal 137 : (1960) 30 Comp Cas 172 Cal: AIR 1959 Cal 493 : (1958-59) 63 CWN 889, also see footnote 14 above.

[24]  Kutchi Lal Rameshwar Ashram Trust v. Collector, (2017) 16 SCC 418.

Case Briefs

Competition Commission of South Africa in a statement prohibited the transaction proposed by ECP Africa intended to acquire Burger King (South Africa) and Grand Foods Meat Plant (Pty) Ltd (grand Foods) from Grand Parade Investments.

What would be the impact of the merger?

Commission found that the merger would lead to a significant reduction in the shareholding of historically disadvantaged persons in the target firm, from more than 68% to 0% as a result of the merger.

The said merger would not have resulted in a substantial prevention or lessening of competition.

Commission stated that the acquiring firms do not have ownership by historically disadvantaged persons (HDPs). As a direct result of the proposed merger, the merged entity will have no ownership by the HDPs and workers.

No Public Interest

Therefore, Commission was concerned that the proposed merger would have a substantial negative effect on the promotion of greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons in firms in the market as contemplated in Section 12A(3)(e) of the Competition Act.

Concluding the statement, Commission stated that the proposed transaction raised significant public interest concerns and has a substantial negative effect on the promotion of a greater spread of ownership.


Competition Commission of South Africa

Op EdsOP. ED.

The term “ownership” literally means to have or hold a thing. The Black’s Law Dictionary defines ownership as “the bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to the other”. In the legal sense, the term “ownership” means right over a thing to the exclusion of all other persons, implying non-interference by others in the exercise of his rights and the same must be distinguished from a mere holding of a thing in one’s possession.

Austin defined ownership as “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. His definition thus implies three attributes viz.:

(i) Indefinite user – the owner of a thing is free to use or misuse the thing in a way he likes.

(ii) Unrestricted disposition – the power of disposition of the owner is unhampered by law meaning that he is absolutely free to dispose it to anyone.

(iii) Unlimited duration – ownership of a person cannot be cut short and the owner can continue to be the owner as long as he likes. 

The High Court of Calcutta, in its judgment in Jiban Roy Choudhury v. Taramoyee Debi1, has explained ownership and its incidents as follows:

11. In Salmond’s Jurisprudence (12th edn.) ownership is described as follows (Chapter 8):

“Ownership denotes the relation between a person and object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem being good against all the world and not merely against specified persons. Though in certain situation some of these rights may be absent, the normal cases of ownership can be expected to exhibit the following incidents.”

12. The incidents are (i) right to possess the thing though he may be wrongfully deprived of it or may have voluntarily divested himself of it; (ii) right to use and enjoy the thing owned, right to manage and use, to the income from it such right to possess being in fact liberties; (iii) right to consume or destroy as also to alienate or transfer the thing by will after death or by conveyance during lifetime; (iv) right of ownership being indeterminate in duration such interest being perpetual, determined neither by any set point (as the interest of a lessee or bailee) nor by owner’s death, as the property owned can descend to his heirs or while the new owner’s interest is to continue, if the property is sold to him prior to death, unaffected by such death; and (v) ownership is residuary in character and when the lesser rights are given away, their extinction revives all rights in the owner.

 Ingredients of ownership

Normally ownership comprises the following:

(i) Right to possess: The owner of a thing has a right to possess it, to the exclusion of all others i.e., the owner has exclusive control of a thing.

(ii) Right to use: The owner has right to use the subject-matter of ownership as per his own discretion.

(iii) Right to manage: The owner has the tight to manage i.e., he has the right to decide how and by whom the thing shall be used.

(iv) Right to the capital/alienation: The owner has exclusive right of alienating with the thing. A non-owner may possess a thing but he can not transfer its ownership.

(v) Right to income: The owner of a thing has the right to the income arising out of the thing within the limits, if any, laid down by any law.

