Constitutional Law - Doctrine of bona vacantia or Escheat and the Constitution of India

Definition

Black’s Law Dictionary defines ‘escheat’ as:

1. The reversion of land ownership back to the lord when the immediate tenant dies without heirs.

2. Reversion of property (especially real property) to the state upon the death of an owner who has neither a will nor any legal heirs.

3. Property that has so reverted.

Thus we see that Doctrine of Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or the state. It serves to ensure that property is not left in ‘limbo’ without recognized ownership.

Doctrine of Escheat also finds mention in Article 296 of the Constitution.

“Article 296 – 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.”

Doctrine of Escheat or bona vacantia in India

The Doctrine of bona vacantia or Escheat was declared to be a part of the law in India by the Privy Council as early as in 1860 in Collector of Masulipatam v. Cavary Vancata Narrainappah[1]. This case also held that 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”.

The 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 such as Section 29 of Hindu Succession Act sometimes expressly recognise 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[2].

The case of Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare[3] categorically states that:

“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". And relying on this decision, the Supreme Court in Narendra Bahadur Tandon v. Shanker Lal[4], has reiterated that "in India the law is well-settled that 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" and that "if the Company had a subsisting interest in the lease on the date of dissolution, such interest much necessarily vest in the Government by escheat or as bona vacantia.”

It is not only the tangible property that comes within the ambit of Doctrine of Escheat or bona vacantia. The word ‘property’, when used without any qualification or limitation, as above, is a term of the widest import. In the case of J.K. Trust v. Commissioner of Income Tax[5], it was stated that “Property signifies every possible interest which a person may acquire”. There should, therefore, be no doubt that the expression ‘property’ used without any qualification or limitation would even include a tenant's interest in the demised land or premises. The interest of a Tenant is usually heritable as well as transferable and it would be trite to say that only owner of a property, however limited, can transfer or transmit the same[6]. This reasoning was upheld in the case of Municipal Corporation of Greater Bombay v. Lala Pancham[7], wherein it was held that the tenant has, under the Transfer of Property Act or the Rent Control Legislations, an interest in the demised premises which would squarely fall within the expression ‘property’.

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[1] (1859-61) 8 Moo Ind App 500 at PP. 525.

[2] Biswanath Khan And Ors. v. Prafulla Kumar Khan, AIR 1988 Calcutta 275.

[3] AIR 1969 SC 843.

[4] AIR 1967 Allahabad 405. This ruling was upheld by the Supreme Court in AIR 1980 SC 575.

[5] AIR 1957 SC 846.

[6] AIR 1988 Calcutta 275.

[7] AIR 1965 SC 1008.