Mrs. V. G. Paterson vs Mr. O. V. Forbes and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 170 of 1961

Decision Date: 13 September, 1962

Coram: K.C. Das Gupta, J.L. Kapur, Raghubar Dayal

Mrs. V. G. Paterson filed a petition against Mr. O. V. Forbes and other respondents, and the case was heard on 13 September 1962 before the Supreme Court of India. The judgment was authored by Justice K. C. Das Gupta, and the bench comprised Justices K. C. Das Gupta, J. L. Kapur, and Raghubar Dayal. The citation for the decision is reported in 1963 AIR 692 and also in the Supreme Court Reports Supplement (1) page 40. The matter involved the provisions of the Contempt of Courts Act, the procedures for issuing a notice to appeal, the failure to comply with that notice, the attachment of property, the subsequent surrender of that property to the Government, and the executrix’s application for restoration of the attached property under the Code of Criminal Procedure, 1898, sections 87 and 88(7).

The appellant’s mother died leaving a will that named the appellant, her sister, and her brother as beneficiaries. The appellant applied for probate of the will, and probate was granted in her favour. Later, during a criminal appeal before the Oudh Chief Court, both the State counsel and the appellant’s counsel filed applications to proceed against the appellant’s brother, Mr. Forbes, under the Contempt of Courts Act. Mr. Forbes failed to appear despite notices issued by the court, prompting the court to publish a proclamation under section 87 of the Code of Criminal Procedure and to attach certain properties under section 88 of the same code. Those properties were presumed to belong to Mr. Forbes and were then in the custody of the appellant, who was acting as executrix of the estate. Because Mr. Forbes continued to absent himself, the court ordered that the attached properties be placed at the disposal of the Government and that the contempt proceedings be adjourned sine die until Mr. Forbes either appeared or was arrested. Following the court’s direction, the appellant delivered the properties to the City Magistrate, who forwarded them to the Government.

Subsequently, Mr. Forbes died. After his death, the appellant applied to the Government for the return of the attached properties. The Government refused the request. The appellant then filed a writ petition in the High Court seeking a writ of mandamus to compel the Government to restore the property, but the petition was unsuccessful. She thereafter filed an application before the High Court requesting that the Secretary to the Uttar Pradesh Government be directed to restore the attached property. The High Court dismissed this application. The appellant then appealed to the Supreme Court by way of a special leave petition. The appeal raised several principal questions: whether, at the time of attachment, the properties formed part of the administered estate of the appellant’s mother; whether the properties could be lawfully attached for the purpose of securing Mr. Forbes’s arrest; whether the provisions of the Code of Criminal Procedure applied to contempt proceedings; and, additionally, whether property attached under section 88(7) of the Code of Criminal Procedure would become the disposal of the Government. The Supreme Court held that the properties in the possession of the executrix could become vested in Mr. Forbes only upon her handing them over to him or to an agent acting on his behalf.

The Court observed that ownership of the disputed properties could vest in Mr. Forbes solely upon the executrix physically handing over the assets to him or to an individual authorized to receive them on his behalf. It further held that the mere fact that the executrix, acting under the Court’s direction, transferred the properties to the Magistrate did not terminate their status as unadministered assets belonging to the estate of the appellant’s mother. Because the properties remained part of an unadministered estate, the Court concluded that they could not lawfully be attached in any proceeding intended to secure the arrest of Mr. Forbes. Consequently, the attachment order was deemed invalid, and there was no occasion to apply section 88(7) of the Code of Criminal Procedure in order to place the properties under Government control. The Court also noted that, even assuming the properties were the subject’s own, the provisions of sections 87 and 88 of the Criminal Procedure Code were not designed to secure the presence of a person alleged to have committed contempt of court. Assuming, for argument’s sake, that the Court possessed authority separate from the Criminal Procedure Code to attach the contemner’s property, the Court asserted that it nonetheless lacked the power to vest the attached property in the Government. Accordingly, the Government’s possession of the properties was held to be without any legal authority. The Court further declared that, even if the attachment order had been valid and the Government had acquired the properties lawfully, the attachment would survive only while the contemner was alive; upon the contemner’s death, the rightful owner would be entitled to restoration of the property. The Court warned that it would fail in its duty if, after recognizing its own error in ordering an illegal attachment and in wrongfully delivering the property to the Government, it refused to rectify that mistake. The decision relied on the precedent set in Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court, [1954] S.C.R. 454, and referred to the case Bodgar v. Comptoir d' Escomute di Paris, 3 P.C. 465.