 Types of ownership

The different types of ownership may be mentioned:

(i) Vested ownership: An ownership is vested when all the events essential to vest property in the owner have happened and the owner’s title is already perfect. For example, two people sharing ownership of a property. If one dies, the other gets the gain of vested ownership of the property.

(ii) Contingent ownership: The ownership is conditional. In this case, the transfer of ownership is subject to certain conditions. For example, a testator may leave property to his wife for her life and on her death to A, if he is then alive, but if A is dead to B. Here A and B are both owners of the property in question, but their ownership is merely contingent.

(iii) Sole and co-ownership: When the right of ownership is exclusively vested in one person, it is called sole ownership. When the property is jointly held by several persons at the same time, it is called co-ownership.

As per the English law, co-ownership is further sub-divided into joint tenancy and tenancy in common.

(iv) Corporeal ownership: The said ownership relates to corporeal property, moveable or immoveable. For example, ownership of land, goods, etc.

(v) Incorporeal ownership: The said ownership relates to intangible objects. For example, ownership of a right, patent, etc.

(vi) Legal and equitable ownership: Legal ownership originally meant the one having its origin in the rules of common law. For example, a lender who has lent money for a property is the legal owner of that property.

On the other hand, equitable ownership resulted from rules of equity different from common law.

(vii) Trust and beneficiary ownership: Trust is defined as an obligation annexed to the ownership of the property and arising out of a confidence reposed or declared. The person who reposes the trust is called “author”, the person accepting the confidence is called “beneficiary” and the subject-matter of the trust is called “trust property”. The person in whom the property vests is called the “trustee”, and he has the “trust or legal ownership” of the property. The person for whose benefit the property is held is called the “beneficiary”, and his ownership is termed as “beneficial ownership”.

(viii) Absolute and limited ownership: When all the rights of ownership i.e., possession, enjoyment and disposal, are vested in a person without any restriction except those imposed by law, his ownership is said to be absolute. On the other hand, where the ownership is subject to limitations on use or duration or disposal, the ownership is said to be limited.

The Patna High Court in the judgment of Hira Singh v. Sk. Mosaheb2,  regarding the ownership of property in lieu of dower held as under:

9. The learned Judge having quoted that passage came to the conclusion that, in all cases where a Muhammadan widow is found in possession of property in lieu of dower after her husband’s death, her position is that of a usufructuary mortgagee and that she is entitled to remain in possession merely as a mortgagee, in order that her claim for dower might be satisfied out of the rents and profits and that she is, in no case entitled to any larger interest. He came to the conclusion that, if her position was that of a mortgagee in possession she was clearly not entitled to execute a conveyance in respect of the property in favour of Defendant 1, and that, having regard to what her actual position was, namely, that of a mortgagee in possession, she could not acquire a title by adverse possession by having her name recorded as a kashikar in the record of rights, and that no act on her part could bar the right of the heirs of Teg Ali to sue for possession of the property as against the widow or her transferees on the ground that her claim for dower had been satisfied and that, therefore, they were entitled to the equity of redemption in the property … I can see no reason in law why the husband should not during his lifetime satisfy his liability to pay his wife’s dower just as much out of real property as out of personal property, such as money. The dower can be paid off at any time during the joint lifetime of the husband and wife. It can certainly be paid in money, although it may not be usual to do so, and I can see no reason why a conveyance of landed property should not be made to the wife as an out and out transfer of ownership for the purpose of satisfying the dower. In fact, in another passage in the work of the learned author to which reference has already been made, at p. 318 of the first edition, it is clearly stated that a gift by a husband to a wife during his lifetime by way of payment of her dower is a gift for which there is a good consideration and may be treated as a hibi-bil-iwaz. In these circumstances, it seems to me, although I agree with the learned Judge of this Court that the decision of the Subordinate Judge cannot stand because he assumed a presumption to exist, which, in my opinion, has no legal foundation, nevertheless, the matter is not concluded and ought to go back again to the Subordinate Judge for further consideration for him to determine upon the evidence already given and upon the surrounding circumstances of the case whether, in fact the transaction which took place shortly before the death of Teg Ali was an out and out gift to his wife, or was merely a transaction whereby she was put in possession of the property to satisfy herself for her arrears of dower out of the rents and profits of that property. 

