6.2. The grant of probate by a competent court of law can be assailed only by those who are the likely heirs if the Will is to fail, by either filing an appeal against it or by seeking revocation of the grant of probate under Section 263 of the IS Act, 1925. Further, it is only when there is failure of heirs that the estate of an intestate Hindu would devolve on the Government under Section 29 of the Act. This means that till that stage arrives, the Government is a stranger to the probate proceedings as well as any proceeding regarding succession under the personal law. Merely because the State of Rajasthan in the instant case has invoked the Rajasthan Escheat Regulation Act, 1956, would not give locus standi to assail the grant of probate of the Will of the testator. Hence, we have considered the locus standi of the State of Rajasthan to file these special leave petitions as a preliminary issue in these Special Leave Petitions.
6.3. In view of the above, we find that the State of Rajasthan in the instant case has no locus standi to challenge the judgment of the Division Bench of the High Court on the strength of the escheat of the properties of the testator. Section 29 of the Act does not apply in the instant case as this is not a case of intestate succession but one of testamentary succession as probate of the Will has been granted by High Court.
6.4. We may also mention that in the event the probate has been granted illegally to the legatees of a Will inasmuch as the Will itself is not a valid Will, then under Section 263 of the IS Act only the persons who could have succeeded, by the Will being declared invalid namely, the successors under the Act, as per Section 8 thereof could have filed an application under Section 263 of the IS Act for revocation of the grant of probate and none else.
6.5. In other words, we clarify that it is only in the event of intestate succession, Section 29 of the Act applying that there would be a devolution of the estate of a deceased male Hindu on the Government and not otherwise. Since such a situation does not arise in the instant case, as probate of the Will of testator has been granted by a competent Court of law; this is a case of testamentary succession.
In the Supreme Court of India
(Before B.V. Nagarathna and Satish Chandra Sharma, JJ.)
SLP (C) No(s). 14721-14723/2024
State of Rajasthan Vs Ajit Singh and Others
Decided on September 1, 2025
Citation: 2025 SCC OnLine SC 1992
ORDER
The State of Rajasthan has preferred these Special Leave Petitions assailing the common judgment of the High Court of Delhi at New Delhi passed in FAO(OS) No. 347/2012 & CM APPL. Nos. 15602/2013, 20920/2022, 47492/2022; FAO(OS) No. 348/2012, CM APP. Nos. 46546-47/2022 & 3579/2023; and FAO(OS) No. 211/2013.
1.1. FAO(OS) No. 349/2012 was filed by the petitioner-State of Rajasthan impugning the judgment to the extent that the trustees of the Khetri Trust, who were the appellants in FAO(OS) No. 347/2012, were permitted to be impleaded.
1.2. By the impugned common judgment, the High Court has set aside the judgment of the learned Single Judge. Consequently, it has upheld the validity of the Will executed at Tis Hazari Court, New Delhi on 30.10.1985 by the testator, Late Raja Bahadur Sardar Singh of Khetri in the presence of two witnesses, Sri P.N. Khanna and Sri R.K. Singh. The High Court has also held that there has been compliance with Section 63 of the Indian Succession Act, 1925 (for short, “IS Act”) and the Will has been proved in accordance with Section 68 of the Indian Evidence Act, 1872 (“Evidence Act”, for short). As a result, the probate of the Will has been granted by the High Court.
1.3. The said order is sought to be assailed by the State of Rajasthan on the premise that the properties of the testator have been escheated. The locus standi of the State Government to assail the order of the Division Bench of the High Court is a preliminary question which has to be considered.
