The concept of Bona Vacantia By Swati Bisen from GNLU
In literal sense, the concept of bona vacantia refers to the idea of ‘vacant goods’ which is essentially a term used to describe a property which has no owner. Since feudal times, the law of land rely on the system of ‘tenure’.
This tenancy, when it comes to an end, brings an end to this ownership and consequently, the land would revert to the state ownership. This is the idea still being followed. With different names and conditions, several countries follow the principle of state ownership of land in case of an ownerless property.
The concept thus has its roots in the common law origin practised to ensure that the property is not left in ‘midpoint’ without recognized ownership.
In India, it all started with the East India company annexation policy. Devised by the then governor general Lord Dalhousie, around 1848 to 1856, dealing with the scenario wherein if a ruler of an Indian kingdom died without leaving behind a male heir to the throne or was majorly incompetent, the particular kingdom would, upon the death of the king, be annexed to the lands owned by East Indian Company.
The Doctrine of bona vacantia or Escheat was further, 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”. What started as a meticulous attempt to acquire land as a means of power struggle is now in fact a established and a well proven point of law.
At present, the concept extracts its authenticity from Article 296 of the Constitution of India. The idea provided for is:
“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.”
Evidently, it is well settled that escheat is the idea of sovereignty pursuant to which property vests in the Government in the absence of an heir or successor of the owner of the property.
The Judicial Stance: the below mentioned judicial decision denotes the stand of Indian judiciary on the concept, conviction in this principle and elucidating upon its core basics:
- The Calcutta High Court in “Syed Mohammed Atique v. Arup Kumar Todi and Anr.” held that "The rigors of escheat are material just when there is obvious proof on record about the non-presence of the lawful beneficiaries of the inhabitant."
- Biswanath Khan and Ors. v. Prafulla Kumar Khan, “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. 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”.
The Escheat concept in other countries:
For a large portion of England and Wales, the Bona Vacantia Division of the Government Legal Department is in charge of managing bona vacantia resources in the interest of the Crown. In the event that no beneficiaries to a bequest can be discovered then the advantages are acknowledged and the equalization is exchanged to HM Treasury.
United States of America:
Bona vacantia was acquired from English Common Law and proceeds as lost, misplaced, and deserted property, connected to individual property. The state goes about as the caretaker of the property in interminably for the benefit of the legitimate proprietor.
Bona Vacantia and Private International Law:
Despite the fact that the basic essence of this concept denotes a national regulation of owner less lands, private international law comes into picture in situations where a land is subject to foreign sovereign authority. The question arises pertaining to governing law on such matters and kind of property to be subjected to such a law.
According to the opinions of many specializing in private international law, the bona vacantia should ideally be governed by Lex fori (law of the jurisdiction). It is a positive law of the state, nation, or jurisdiction within which a lawsuit is instituted or remedy is sought.
It is however imperative to remember that this being the substance, procedural ways of implementing it differ among states. Private international law in omnipresent in the sense of respecting each countries laws and functionality exhibited through the idea of lex fori thus extending its reach outside domestic borders.
 (1859-61) 8 Moo Ind App 500 at PP. 525.
 http://www.desikanoon.co.in/2014/06/constitutional-law-doctrine-of-bona.html, last accessed on 15/9/16.
 http://www.lawkam.org/constitution/doctrine-of-escheat-or-bona-vacantia/331/ , last accessed on 15/9/16.
 AIR 1988 Calcutta 275
Disclaimer: The opinions expressed in the articles or any other publication are those of the authors. They do not purport to reflect the opinions or views of the Educoncours or its members.