  1. …With these directions, I think that the case should be remanded to the Subordinate Judge to arrive at a conclusion of fact upon the main question in the case without giving any weight to the consideration which influenced him in the first instance where he found that in such a case as this it is usually an absolute right which is given. There is no such presumption that it is usually an absolute right and therefore, that matter must be left out of consideration by the Subordinate Judge and must not be allowed to influence his judgment in any way.…

Modern modes of acquiring ownership

Under modern law, modes of acquiring ownership may be classified under two heads:

(i) original mode; and

(ii) derivative mode.

Original mode: The said mode is the result of some independent personal act of the acquirer himself. It is of following kinds:

(i) Absolute mode: In this mode, ownership is acquired over previously ownerless object.

(ii) Extinctive mode: In this mode, there is extinction of previous ownership by an independent adverse act on part of the acquirer.

 (iii) Accessory mode: In this mode, requisition of ownership is the result of accession.

Derivative mode: When ownership is derived from a previous owner, it is called derivative acquisition of ownership. It is derived by any of the following modes: 

(i) Title of prior owner: In agreement, a title is acquired with the consent of the previous owner. It is only limited to contracts but includes all bilateral acts which create an interest. Such agreement may be either by assignment or by grant.

(ii) Purchase: A contract for sale does not confer title in immoveable property. As per Section 54 of the Transfer of Property Act3, a contract for sale of immoveable property is a contract that such sale shall take place on terms settled between the parties. However, if a person has entered into possession under a contract for sale and is in peaceful and settled possession of the same with the consent of the person having the title thereto, he is entitled to protect his possession against the whole world.

(iii) Will: In this regard, as decided by Delhi High Court in Lakshmi Devi v. State of Delhi4; Rajinder Singh Chowdhary v. S. Manjit Singh Chowdhary5, husband of a testatrix cannot claim absolute ownership over the property after the death of his wife, and would have no authority to bequeath the same by way of will. The Court held as:

  1. The Full Bench of this Court in Rajinder Singh Chowdhary v. S. Manjit Singh Chowdhary6 was confronted almost with identical proposition of law and took the view that it is the intention of the testator that has to be found out on a reading of the will and there cannot be any hard and fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation.

20. The function of the Court is to minimise or eliminate fallacious or anomalous situation emanating from the document particularly the will and not to embroil the parties in imbroglio of legal jargon. If there are two clauses in a will which appear to be irreconcilable and cannot stand together, it is the last covenant or the clause that shall prevail as the last clause or the covenant of the will is the last intention of a person executing the will. If the preceding clause confers any right which may be either absolute or limited that may be out of close relationship as that of husband and wife or out of love and affection or to protect the interest during one’s life time. That is not the last intention of the testator. What is relevant, and material is the last intention which is given effect to as this is the sole intention which is to prevail. In this case, if the property was bequeathed by Lakshmi Devi in respect of Clause 5, then Clause 6 which is the main clause shall have no meaning in spite of the fact that it was the last clause and last intention of the testator.

(iv) Gift: As per Section 122 of the Transfer of Property Act, 18827, gift is defined as the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the done and accepted by or on behalf of the donee. As per Section 1238 of the said Act, the transfer by way of gift must be affected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses, or by way of delivery.