2. In State of Rajasthan v. Lord Northbrook, (2021) 16 SCC 400 (“State of Rajasthan”), the facts are that Sri Raja Sardar Singh, (aforesaid testator) had died on 28.01.1987 without any legal heir. However, he had executed a Will on 30.10.1985 and a Codicil on 07.11.1985. On the basis of the Will/Codicil, a trust called “Khetri Trust” was constituted with four trustees. Based on the Will, one Parmeshwar Prasad and the trustees of the Khetri Trust filed a testamentary case seeking probate of the Will as well as the Codicil. The agnates of Sri Raja Sardar Singh (testator) raised objections against the grant of probate. When the matter was pending before the learned Single Judge of Delhi High Court, it was stated that the Rajasthan Escheats Regulation Act, 1956 had already been invoked and the State of Rajasthan had taken possession of some of the properties of the testator. The learned Single Judge of the Delhi High Court dismissed the Testamentary Case No. 26 of 1987 and held that it was for the State of Rajasthan to decide in accordance with law in pursuance of the proceedings taken under the Rajasthan Escheats Regulation Act, 1956. The executors of the Will/trustees preferred an appeal against the said judgment before the Division bench of the Delhi High Court. By the impugned common judgment, the probate of the Will/Codicil of the testator (Sri Raja Sardar Singh) has been granted. It is against the said common judgment that the State Government has preferred these Special Leave Petitions.
2.1. In the aforesaid case, which was an appeal which arose out of judgment dated 17.11.2016 passed by the High Court of Rajasthan (Jaipur Bench) in Parmeshwar Prasad v. State of Rajasthan, 2016 SCC OnLine Raj 10218, the High Court had quashed the communication/orders with regard to the taking over of the properties of Sri Raja Sardar Singh (testator) by the State of Rajasthan under the Rajasthan Escheats Regulation Act, 1956. There is a reference to a larger Bench owing to divergent opinions of Banumathi and Indira Banerjee, JJ.
2.2. While Banumathi J. has opined that since Testamentary Case No. 26 of 1987 then pending before the High Court of Delhi for grant of probate of the Will, has been dismissed by the learned Single Judge and the testamentary appeal is pending before the Division Bench, “there is no rightful owner as per the Will”. Her Ladyship further observed that having withdrawn the objections in the probate proceedings, respondent Nos. 5 to 9 therein were estopped from making any claim in the property of Sri Raja Sardar Singh till they established their right in the court of law.
2.3. On the other hand, Indira Banerjee, J. opined that the judgment and the order dated 03.07.2012 dismissing Testamentary Case No. 26 of 1987 was of no consequence. This is because even if the Will fails, the property has to be treated as intestate which devolves upon the natural heirs in accordance with the applicable laws of succession. That the dismissal of the probate case might mean that the Trust cannot claim over the testator's properties. “However, that does not make the properties escheated properties”. In this context, Her Ladyship referred to Sections 8 to 13, 29 and 30 of the Hindu Succession Act, 1956 (for short, “the Act”) as well the definition of “agnate” and “cognate” in Sections 3(1)(a) and 3(1)(c) respectively of the said Act and observed in paragraphs 109, 116, 117, 118, 119, 120, 122 and 125 as under:
“109. Under Section 29 of the Hindu Succession Act, the property of an intestate devolves on the Government, if the intestate has left no heir qualified to succeed to his or her property, in accordance with the provisions of the Hindu Succession Act. The Government is to take the property subject to all obligations and liabilities to which an heir would have been subject.
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116. There were claimants who objected to the grant of probate. Even though these objectors might have withdrawn their objections to the grant of probate, whatever be the reason, they did not resile from their claim to be heirs of Raja Bahadur under the Hindu Succession Act.
117. The withdrawal of an objection to grant of probate tantamounts to withdrawal of the grounds of objection to the will and/or in other words, retracting the allegations of the will being procured, forged, fabricated, fraudulent or created by exercise of undue influence.
118. The caveators who objected to grant of probate to the will might very well have been advised not to proceed in view of the weakness of their case, or may be for other reasons. That would not make any difference to their status as agnates or cognates of the deceased testator.
119. In fact, even the ultimate failure of the probate proceedings or in other words, dismissal of the appeal would not attract the provisions of the Escheats Act, unless there was a clear finding that Raja Bahadur left no agnates or cognates and there was complete failure of heirs. Once there were some heirs in the picture, it was not for the appellants to protect the properties of Raja Bahadur. It was for the rightful heirs to recover the properties from those in possession thereof.
120. The mere failure of an application for probate would not attract escheats. When a will is not probated, the testamentary property is to be deemed to be intestate property and would devolve upon successor, if any, as per the general laws of succession. Unless there were complete failure of heirs, the Escheats Act would not be attracted.
