1. The State of Gujarat has filed this appeal under the following circumstances.
2. There is a temple situate in Hanuman Pole in Wadi area of Baroda city. One Atmaramdasji was of that temple until he died on 4th October, 1947. He belonged to Ramanandi sect. He was a Nisangi (bachelor). According to the plaintiff, he has been the disciple or Shishya of the late Atmaramdasji who initiated him as a Shishya on 19th December, 1946. According to him, though he was initiated as a Shishya on 19th December, 1946 he was declared as a Shishya by Atmaramdasji on 23rd April, 1947, in the presence of Sadhus, Mahants and other disciples of the sect. He also underwent all ceremonies which were required for becoming a Shishya. He had performed the obsequial ceremonies of Atmaramdasji upon the latter's death and had lit the funeral pyre of the deceased. He, therefore, in his capacity as the Shishya of Atmaramdasji claims to be his lawful heir.
3. On 9th October, 1947 one Sevadas Keshavdas and Maganlal Jagannath made an application to the District Magistrate, Baroda stating that Atmaramdasji had expired without leaving any heir and that under the provisions of the Baroda Nivarsi Niyam which was then in force the State should take over all the properties of Atmaramdasji. At the instance of the District Magistrate, Baroda investigation was made by the Second Class Magistrate, Baroda. At the conclusion of the investigation he found that the plaintiff was a Shishya of Atmaramdasji and, therefore, his heir. He made his report to the District Magistrate at Baroda under whose orders he had made the inquiry. The District Magistrate set aside the conclusion recorded by the Second Class Magistrate. A Revision Application was filed against that order of the District Magistrate in the High Court of Baroda which refused to entertain it and directed the matter to be sent to the District Judge at Baroda for a summary inquiry under the Baroda Nivarsi Niyam. Thereafter the Baroda State merged with the then Bombay Province. The matter, therefore, went to the Civil Judge, Senior Division at Baroda who decided that the plaintiff was not a Shishya of Atmaramdasji and, therefore, not his heir. A Civil Revision Application was filed against that order in the High Court at Bombay. It allowed it because the Civil Judge, Senior Division had no jurisdiction to make inquiry under the Baroda Nivarsi Niyam. It sent the matter back to the District Judge at Baroda who again held a summary inquiry and recorded the conclusion that the plaintiff had failed to prove that he was the Shishya of Atmaramdasji. The Baroda Nivarsi Niyam provided that any person who was aggrieved by an order made under the said law could file a suit within one year. The Plaintiff, therefore, filed the present suit and prayed for (1) a declaration that the order of the District Judge, Baroda in the summary inquiry is illegal and void, (2) a declaration that he is the only Shishya or Chela of Atmaramdasji and as such his heir entitled to his properties, (3) a permanent injunction restraining the defendant State from interfering with his Possession of the Properties mentioned in Schedule 'A' to the plaint and (4) a declaration that he has become the owner of the properties mentioned in Schedule 'B' to the plaint. The State had earlier taken over the properties mentioned in, Schedule 'B' to the plaint. He did not seek any decree for possession against the State in respect of the said properties.
4. In defence the defendant-State contended that the properties were taken over by the State after they were declared to be Nivarsi (heirless) under the Baroda Nivarsi Niyam and that they had vested in the State. The next contention which it raised was that since the State had taken over possession of the properties mentioned in Schedule 'B' a suit for a mere declaration in respect of those properties without praying for their possession is not maintainable. The third contention which is raised was that if the suit was held to be maintainable, it ought to have been valued at several lacs of rupees and court-fees should have beer paid on that amount. On merits it contended that the plaintiff was not a Shishya of Atmaramdasji.
5-7. * * * * * * * * * *
8. Mr. Nanavaty, appearing for the defendant-State, has raised before me the following contentions:
1. The summary inquiry held by the District judge, Baroda was valid and lawful.
2. The properties mentioned in Schedule 'B' to the plaint have vested in the State and the State is in possession. Therefore, the suit for a mere declaration without praying for consequential relief as to possession is not maintainable.
3. Valuation of the subject-matter of the suit exceeds Rs. 10,000/-. Therefore, the plaintiff's appeal to the District Court was not competent.
4. The plaintiff ought to have paid court-fees on the valuation of Rs. 5,40,615. It is a figure found by the trial Court.