The Madras High Court in Madras State Bhoodan Yagna Board, Madurai v. Subramania Athithan9, held that there is no provision as per the Hindu Succession Act for making gift of his interest in joint family property by a manager of a joint family, and as such Section 3010 of the said Act does not apply. The Court held as under:

  1. Mr Alagiriswami, appearing for the appellant, contended that the gifts made by the first defendant would be valid at least to the extent of his share in the joint family properties. His submission is that under the Hindu Succession Act, the first defendant is entitled to make a will of his property and if, on the death of the first defendant, such a will can take effect, there is no reason for not applying the same principles to a case of gift by the first defendant. It is true that Section 30 of the Hindu Succession Act confers power upon a member of a joint family to make a will in respect of his interest in the joint family property. But that principle cannot be extended to a case of a gift, which is a transaction inter vivos, unless the statute itself specifically recognises it. Section 4 of that Act which sets out the overriding effect of that Act merely provides that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in that Act. That Act has not made any provision for making a gift by a manager of a joint family of his interest in the joint family property and as such Section 30 does not avail to the appellant and we are clearly of the opinion that the gifts by the first defendant are invalid even as regards his interests in the joint family properties.

(v) Transfer of ownership: The rights of transferee from a co-owner are regulated by Section 4411 of the Transfer of Property Act, which provides that where one or more co-owners of the immoveable property transfers his share of such property or any interest therein, the transferee acquires the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce partition of the same, so far as necessary to give effect to the transfer, subject to conditions and liabilities affecting at the date of transfer.

(vi) Succession: In this regard, it has been held in several judgments that genuineness of will has to be established.

Further, inheritance is another method of acquisition of property. In respect of death of the owners, all rights belonging to the deceased are divisible into inheritable rights i.e., rights that survive their owner and devolve on his legal representative; and uninheritable rights i.e., rights which extinguish with the death of the person. Generally, devolution can take place wither by intestate succession, or by testamentary succession.

(vii) Exchange: Section 11812 of the Transfer of Property Act, 1882 defines exchange as a transaction where two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being define money only. Further, a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

The Andhra Pradesh High Court in Emana Veeraraghavamma v. Gudiseva Subbarao13, held that when the property inherited by a female is no longer available at the time of her death, there is no necessity of any further enquiry, as the property might have been exchanged with another property or the consideration of the same might have been used for acquiring another property. The Court held as follows:

  1. Now, while interpreting the said clause (a), it must be borne in mind that the female inheriting a property from her father or mother becomes the absolute owner of such property and that she can deal with it in such manner as he likes. If she alienates the property inherited by her. It cannot then be said, on her death, that the property inherited by her, is still available for devolution. We are of the opinion that the expression “property inherited by a female Hindu from her father or mother” occurring in this sub-clause must be given a restricted meaning consistent with the absolute right of disposition of the female owner. The special rule of succession applies only in case the very “property” inherited by a female from her father or mother is still available at the time of her death, otherwise, the rule does not apply….

Acquisition by Government:

Acquisition means taking not be voluntary agreement, but by authority of an Act of Parliament and by virtue of the compulsory powers thereby conferred. On acquisition of land by the Government, the land vests in the State free from all encumbrances. A person having any interest in such land can only claim compensation either from the State Government or from any person who might have collected the compensation in relation to such interest in the land. Apart from that, he cannot have any other right, much less occupation right, in such land once the same has been acquired by the Government.

Ownership by adverse possession:

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person’s title.

Section 2714 of the Limitation Act, 1963 and Articles 64, 65 and 112 of the Schedule15 to the said Act prescribe the period for law of adverse possession. Though the general rule of the law of limitation is that it is not meant to destroy the rights of the parties but it only fixes time period for the applicable legal remedy, however, Section 27 is an exception to the said rule, as reiterated in Ravinder Kaur Grewal v.  Manjit Kaur16, by the Supreme Court as under:

  1. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.
  1. We are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of the Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in praesenti to obtain it, not in futuro. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property. 
  1. The adverse possession requires all the three classic requirements to coexist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

Advocate and a qualified Chartered Accountant, presently practising at Supreme Court and Delhi High Court.

1 1979 SCC OnLine Cal 83

2 1920 SCC OnLine Pat 328.

3 <http://www.scconline.com/DocumentLink/UR00Q4f7>.

4 2001 SCC OnLine Del 1217.

5 2000 SCC OnLine Del 724.

6 2000 SCC OnLine Del 724.