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122. The condition precedent for initiation of proceedings under the Escheat Act is failure of heirs. In the absence of any finding of failure of heirs, proceedings could not have been initiated. Under Section 4, it is the duty of the Tahsildar to see that there is no one entitled to the property. The proviso clearly prohibits the taking over of property or disturbance of possession thereof, if the property is in the possession of anyone.
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125. Significantly, in this case, the proceedings under the Escheats Act were initiated and the orders/communications impugned in the writ petition were issued, without any finding of complete failure of heirs. In the absence of formation of the opinion of failure of heirs, the proceedings initiated under the Escheats Act were wholly without jurisdiction.”
2.4. A reading of the aforesaid observations would clearly indicate as to when Section 29 of the Act would apply. Merely because Testamentary Case No. 26 of 1987 was dismissed by the learned Single Judge on the premise that the proceedings under the Rajasthan Escheat Regulation Act, 1956 had been initiated by the State of Rajasthan would not imply that there was no rightful owner of the testator's properties.
3. In this regard, Sri S.V. Raju, learned senior counsel appearing for the petitioner submitted that there is already a judgment of this Court in Civil Appeal No. 6677 of 2019 (State of Rajasthan v. Lord Northbrook) dated 28.08.2019 that had arisen with regard to the very same subject properties. He therefore submitted that since there has been escheat of the properties of the testator, the State of Rajasthan has the locus standi to assail the judgment of the High Court wherein the probate has been granted to the legatees of the Will of the deceased testator.
3.1. On the other hand, learned senior counsel for the respondents have objected to the very locus standi of the State of Rajasthan to file these Special Leave Petitions.
4. It is elementary that if the Will fails then intestate succession under the personal law as applicable to the testator (the Act in the instant case) would apply. It is only when there is failure of heirs, under the Act that Section 29 of the said Act would apply and the estate of the intestate would devolve on the Government, which would take the property subject to all obligations and liabilities to which an heir would have been subject.
5. In this regard, we firstly refer to Section 29 of the Act, which reads as under:
“29. 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.”
5.1. Since the deceased testator was a male Hindu, Section 29 of the Act would apply if there is a failure of heirs on the death of an intestate individual who has left no heir qualified to succeed to his property in accordance with the provisions of the said Act. In such an event, the property would devolve on the Government and the Government shall take the property subject to all obligations and liabilities to which an heir would have been subject to. Thus, the doctrine of escheat or bona vacantia would apply under Section 29 of the Act in the above circumstances.
5.2. However, when the male Hindu dies upon making a testament or a Will, the provisions of the IS Act, would apply. If the Will is probated or proved before a competent court of law, then the legatees under the Will would succeed to the demised testator's properties. However, if the Will is held to be invalid by a competent court of law and there is also a failure of heirs, then in terms of Section 29 of the Act, the State will have the right to apply the doctrine of escheat and the properties of the deceased testator would devolve on the Government.
5.3. For immediate reference, we refer to Sections 8 to 13 and the Schedule to the Act which speak of Class I and Class II heirs and read as under:
“8. General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:—
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
9. Order of succession among heirs in the Schedule.-Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
10. Distribution of property among heirs in class I of the Schedule.- The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:—
Rule 1.- The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.- The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.- The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
11. Distribution of property among heirs in class II of the Schedule.- The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they, share equally.
12. Order of succession among agnates and cognates.- The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:—
Rule 1.-Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2.-Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3.-Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.
13. Computation of degrees.- (1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or descending.
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29. 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.
CHAPTER III
TESTAMENTARY SUCCESSION
30. Testamentary succession.— Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.-The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.’
‘THE SCHEDULE
(See section 8)
HEIRS IN CLASS I AND CLASS II
Class I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.
Class II
I. Father.
II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.
III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter.
IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
V. Father's father; father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; father's sister.
VIII. Mother's father; mother's mother.
IX. Mother's brother; mother's sister.
Explanation.-In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.’”