5. The learned Appellate Judge has erred in not giving due weight to the reasons given by the learned trial Judge for disbelieving the plaintiff's evidence and has erred in accepting the evidence led by the plaintiff.
9-12. * * * * * * * * * * *
13. The second contention which Mr. Nanavaty has raised relates to the maintainability of the suit. According to him, the properties specified by the plaintiff in Schedule 'B' to the plaint have vested in the State and the State has been in possession thereof. It was, therefore, necessary for the plaintiff to pray for their possession. He could not pray for a mere declaration. The learned Appellate Judge has held not on evidence but on a review of the provisions of the Baroda Nivarsi Niyam that what the State calls its possession is not its possession but is a mere custody. In his opinion, therefore, the Provisions of Section 42 of the Specific Relief Act, 1877 by which the suit was governed at the date of its institution did not hit the suit. It is necessary to turn to the language of Section 42 in order to determine the exact nature of the controversy. Section 42 provided as under:
'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make , any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.' Mr. Nanavaty has placed great and vehement reliance upon the proviso while contending against the maintainability of the suit. The Explanation to Section 42 is not relevant for the purpose of the present case. Within the meaning of the proviso to Section 42. I have to decide three things : - (1) whether the facts and circumstances of the case require the plaintiff to seek any further relief, (2) whether the plaintiff is able to seek that further relief and (3) whether the plaintiff has omitted to do so. It is in light of these three propositions which, in my opinion, emerge from the proviso to Section 42 that I have to answer the contention raised by Mr. Nanavaty.
14. Mr. Nanavaty has referred me to several provisions of Baroda Nivarsi Niyam officially translated by the Baroda State as Rules relating to Unclaimed Property. The expression 'Unclaimed Property' has been defined by Rule 3 (4) in the following terms.
'The term 'Unclaimed Property' shall mean the Property of an intestate person not leaving or not known to have left a lawful heir and shall include property of which the owner
(a) has absconded, or
(aa) is not known.'
Rule 5 to which reference has been made provides as follows:
'The Patel of a village or if there is a Police station in such village, the Naib Fauzdar in charge of station
(k) shall make, subject to the provisions of sub-section (2), a Panchakyas about
(a) any unclaimed property or -any portion thereof found in such village, or
(aa) any property which prima facie appears to be unclaimed and
(kh) shall cause proper watch to be kept on such property without removing the same, and
(g) shall report to the Magistrate having jurisdiction and also send him the Panchakyas, if any.
(2) Nothing herein contained shall be deemed to preclude a watch only being kept on property without a Panchkyas being made under clause (k) of sub-section (1), if it is possible to do so without entering the house of a deceased person.' This is the Rule upon which reliance has been -placed by both the sides. Whereas Mr. Nanavaty has tried to argue that the watch contemplated by Rule 5 must be read in light of other Rules, Mr. Mehta has contended before me that it leads to an inevitable inference that at the most the State takes into its custody the unclaimed properties. Rule 6 provides for procedure to be adopted by the Magistrate. It Provides that 'when a Magistrate is informed' by a report ' or otherwise or has reason to believe that any unclaimed property is existing in any place, he shall proceed to that place and may order the Patel or the Naib Fauzdar to prepare a list thereof', if the property is movable, and to hand over the property to himself, or may order the property to be 'properly watched,' if the property is immovable. It also lays down the procedure when-property is found in possession of a stranger. If the property which is alleged to be unclaimed is in possession of a stranger and if the Magistrate is satisfied that he is not in lawful possession thereof, he shall allow the property to remain in the possession of such person until final disposal, provided that proper security is furnished in respect thereof. If the person in possession does not furnish the required security, the Magistrate shall take 'possession' of the property . Whereas sub-rule (1) of Rule 6 contemplates a proper watch, sub-rule (2) of Rule 6 contemplates the taking of possession. Rule 7 provides that the Magistrate, after fixing the approximate value of the unclaimed property under the foregoing Rule shall send a report-in writing to the competent Judge for an inquiry under Rule 8. Sub-rule (2) of Rule 7 specifies the particulars which are to be mentioned in such a report. Rule 8 lays down -procedure for the inquiry in respect of unclaimed property. Sub-rule (1) requires the issue of a notification requiring the heir or heirs to appear within two months, if the property is worth not more than 10 rupees or within six months if the property is worth more than ten rupees. Sub-rule (2) prescribes the contents of such a notification. Amongst others, it requires the notification to state that the Government has taken over the 'possession' of the property. Sub-rule (3) requires particulars of individual items