7 <http://www.scconline.com/DocumentLink/8C6FCxUV>.

8 <http://www.scconline.com/DocumentLink/1g2Ix5QR>.

9 1972 SCC OnLine Mad 152.

10 <http://www.scconline.com/DocumentLink/6akYcyAr>.

11 <http://www.scconline.com/DocumentLink/a8wzkp3R>.

12 <http://www.scconline.com/DocumentLink/DGt9M4i5>.

13 1975 SCC OnLine AP 179.

14 <http://www.scconline.com/DocumentLink/s1bzqM79>.

15 <http://www.scconline.com/DocumentLink/t2W6ff2x>.

16 (2019) 8 SCC 729.

Case BriefsHigh Courts

Punjab and Haryana High Court: Anil Kshetarpal, J., while addressing the instant petition against the impugned order of Deputy Commissioner expressed that, “Compassionate empathy should be one of the trait/quality of everyone manning a public office. The persons holding such offices are required to be more sympathetic and compassionate while dealing with downtrodden and uneducated persons.”

 Facts of the case are such that, the petitioner was in possession of a small building and Haryana Wakf Board was owner of the land underneath that building. The grievance of the petitioner was that since level of the road, passing in front of the building, had been increased, therefore, rainy/dirty water started getting accumulated in the premises and the building had also developed certain cracks. In spite of several applications for permission to reconstruct the said building, no response had been received from the officials of Municipal Committee. Therefore, construction work was carried out by the petitioner, to which the Municipal Committee had sent a notice under Section 208 of the Haryana Municipal Act, 1973 (“the Act”) directing the petitioner to stop the construction and demolish whatever construction had already been carried out. The Petitioner again requested for approval and submitted a building plan, which was rejected on the grounds that the building plan had been filed without deposit of the required fee and the petitioner had failed to provide evidence of ownership. Consequently, the premise was sealed by the authorities. The petitioner filed an appeal before the Deputy Commissioner, which was dismissed with the finding that there was no error in the order of Municipal Committee.

The Court observed that, “the entire emphasise of the legislature while enacting the Haryana Municipal Act, 1973 was to encourage the residents to erect the buildings after getting the building plan sanctioned and if some buildings have been erected or re-erected in violation thereof and such construction is found within the permissible limits, then the construction should be regularised or the violation should be compounded and the officials are expected to deal with such violation with compassion in such matters.” The Court said, Municipal Committee had failed to draw attention of the Court to any requirement of law requiring a person who had applied for sanction of the building plan, to prove his ownership before the building plan could be sanctioned. Further, it was held that, till the time the petitioner continues to be in possession of the said land he is entitled to repair/ renovate/reconstruct the building existing therein. Setting aside the order passed by the Municipal Committee and affirmed by the Deputy Commissioner, the Court stated that sealing of the property was an undoubtedly arbitrary exercise of power. Hence, the petition was disposed of with further directions that the petitioner should submit a fresh application for post facto approval of the building plan within one month from the date of the judgment and the officials of Municipal Committee were directed to process the same in accordance with law within 6 months. [Devender Kumar v. State of Haryana, 2020 SCC OnLine P&H 2360, decided on 16-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that to prove the case under the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act), the ownership of the vehicle is not required to be established and proved.

The Court was hearing the case wherein accused were convicted for commission of offence under Section 20(b)(ii)(B) of the NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance – Ganja.  As per the case of the prosecution, 20 kg of Ganja was recovered from the possession of the appellant from the motorcycle. It was argued that the prosecution having failed to prove the ownership of the motorcycle (vehicle) and/or failed to recover the motor cycle   subsequently, vitiates the prosecution case.

Taking note of the fact that in the present case the appellant and the other accused persons were found on the spot with the contraband articles in the vehicle, the Court said that it is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Therefore, merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated, while the prosecution has been successful in proving and establishing the recovery of the contraband articles from the accused on the spot.