The judgment was delivered in the Criminal Appellate Jurisdiction in Criminal Appeal No. 170 of 1961, which arose by special leave from a judgment and order dated August 28, 1961, of the Allahabad High Court, Lucknow Bench, in Criminal Miscellaneous Case No. 125 of 1961. Counsel for the appellant included senior members of the bar, while counsel for respondent No. 2 represented the opposing side. The judgment was pronounced on September 13, 1962, by Justice Das Gupta. The Court explained that the present appeal challenged the High Court’s dismissal of an application filed by the appellant on August 28, 1961. In order to appreciate the issues raised, the Court deemed it necessary to recount the complex factual background that gave rise to the appellant’s proceedings. It noted that on January 23, 1938, the appellant’s mother, Mrs. A. E. Forbes, executed a will bequeathing all of her property to her three children – the appellant Mrs. V. G. Paterson, Mrs. E. D. Earle, and Mr. O. V. Forbes. The testatrix subsequently died on June 6, 1939, after which probate of the will was obtained on November 30, 1939. This sequence of events formed the factual matrix upon which the Court based its subsequent analysis of the attachment and its legality.

The appellant applied for probate of her mother’s will in 1939, and the probate was officially granted on 30 November 1939. On 4 May 1943, while Criminal Appeal No 9 of 1943 was being heard before a single judge of the Oudh Chief Court, the State counsel alerted the judge to certain allegations made by Mr O V Forbes. The counsel reported that Mr Forbes, who was the brother of the present appellant, had in his application before the trial court and elsewhere cast aspersions on the conduct of that court, amounting to contempt of court. The learned judge responded by ordering the issuance of a notice against Mr Forbes in the matter of contempt. Two days later, on 6 May 1943, the appellant filed a parallel contempt application against her brother under the Contempt of Courts Act, and a notice was likewise issued to him. Although the precise wording of the notices is not recorded, it is uncontested that the notices required Mr Forbes to appear before the Oudh Chief Court and show cause why he should not be proceeded against for contempt. Mr Forbes failed to appear as required, prompting the court to issue a bailable warrant for his arrest, which was subsequently returned unexecuted. Following the returned warrant, the court issued a registered notice directing Mr Forbes to attend the Oudh Chief Court on 23 September 1943, but he again failed to appear.

The judges concluded that Mr Forbes was deliberately avoiding the execution of the warrant and therefore ordered action under section 87 of the Code of Criminal Procedure. The order directed the issuance of a written proclamation requiring Mr Forbes to appear in court on 25 November 1943 at 10 a.m., to be issued in strict compliance with section 87. The proclamation was also ordered to be published once in the Pioneer of Lucknow and once in the Daily Statesman of Calcutta. In addition, under section 88 of the Code of Criminal Procedure, the court ordered attachment of both movable and immovable property belonging to Mr Forbes within its jurisdiction. The attachment list included government securities and bonds totalling Rs 1,070,000 held by the court registrar, Rs 12,250 deposited in the court’s personal ledger trustees and stakeholders fund, and government securities of face value Rs 55,000 already attached in Execution Case No 16 of 1942 before the civil judge of Lucknow. The proclamation was duly published and the specified properties were attached on the basis that they belonged to Mr O V Forbes. Subsequently, on 30 March 1944, the Oudh Chief Court entered an order relating to the attached property, the content of which continues in the following portion of the judgment.

The Court observed that Mr. Forbes failed to appear within the period prescribed by the proclamation, and consequently, under sub‑section (7) of section 88 of the Code of Criminal Procedure, the property that had been attached passed into the custody of the Provincial Government. Concerning the two contempt applications that had been filed, the Court ordered that “these applications will therefore be adjourned sine die until Mr. Forbes appears or is arrested.” On 21 September 1944, the Court further directed the withdrawal of the prohibitory order previously issued against the Registrar and the Civil Judge of Lucknow. It appeared that, following the order of the Oudh Chief Court dated 30 March 1944 which had declared the attached property to be at the disposal of the Provincial Government under the same sub‑section, the Provincial Government instructed the City Magistrate to take appropriate steps for the disposal of that property. To enable the City Magistrate to act, the earlier prohibitory orders were withdrawn. The Chief Court also commanded the Registrar and the Civil Judge to forward the attached property to the City Magistrate for lawful disposal. On the same day, Mrs. Paterson received an instruction to deliver to the City Magistrate all property in her possession that she might be holding as custodian for Mr. O.V. Forbes. Records indicated that in August 1943 the City Magistrate sent to the Uttar Pradesh Government in Lucknow promissory notes amounting to a total value of Rs 2,28,800, identified as the attached property, and included a statement that “these G.P. Notes to the total value of Rs 2,28,800 have been ordered to be forfeited to the U.P. Government by the Chief Court of Oudh under order dated 21 September 1944 in Criminal Miscellaneous Application No. 47 of 1943.” The accompanying note requested that the Government take the necessary action to credit the sum under the head of Fines and Forfeitures, a step that was apparently carried out. Mr. Forbes died in 1953. Subsequently, on 4 April 1960, the present appellant filed an application with the Uttar Pradesh Government asserting that Mr. Forbes had died intestate, that his only heirs were his two sisters – the appellant herself and her sister, Mrs. E.D. Earle, for whom the appellant acted as trustee – and prayed that, since the Government was merely a receiver or trustee of Mr. Forbes’s property and that trusteeship ended with his death, the Government should return the property to the appellant and her sister. On 3 September 1960 the Government rejected this prayer, describing the property as confiscated and stating that, on legal grounds, the appellant’s claim was wholly untenable. However, the Government added that if the appellant could present special reasons invoking the Government’s compassion and provide convincing evidence that Mr. Forbes had indeed died and that she was his sole heir, the matter might be reconsidered.