In this regard, it is also necessary to refer to the definitions of ‘agnate’ and ‘cognate’ in Section 3(1)(a) and 3(1)(c) in the context of Section 8 (c) and (d) of the Act, which reads as under:
“3. Definitions and interpretation.- (1) In this Act, unless the context otherwise requires,-
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(a) “agnate”- one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males;
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(c) “cognate” — one person is said to be a “cognate” of another if the two are related by blood or adoption but not wholly through males;”
5.4. Thus, in the event of a competent court of law declaring a testament of a Hindu to be invalid and in the absence of any heirs under Section 8 then; Section 29 of the Act would apply as it would be a case of failure of heirs. In other words, if a Will of a Hindu has been declared to be invalid and probate is not granted, then the provisions of the Act would automatically apply as the deceased would have died intestate. It has to be then ascertained as to whether there are any Class I or Class II heirs, agnates or cognates. Only on the failure of any qualified heir being present to succeed to the properties, under the aforesaid Act, Section 29 of the said Act would apply as it would be a case of failure of heirs. Thereafter the properties of the deceased male or female Hindu would devolve on the Government. In such a case, the doctrine of escheat would apply.
6. However, in the instant case the facts are that the probate of the Will of the testator was firstly declined by the learned single Judge but was later granted by the Division Bench of the High Court. Therefore, there is a pronouncement on the validity of the Will of the testator by a competent court of law. In the circumstances, the legatees under the Will would be the persons who would succeed to the property. In the instant case, the legatees under the Will is the ‘Khetri Trust’ and therefore the Trust would have to ensure that the intentions of the testator are complied with through the objects of the Trust.
6.1. In our view, the lis in State of Rajasthan v. Lord Northbrook has now been rendered wholly academic inasmuch as the Division Bench of the Delhi High Court has allowed the appeals and has declared the Will of the testator to be valid and has granted probate of the Will of Sri Raja Sardar Singh. Consequently, the legatees under the Will would have to carry out the intention of the testator for which an executor had also been appointed under the said Will.
6.2. The grant of probate by a competent court of law can be assailed only by those who are the likely heirs if the Will is to fail, by either filing an appeal against it or by seeking revocation of the grant of probate under Section 263 of the IS Act, 1925. Further, it is only when there is failure of heirs that the estate of an intestate Hindu would devolve on the Government under Section 29 of the Act. This means that till that stage arrives, the Government is a stranger to the probate proceedings as well as any proceeding regarding succession under the personal law. Merely because the State of Rajasthan in the instant case has invoked the Rajasthan Escheat Regulation Act, 1956, would not give locus standi to assail the grant of probate of the Will of the testator. Hence, we have considered the locus standi of the State of Rajasthan to file these special leave petitions as a preliminary issue in these Special Leave Petitions.
6.3. In view of the above, we find that the State of Rajasthan in the instant case has no locus standi to challenge the judgment of the Division Bench of the High Court on the strength of the escheat of the properties of the testator. Section 29 of the Act does not apply in the instant case as this is not a case of intestate succession but one of testamentary succession as probate of the Will has been granted by High Court.
6.4. We may also mention that in the event the probate has been granted illegally to the legatees of a Will inasmuch as the Will itself is not a valid Will, then under Section 263 of the IS Act only the persons who could have succeeded, by the Will being declared invalid namely, the successors under the Act, as per Section 8 thereof could have filed an application under Section 263 of the IS Act for revocation of the grant of probate and none else.
6.5. In other words, we clarify that it is only in the event of intestate succession, Section 29 of the Act applying that there would be a devolution of the estate of a deceased male Hindu on the Government and not otherwise. Since such a situation does not arise in the instant case, as probate of the Will of testator has been granted by a competent Court of law; this is a case of testamentary succession.
7. In the circumstances, we have no hesitation to hold that in the instant case the State of Rajasthan has no locus standi to challenge the judgment of the Division Bench of the High Court as the Will of the deceased testator has been probated and, therefore, Section 29 of the Act would not apply.
8. Hence, the Special Leave Petitions filed by State of Rajasthan are dismissed on the ground of locus standi.
Pending application(s), if any, shall stand disposed of.
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