[Rizwan Khan v. State of Chhattisgarh, 2020 SCC OnLine SC 730, decided on 10.09.2020]

Case BriefsHigh Courts

Orissa High Court: Dr A.K. Rath, J. dismissed an appeal seeking to reverse a judgment relating to suit for declaration.

In the present facts of the case, the suit property was jointly recorded in the names of three cousin brothers, wherein the Odisha Record of Rights (ROR) had been published. The partition of the said property was effected amongst the members of the joint family by a registered partition deed and was allotted to one of the three cousin brothers, Baidhar. Due to the untimely death of the wife and son of Baidhar, he resided in the property with the plaintiff and out of love and affection, Baidhar executed a will in favour of the plaintiff. After the demise of Baidhar, the plaintiff became the owner in possession of the suit property. Erroneously, the R.O.R recorded jointly in the name of both the parties and thus, the plaintiff filed an application for declaration of suit. The Learned trial court dismissed the suit holding that the will was not probated and the plaintiff had not acquired by way of adverse possession. In the appeal proceedings, the appellate court also held that the plaintiff had failed to prove that he has perfected title by way of adverse possession and during the pendency of the appeal proceedings both the plaintiff and the respondent expired due to which their legal representatives had substituted.

During the present matter, the counsel representing the appellants, Sarojananda Mishra submitted that the plaintiff is in possession of the suit land for more than twelve years peacefully and as a result has perfected title by way of adverse possession.

The advocate representing the respondents, Stayabadi Mantry, objected to the same and submitted that the adverse possession is a mixed question of law and fact. Thus, the courts had rightly rejected the claim of the plaintiff. He placed reliance on the case of Nabin Chandra Mohanta v. State of Orissa, R.S.A. No. 396 of 2004 wherein the Court held that, “Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence”.

The present Bench upon perusal of the facts and the records stated that even if the plaintiffs are found to be in adverse possession, they cannot seek a declaration for the same. The Court also stated that the mere possession of suit property for a long period of time is not sufficient to declare the plaintiff has perfected the title by way of adverse possession unless the classical requirements of adverse possession are met and the question of adverse possession not only involves question of law but also involves question of fact. [Bairagi Charan Mohapatra v. Surendra Mohapatra, 2019 SCC OnLine Ori 303, decided on 01-08-2019]

Case BriefsHigh Courts

Gauhati High Court: Sanjay Kumar Medhi, J. dismissed an appeal filed against the judgment of the Additional Chief Judicial Magistrate whereby he had acquitted the accused-respondents of the charges under various sections of IPC including Section 447 (punishment for criminal trespass).

The complainant-appellant had alleged that the accused came in a group armed with sticks and spades, and they dispossessed the complainant from his plot of land. The accused were tried for various offences. The trial court, however, acquitted them of all the charges. Aggrieved thereby, the complainant filed the present appeal.

R. Goswami, Advocate, made contentions on behalf of the appellant. Per contra, A. Choudhary, Advocate, represented the accused-respondents.

The High Court noted that though the allegation of criminal trespass was made, the ingredients of criminal trespass did not appear to be made out. Also, a meeting was convened between the parties to decided the ownership of the subject land which was unsuccessful. Therefore, opined the Court: “In absence of a determination of ownership, the allegation of trespassing cannot be substantiated.” It was observed: “To bring home the charge of trespass, it has to be established that there has been unlawful entry upon a property which is in the possession of another and such unlawful entry should be with an intent to commit an offense or to intimidate, interested or annoyed possessor of the property.”

In the present case, there was no evidence to prove the aforesaid ingredients of trespass. It was also transpired that the parties were related to each other. In Court’s opinion, the impugned judgment being based on the reasons germane to the facts and circumstances of the case, the interference with the same was not warranted. The appeal was consequently dismissed.[Biswajit Paul v. State of Assam, 2019 SCC OnLine Gau 3011, decided on 25-07-2019]

Case BriefsHigh Courts

Karnataka High Court: The Bench of Krishna S. Dixit, J., allowed petition filed by a senior citizen challenging wrongful usurpation of his property.