In a letter dated 12 September 1960 the appellant informed the Government that the property of the deceased Mr. Forbes had not been confiscated but only attached. She emphasized that the Government possessed no ownership rights over the attached property and could retain it solely in the capacity of a custodian or trustee pending further proceedings. The appellant requested that the Government reconsider its position in light of this clarification. No satisfactory reply was received from the Government. Consequently, on 29 November 1960 the appellant filed an application before the Allahabad High Court under Article 226 of the Constitution. In that application she set out the facts concerning the attachment of the property and the subsequent actions of the Government, and she prayed for a writ of certiorari to set aside the Government’s order dated 3 September 1960. She also sought a writ of mandamus directing the Government to deliver the Government’s promissory notes and cash that had been attached. The High Court dismissed the application on 29 March 1961, holding that the appellant had failed to demonstrate that the State Government had omitted to perform any statutory duty. The Court further observed that the order of 5 September 1960 could not be characterized as a judicial, quasi‑judicial, or administrative order made without jurisdiction.

Following that decision, on 1 May 1961 the appellant lodged another application before the Allahabad High Court, which gave rise to the present appeal. In this subsequent application the appellant sought four distinct forms of relief: (a) an order terminating the contempt of court proceedings; (b) an order vacating the attachment orders issued by the Chief Court; (c) a direction to the Finance Secretary of the Uttar Pradesh Government to restore the attached property to the appellant in her capacity as executrix of the estate of the late Mrs. A. E. Forbes; and (d) a declaration that the attachment was void because the property represented an undistributed portion of Mrs. Forbes’s estate at the time of attachment and therefore vested in the appellant. The application was accompanied by a copy of the writ petition dated 29 November 1960, which contended that the proceedings under sections 87 and 88 of the Code of Criminal Procedure were illegal, as those provisions applied only to contempt proceedings. By separate but concurring judgments, Justice Mulla and Justice Nigam, who heard the application, rejected the appellant’s prayer for vacating the attachment order and declined to issue any direction to the Finance Secretary for restoration of the property. Justice Mulla based his decision principally on the appellant’s own misconduct, noting that she had been responsible for obtaining warrants under sections 87 and 88 of the Code of Criminal Procedure against the deceased and therefore could not be granted discretionary relief, especially after a considerable delay in filing the application.

The learned judge observed that it would be unreasonable for the appellant to now claim that the processes issued against Mr. Forbes were beyond the court’s jurisdiction, and he held that because the appellant herself had played a key role in obtaining the order now challenged, the court’s discretionary powers could not be exercised in her favour, especially since her application was filed after a considerable delay. He further expressed the opinion that the judges of the Chief Court had acted within their jurisdiction when they issued processes under sections 87 and 88 of the Code of Criminal Procedure, and that the order was just and legal, noting that the State had taken possession of the property following due process of law. In his view, “Mr. Forbes was willing to give away this property rather than, face a prosecution for contempt of Court,” and he added that “if he took up that attitude it cannot be said by the heirs of Mr. Forbes that now the property should be released in their favour.” Mr. Justice Nigam emphasized that the court had attached property belonging to Mr. Forbes and that the present appellant had delivered the property to the court treating it as Mr. Forbes’s property. He stated that if the attached property did not belong to Mr. O. V. Forbes, the appellant should never have handed it over voluntarily, and he further opined that the appellant’s voluntary surrender of the property as belonging to Mr. Forbes and her suggestion that the particular property be attached amounted to an admission that ownership vested in Mr. O. V. Forbes and that the property was not part of the undistributed assets in the possession of Mrs. Peterson as executrix of Mrs. A. E. Forbes. The judge also held that the Code of Criminal Procedure was not directly applicable, observing that a bench could adopt its own procedure for enforcing the attendance of a delinquent, and he added that if the bench chose to follow the procedure prescribed in the Code, there was no basis for claiming that the adopted procedure was wrong, improper, or beyond the court’s jurisdiction. He concluded that reviewing the order after a lapse of about eighteen years would be contrary to the interests of justice, pointing out that the court no longer possessed the attached property because it had been transferred to the City Magistrate for delivery to the State Government, and therefore the court could not pass any further orders concerning the property. He expressed the view that, on its face, the appellant’s appropriate remedy, if any, would be a civil suit, and accordingly the contempt proceedings were ordered to be recorded as abated. The present appeal was filed against the High Court’s decision refusing to grant the plaintiff the substantial relief sought.