of unclaimed property to be mentioned in the notification in certain cases. Subrule (4) lays down the manner of publishing the notification. Sub-rule (5) provides that if a person claiming to be the heir of the deceased appears, the Judge shall make a summary inquiry into the claim and if he is satisfied that the claimant is the heir of the deceased, he shall order the property to be handed over to him after deducting all the expenses incurred on account of such property. Subrule (5) of Rule 8 is a provision upon which Mr. Mehta has relied in order to bring home his argument that the State is bound to deliver the possession of the property to the plaintiff if the plaintiff's title to it is proved. According to his contention, therefore, it is not necessary for the plaintiff to make a prayer for possession. Sub-rule (6) requires the production of a succession certificate in certain cases. Sub-rule (7) lays down procedure when no heir appears. Sub-rule (8) lays down that the Magistrate shall carry out the orders relating to handing over the property made under sub-rules (5), (6) or (7). Sub-rule (9) lays down procedure when an appeal is proposed to be filed. Sub-rule (1) provides for procedure when property cannot be handed over under sub-rule (7). Rule 9 lays down procedure when there is no heir is not relevant for the purpose of the present case. Rule 10 empowers the Magistrate to sell the property by auction under the circumstances mentioned therein. Rule 11 provides for appointment of manager of property which cannot be taken in 'possession'. It lays down that when it appears to the Judge from an application in writing made by a party or person interested that a person has died at a place within his jurisdiction and that there is no other person legally entitled to take possession of his property or that a person so entitled is not willing to take possession thereof, or that the heir or heirs of such deceased person is or are not fit to manage the property owing to minority, insanity or other disability and that no other near relative of the deceased is willing to receive the property or that owing to a dispute between two or more claimants as to succession none of them has taken possession of the property, or that the apparent legal heirs of the deceased have not taken possession of the Property owing to a dispute between them and that the Judge is empowered under the said Rules to make an inquiry concerning such property, he shall appoint a manager, with full or limited power over the property and shall order the costs of such appointment to be borne by the property and shall give a certificate to that effect to the person so appointed. Sub-rule (2) provides for delivery of property to the rightful heir under the circumstances mentioned therein after the manager has 'taken possession' of the property. Rule 20 provides for appeal and period of limitation. Mr. Mehta has relied upon sub-rule (4) of Rule 20 which provides that nothing contained in Rule 20 shall be deemed to preclude any person from seeking relief in a Civil Court against any order or decision made under these Rules. He has contended on the strength of sub-rule (4) of Rule 20 that what the plaintiff is bound to pray for is the relief against the order or decision made under the said Rules. Relying upon this provision in Rule 20 he has contended that the plaintiff is not bound to Pray for anything more. It is for the plaintiff to decide what reliefs he should pray for. If he prays for the reliefs of setting aside the order made in a summary inquiry under the aforesaid Rules, the Court deals with that relief. But if he prays for anything further the Court has got to take into account whether that further prayer is maintainable or not. On reading these Rules I have no doubt in, my mind that the State takes over the possession of the unclaimed property where there is no lawful heir and returns it to a lawful heir if one is found or if someone establishes his claim to be the lawful heir of that property.
15. The cumulative effect which the Rules quoted by me above produce is that the State enters into possession of properties which are alleged to be unclaimed properties. If ' the State is in possession, it is necessary for the plaintiff within the meaning of Section 42 of the Specific Relief Act, 1877 to pray for a consequential relief of possession. He cannot maintain a suit for a declaration simpliciter. Firstly, the facts and circumstances of the case show that it is necessary for the plaintiff to pray for possession. Secondly,, they show that the plaintiff is able to pray for possession and thirdly, they show that the plaintiff has omitted to do so. In my opinion the control of the State over the properties mentioned in Schedule 'B' does not amount to custody. It amounts to possession. Assuming, however, that I am in error in recording this conclusion on reading the aforesaid Rules and if it is held that the properties mentioned in Schedule 'B' are in mere custody of the State, it is even then necessary for the plaintiff to seek their possession. The expression 'custody' has not been used in Baroda Nivarsi Niyam. Mr. Mehta has tried to infer from several provisions that the State has taken into its custody the suit properties and has tried to distinguish custody means such a relation towards a thing or things as would constitute possession if the person having custody had it or them on his own account. It implies actual physical control of the Property.