Respondent herein had unauthorizedly appropriated petitioner’s land measuring 63,162 square feet without any acquisition process, for the formation of roads, parks. Petitioner was given no compensation for his land even after 16 years of acquisition. Aggrieved thereby, he filed the instant petition seeking restoration of his land and compensation of Rs 5 crores for illegal utilization of his land.

Petitioner’s contention was that respondent’s act was a gross violation of his constitutional right to property guaranteed under Article 300-A of the Constitution of India.

The Court took note of respondent’s resolution proposing to give 50 percent of the site area to petitioner and observed that instead of taking steps for implementation thereof, respondent passed another resolution stating that in view of one government order, petitioner would be granted 50 percent of the developed area, which was unconscionable. The second resolution was also not given effect.

It was opined that the institution of private property is the focal point of constitutional jurisprudence. Forcible or non-consensual taking away of property by the State or its instrumentalities, sans lawful acquisition process offends the pith and substance of Article 300-A which guarantees protection to private property from State interference. It was held that State and its instrumentalities cannot justify usurpation of private property without legal process on the ground that the same was for public use.

In view of the above, the respondent was directed to give ownership and possession of the developed area of subject land to the petitioner and pay Rs 1 lakh as damages.[P.G. Beliappa v. Bangalore Development Authority, 2019 SCC OnLine Kar 187, Order dated 01-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. dismissed an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of trial court’s order whereby prayer made by the petitioner regarding the release of a vehicle was dismissed.

In the instant case, OP-3 had filed a complaint alleging that opposite party 2 (OP-2) had taken a Scorpio vehicle belonging to him on the pretext of marriage in family assuring that he would return it. The vehicle was not returned and OP-3 was told by OP-2 that it had been stolen. OP-3 was assured that the vehicle would be located or OP-2 would pay him money for the same. On enquiring, OP-3 found that the vehicle had been allegedly sold to the petitioner and was with him. The vehicle was seized by the police pursuant to the lodging of FIR by OP-3.

The Court noted that the purported agreement of sale of vehicle relied upon by the petitioner was not even duly registered. Further, the certificate of registration for the vehicle was still in the name of opposite party 3.

It was held that the only document to prove ownership of a vehicle is a certificate issued by the transport department, i.e., the certificate of registration. Till such time the name of any other person is not duly entered in the official records and reflected in the certificate of registration with regard to the vehicle, vehicle could not be released in favour of a person who comes before with an unregistered agreement for sale of vehicle. [Md. Abdullah v. State of Bihar, 2019 SCC OnLine Pat 51, Order dated 17-01 2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and Indira Banerjee, JJ. allowed an appeal while setting aside the judgment and order of the Kerala High Court concerning a ‘gift deed’.

In the present case, the facts of the case are that the appellant executed a purported gift deed in favour of the respondent with the expectation that the respondent will look after the appellant and her husband. The said deed was to come into effect only after the death of the appellant and her husband. On 02-06-1999, the appellant executed the deed of cancellation and after a period of 8 months, respondent filed a suit for declaration that the cancellation deed executed by the appellant is null and void. Appellant filed original suit for permanent injunction restraining the respondent or his men from trespassing or committing waste or mischief in suit property.

The Original Suit was challenged before the Munsif, however, it was decreed. The district court upheld the decree, but the High Court set aside the concurrent findings and dismissed the suit.

The Supreme Court on placing the analysis of provisions of Transfer of Property Act along with the decisions pertaining to the same subject matter stated that:

“A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.”

On placing reliance on Reninkuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, in which it was stated that “there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property”, the Court stated that the deed of transfer was executed for consideration and was, in any case, conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. Therefore, the Court held that there was no completed gift of the property and the appellant was within her right in cancelling the deed.

The appeal was allowed and judgment and order under appeal were set aside. [S. Sarojini Amma v. Velayudhan Pillai Sreekumar,2018 SCC OnLine SC 2200, decided on 26-10-2018]