In the present application the petitioner sought an order directing the Finance Secretary of the Uttar Pradesh Government to restore to her the property that had been attached. The Court first had to determine whether, at the moment of attachment, the property formed part of the unadministered estate of the late Mrs A E Forbes. If the property was indeed part of that unadministered estate, then it could not legally be attached as the property of Mr O V Forbes, even though sections 87 and 88 of the Code might be invoked to secure the arrest of a person alleged to have committed contempt. Justice Mulla did not address this specific question in his judgment. Justice Nigam, however, reached a definitive conclusion that the property had vested in Mr O V Forbes on the date of attachment and therefore was not part of the undistributed assets of Mrs A E Forbes that remained in the hands of the executrix. In reaching this view, the learned judge appears to have relied on what he described as “the fact that she (Mrs Paterson) voluntarily handed the property over as belonging to Mr Forbes and actually suggested that this particular property be attached.” The record does not make clear on what material the judge based the finding that Mrs Paterson had suggested that the specific property be attached.

The fact that Mrs Paterson actually handed the property over is correct and seems to have been done in compliance with a court order. Paragraph 8 of the writ petition records her statement: “That under the orders of the Hon’ble Chief Court of Avadh the petitioner deposited with the Registrar of that Court and finally with the City Magistrate, Lucknow, unadministered assets consisting of Government Promissory Notes and each totalling Rupees 2,41,300/‑ detailed in the list attached to this petition which the then City Magistrate, Sri S G Bose‑Mullick was pleased to transfer the same to the Finance Secretary to the U P Government, Lucknow, in August, 1948.” The counter‑affidavit filed on behalf of the State of Uttar Pradesh admitted that the statements in this paragraph were true. Consequently, it is clear that the petitioner transferred the securities and cash – the property that was later attached – in accordance with the orders of the Chief Court of Oudh. Moreover, the petitioner expressly stated in paragraph 8 that the property she transferred formed part of the unadministered assets in her possession, a statement that the State accepted as true. It is therefore difficult to argue that, merely because the executrix handed over certain assets to the Registrar and the City Magistrate in obedience to the court’s direction, those assets automatically vested in Mr O V Forbes. The property in the executrix’s possession could become vested in Mr O V Forbes only on her...

In this case the Court observed that the mere delivery of the property to the Registrar of the Court or to the City Magistrate did not amount to handing it over to the legatee, Mr O V Forbes, or to any person acting on his behalf. The Court explained that a transfer of ownership required actual delivery to the legatee himself or to an agent authorized by him. The Registrar of the Chief Court and the City Magistrate of Lucknow were not acting as agents of Mr Forbes; rather, they were acting contrary to his interests. Consequently, the Court held that the assets remained unadministered property of the estate of Mrs A E Forbes despite being deposited with the Registrar or the City Magistrate pursuant to the Court’s orders. Accordingly, at the time the attachment was effected, the property was not the property of Mr O V Forbes but formed part of the unadministered assets of Mrs A E Forbes. Because the attached property did not belong to Mr Forbes, the attachment could not lawfully be made in any proceeding intended to secure his arrest. The Court concluded that the order of attachment was invalid and that section 88(7) of the Code of Criminal Procedure could not operate. Even if the property had been owned by Mr Forbes, the Court considered whether, under the same section, it would become subject to the Government’s control. Referring to the decision in Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court, the Court noted that the Code of Criminal Procedure does not apply to contempt proceedings, and therefore sections 87 and 88 cannot be invoked to secure the presence of a person alleged to be in contempt.

