BISWANATH Vs. PRAFULLA KUMAR KHAN

JUDGEMENT

(1.) A Company which was a thika tenant under the plaintiff-appellants in respect of the disputed land, has been dissolved. Would the tenancy stand extinguished and the land revert to the landlords or would the tenancy vest in the State by escheat or as bona vacantia ? These are the questions that have arisen for our consideration in this second appeal and having considered them with the very able assistance from the learned counsel for the parties, we propose to return a negative answer to the first question and an affirmative answer to the second.

(2.) So far this Court is concerned, it was observed by P.B. Mukharji, J. (as his Lordship then was) in U.N. Mandal's Estate Pvt. Ltd. AIR 1959 Cal 493 at p. 498 that "the assets of a dissolved Company are not without owner" as "the State takes them over". It was pointed out further that though there is no provision in the Indian Companies Act, corresponding to S.354 of the English Companies Act of 1948, providing expressly that the property of a dissolved Company would be bona vacantia, the position was not different as in England also the doctrine of bona vacantia applied to the property of a dissolved company independently of, and, for the matter of that, even before the enactment of, such Statutory provisions. 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, (1859-61) 8 Moo Ind App 500 at PP. 525, 526, 527.

(3.) Not that such a doctrine was unknown in India for our ancient law-giver Manu, for example, declared more than 2000 years ago thus in Manusawhita (Chapter IX, Verse 189) Aharajyam Brahmanadravyam Rajna Nityamiti Sthiti, Itareshantu Varnanam Sarbabhave Harenripa. This, 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. The Privy Council, however, observed in Collector of Masulipatam, (8 Moo Ind App 500) (supra, at p. 525) that though under the British legislations. 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, some times 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.