16. Now, if a defendant is in actual physical control of the properties which a plaintiff claims, if he resists the plaintiff's title to them and if he claims that the properties have vested in him, as the defendant-State contends in the instant case, it is absolutely necessary for the plaintiff to pray for possession. A suit, seeking a mere declaration in a case where it is necessary for him to seek possession and where he is able to seek it, it is not maintainable. I, therefore, hold that the plaintiff's suit, in so far as it relates to declaration of his title to the properties mentioned in Schedule 'B' to the plaint, is hit by proviso to section 42 and is, therefore, not maintainable. The object of the proviso is to prevent multiplicity of suits and to obtain a decision once and for all. It need not be forgotten that the controversy in the present suit relates to the title to the properties. The defendant-State claims that the suit properties have vested in it. The plaintiff's title to them is on the aforesaid ground challenged by it and, therefore his possession of the properties, specified in Schedule 'A' is also challenged. Next, it should also be borne in mind that the suit properties were declared Nivarsi or unclaimed or heirless by the District judge, Baroda in the summary inquiry made under the said Baroda Rules. Therefore, also the suit properties vested in the State. The vesting is complete. The State can be divested of the suit properties only on the proof of the plaintiff's title to them and on his seeking their possession. It is therefore clear that a large number of suit properties are in actual physical control of the defendant who challenges the plaintiff's title. In the said Baroda Rules there is no specific or express Rule directing or obliging the State to return the properties to the plaintiff if he succeeds in the suit. If the plaintiff had succeeded in the summary inquiry which preceded the present suit, the District Judge would have certainly directed that possession of the suit properties be handed over to the plaintiff. That stage is gone. After the conclusion of the suit the Court which held the summary inquiry cannot direct the delivery of the suit properties to the plaintiff. Viewed from this angle also it is absolutely not necessary for the plaintiff to pray for possession of the properties mentioned in Schedule 'B' to the plaint. In light of the provisions contained in the said Baroda Rules and in light of the defences which difficult to say that the State has not taken possession of the properties mentioned in Schedule 'B' to the plaint and that it has taken them only under what is called 'protective custody'.
17. Mr. Mehta, appearing for the plaintiff, has made a very strenuous attempt before me to distinguish between 'custody' and 'Possession'. I have not been able to appreciate that effort of his. Driven by the desire to make this distinction he ha s cited a number of decisions and some law books in order to pinpoint to me the distinction between 'escheat' and 'bona vacantia'. I have not been able to appreciate how the concept of 'escheat' or the concept of 'bona vacantia' can be resorted to when the controversy in the instant case is governed by statutory provisions viz., Baroda Nivarsi Niyam made and promulgated by the then sovereign Ruler of Baroda. In my opinion, the concepts of 'escheat' and 'bona vacantia' and the distinction between them cannot override the said Baroda Rules nor can they help me in determining whether proviso to Section 42 governs the present suit or not. In my opinion, proviso to Section 42 is so far away from the concept of 'escheat' and the concept of 'bona vacantia' that it is difficult to discover any relationship between them in the facts and circumstances of the present case. Secondly, it is always hazardous to resort to the concepts of 'escheat, and 'bona vacantia' - uncodified as they are - in order to judge or understand the concept which emerges out of the statutory provisions the Baroda Rules. Therefore though I believe that the arguments which Mr. Mehta has advanced before me on the concepts of 'escheat' and 'bona vacantia' are totally irrelevant for the purpose of the present case I make a brief reference to them out of sheer deference to him.
