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TMI Blog1988 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... re not without owner " as " the State takes them over ". It was pointed put further that though there is no provision in the Indian Companies Act, corresponding to section 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. Cavaly Vencata Narrainapah, [1859-61] 8 Moo Ind App 500 (Mad.) at pp. 525, 526, 527. 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 Manusamhita (Chapter IX, Verse 189) " Aharajvam Brahma nadravyam Rajna Nityamiti Sthiti, Itareshantu Varnanam Sarbhbhava 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC) at p. 819 that "property of an intestate dying without lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantia". And relying oh this decision, the Supreme Court in Narendra Bahadur Tandon v. Shanker Lal, [1980] AIR 1980 SC 575, at page 578, 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 must necessarily vest in the Government by escheat or as bona vacantia". This position in law had not been, as it obviously cannot be, disputed by Mr. Dasgupta, learned counsel for the appellants-landlords. But he has, however, urged that only such property can accrue to the State by escheat or as bona vacantia which was and could be the subject of absolute ownership in the hands of the last holder and, therefore, the tenancy interest of the dissolved company in this case, being that of a thika tenant under the Calcutta Thika Tenancy Act, 1949, could not ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inheritance to which the raiyat is subject his other property goes to the Crown, his right of occupancy shall be extinguished". "Reference may also be made to the proviso to section 7(5) of the West Bengal Non-agricultural Tenancy Act, 1949, which has also provided that " in any case in which under the law of inheritance to which such tenant is subject, his other property goes to the Government, his interest in such land shall be extingushed ". The expression " other property in those statutory provisions would unmistakably demonstrate that the concerned Legislatures have all along treated such tenancy interest, howsoever limited, as property analogous to all other property and being fully alive to the fact that such tenancy interest would have accrued to the Government by escheat or as bona vacantia on failure of heirs, has had provide for its prevention. The point-appears to have been clinched so far as thika tenancy is concerned by the provisions of section 11 (now repealed) of the Calcutta Thika Tenancy Act, 1949 which also similarly provided thai "a any case in which under the law of inheritance to which the thika tenant is subject, his other property goes to the Crown, his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79 distinguished this Allahabad decision on this ground. In Ranee Sonet Rower .376] 3 Ind App 92, the Privy Council was dealing with a Mokarari tenure which was held to have conferred an absolute interest to the tenure-holder and some observations in that decision might give rise to the impression that only such properties would be liable to accrue by way of escheat or as bona vacantia as were or could be held in absolute ownership. As we have already indicated, we cannot find any justification to give any such qualified, limited or circumscribed meaning to the expression "property" for the purpose of devolution by way of escheat or as bona vacantia and, as already noted, the decision of this court in U. N. Mandal's Estate, AIR 1959 Cal 493, and those of the Supreme Court in. Pierce Leslie, [1969] 39 Comp Cas 808, and in Narendra Bahadur, AIR 1980 SC 575, leave no room for doubt that anything that can jurisprudentially be treated to be property would, unless otherwise expressly provided by law, be liable to vest in the Government by way of escheat or as bona vacantia and if in the Privy Council decision in Ranee Sonet Kower [1876] 3 Ind. App. 92, there are observations to the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then was), has pointed out that " it cannot be disputed as a general proposition of law, that adverse possession against the tenant is not adverse against the landlord during the continuation of the lease". As pointed out by us in a rather recent decision in Gold Leaf Tea Co. v. Tribeni Tissues Ltd. [1987] Cal LT (HC) 327, 331, with reference to Rahim Bux, AIR 1948 Cal 71, and the observations made in U. N. Mitra's Tagore Law Lectures on Limitation and Prescription (3rd edition, page 161), this view is based on the principle that possession cannot be adverse to one who has no immediate right to possession and since a landlord does not have any such right in respect of the tenanted property during the subsistence of the tenancy, he does not acquire any right of action against the trespasser encroaching upon the tenanted property. It is true that in Gold Leaf Tea Co. [1987] Cal LT (HC) 327, we have also held further that the trespasser, while adversely possessing the tenanted property, may also, in a given case, assert an adverse title against the landlord also and that when such is the case, the landlord would also acquire a right to sue the- trespasser even during the currency of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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