18. 'Escheat' and 'bona vacantia' find their place in Article 296 of the Constitution. A property accrues to the State by escheat or on account of bona vacantia if it would have accrued to His Majesty or to the Ruler of an Indian State by 'escheat' or lapse, 'or as 'bona vacantia' for want of a rightful owner. The distinction between the two has been explained in Halsbury's Laws of England, Third Edition, Volume 16 in paragraphs 830, 831 and 832 and in paragraph 781 of the same volume 'bona vacantia' has been explained. In case of bona vacantia the Crown takes the residuary estate of the intestate as 'bona vacantia', and in lieu of any right to escheat. It does so by statutory and not by Prerogative right. In paragraph 782 it has been stated that the right of the Crown to take as 'bona vacantia' would be defeated if the personal representatives or any other person succeeded after the death of the in, testate in obtaining a first registration of land forming part of the intestate's estate. In Halsbury's Laws of England, Third Edition, Volume 7 the expression 'bona vacantia' has been defined in paragraph 1152. It states as under:
'The term bona vacantia is applied to things in which no one can claim a property, and includes the residuary estate of persons dying intestate and without husband or wife or near relatives, wreck, treasure trove, waifs, and estrays, and all property and rights of a dissolved corporation, but not goods lost or designedly abandoned, the property in which is vested in the first finder and is good against all, except the true owner in the case of goods lost. Bona vacantia extends to an equity of redemption of leaseholds.
The property in bona vacantia is vested in the Crown to prevent the strife and contention to which title by occupancy might otherwise give rise.'
In paragraph 1153 it has been stated as, follows:
'In default of any person taking an absolute interest in the residuary estate of an intestate it belongs the Crown .......... the Duchy of Lancaster as bona vacantia in lieu of escheat; provision may be made for dependants of the intestate out of property so devolving and in accordance with the existing practice.'
19. He has invited my attention to the decision of the Supreme Court in Bombay Dyeing & ' v. State of Bombay, AIR 1958 SC 328. It was a case of unclaimed wages under the Bombay Labour Welfare Fund Act, 1953. It was contended by the State of Bombay that the-said legislation was, in substance, one in respect of abandoned Property. The Supreme Court dealt with the expression 'abandoned property' and observed as under:
'The expression, 'abandoned property' or to use the more familiar term 'bona vacantia' comprises properties of two different kinds, those which come in by escheat and, those over which no one has a claim.'
Thereafter, a part of paragraph 1152 from Vol. 7 of Halsbury's Laws of England, Third Edition ,has been quoted by the Supreme Court. While dealing with the question on the basis of common law of England it has been observed that at common law, abandoned personal property could not be the subject of escheat but that it could only be appropriated by the Sovereign as bona vacantia. The principle underlying such a law was that the State might more properly, be custodian and beneficiary of abandoned property than any other Person. It has been further observed by the Supreme Court that the purpose of a legislation with respect to abandoned property is, in the first instance, to safeguard the property for the benefit of the true owner and that the State takes it over only in the absence of such claims. A law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.
20. The next decision which he has cited before me is in Supdt. and Remembrance of Legal Affairs, West Bengal v. Corporation of Calcutta, AIR 1967 SC 997 = (1967 Cri LJ 950). He has relied upon the observations made by the Supreme Court in paragraph 48 of the report. It has been observed in that decision that 'when there is a failure of heirs on a person dying intestate, the Crown had the prerogative right to take his 'property by escheat, and this right was said to rest on grounds of general or universal law.' This right has now been recognized by our Constitution.
21. The third decision to which he has invited my attention is in M/s. Pierce Leslie and Co. Ltd. v. Miss Violet Ouchterlong Wapshare, AIR 1969 SC 843. Dealing with the concept of escheat it has been observed by their Lordships that in India the Government takes by escheat immovable as well as movable property for want of an heir or successor. Escheat is not based on artificial rules of common law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction. If private ownership does not exist, the State must be owner as ultimate lord. The right of escheat belongs to the Government only. The Government has the right to take all property within its jurisdiction by escheat for want of an heir or successor and as bona vacantia for want of a rightful owner. Therefore the property of an intestate dying without leaving lawful heirs, and the property of a dissolved corporation passes to the Government by escheat or as bona vacantia. The property taken by escheat or as bona vacantia belongs to the Government, subject to trusts and charges, if any, previously affecting it. It was this incident of sovereignty of the' former Ruler of Baroda which finds expression in the said Baroda Rules. The distinction between escheat and bona vacantia, in my opinion does not have any significance so far as the applicability or otherwise of proviso to Section 42 is concerned. For having omitted to pray for possession as a consequential relief, following into the foot-steps of declarations sought by him in respect of the suit properties mentioned by him in Schedule 'B' to the, plaint, the plaintiff's claim in that behalf must fail.
22-46. * * * *
47. Appeal allowed.