The Court further noted that counsel for the appellant had argued that, even assuming the property belonged to the alleged contemnor, the Chief Court of Oudh possessed no authority to attach it. The High Court had suggested that the Chief Court could adopt any procedure it deemed appropriate for punishing contempt, including issuing an arrest warrant, issuing a proclamation for appearance, and attaching the contemnor’s property if necessary. The Court clarified that, as a court of record, the Chief Court had the inherent power to punish contempt and, for the proper exercise of that power, it could possess ancillary powers deemed necessary. However, the Court deemed it unnecessary to resolve whether such ancillary powers extended to arrest and attachment of the alleged contemnor’s property for the purpose of securing his presence. Assuming those powers existed, the Court still held that the Chief Court had no authority to transfer the attached property to the Government. The right of the Government to control attached property derives from section 88 of the Criminal Procedure Code, but because no lawful attachment could be made under that provision in a contempt proceeding, the statutory mechanism in section 88(7) could not operate, leaving the Government without any legal authority over the attached assets.

In this case the Court observed that, even though the Chief Court of Oudh possessed the authority to punish contempt, it never acquired the power to transfer the attached property to the Government. The Government’s alleged control over such property would normally arise from section 88 of the Criminal Procedure Code. However, the Court noted that section 88 does not permit an attachment to be made in contempt proceedings; consequently the provision of section 88(7) – which states that property attached under a proclamation shall be at the disposal of the State Government if the proclaimed person fails to appear – cannot be invoked. As a result, the Government’s possession of the property that was attached by order of the Chief Court is without any legal authority. The Court then turned to the question of whether it should order that the property be returned to its lawful owner. The State of Uttar Pradesh submitted that, when the Government occupies property unlawfully, the proper remedy for the owner is to bring a civil action. In such a suit the owner would have to pay the requisite court fee, and the Government would be free to raise any statutory defence, including limitation, that might be available. This, the State argued, reflects the normal legal position. The Court, however, recognized a special circumstance in the present matter: the property reached the Government solely because of an error committed by the Chief Court. While the contempt proceedings against Mr O V Forbes were justified as necessary to protect the dignity of the Court and the administration of justice, the Court also affirmed that the Chief Court acted without jurisdiction when it attached the property and ordered its delivery to the Government. In reaching this conclusion the Court recalled the well‑known principle expressed by Cairns, L.C. in Rodger v. Comptoir d’ Escompte da Paris, namely that one of the highest duties of a court is to ensure that its actions do not cause injury to any party. The Court stressed that merely being aware of an error does not confer an inherent power on a court to reopen a matter and alter its decision; in many instances a party injured by a mistake may have no remedy other than those provided by appeal, revision or review. Consequently, given the erroneous order that placed the property in the Government’s possession, the Court considered that it must address the restoration of the property to its rightful owner.

The Court explained that a party may obtain relief only through the mechanisms of appeal, revision or review, and that a mere erroneous decision does not itself create a remedy. While courts frequently emphasize that they possess authority to decide both correctly and incorrectly, the existence of an error does not automatically entitle a party to relief. The principle limiting the use of inherent jurisdiction to rectify judicial errors does not apply to the present circumstances. In this case, the Court, exercising its contempt jurisdiction, ordered the attachment of certain property. This situation is not one involving conflicting claims between two litigants that have been resolved by a judgment or order. The real issue, therefore, is whether the property should remain with the rightful owner or with the Government, which has taken possession of it without being a claimant, due solely to an erroneous court order. The Court held that the question must be decided in favour of the rightful owner. It assumed that the Court possessed authority to attach the alleged contemner’s property, but concluded that it lacked legal authority to transfer that property to the Government. Moreover, the attachment could subsist only while the contemner was alive; upon the contemner’s death, the attachment could not continue in law or equity because its purpose—to secure the presence of the alleged contemner—could no longer be achieved. Consequently, the rightful owner would be entitled to restoration of the property upon the contemner’s death. The Court rejected the notion that it could do nothing merely because the property had passed into Government hands as a result of its own mistake. It affirmed that refusing to correct a recognized error would undermine the Court’s primary function of dispensing justice. Since the mistaken act of the Court placed the Government in possession of the property without any claim, it is proper and necessary for the Court to correct the error and restore the property to the person from whom it was wrongly taken. The Court saw no legitimate grievance on the part of the State of Uttar Pradesh, which had no title to the attached property and exercised no control over it except through the erroneous application of section 88(7) of the Code of Criminal Procedure. If it is now established that the Court erred firstly in attaching the property,

In this case the Court observed that the second point raised, namely the direction for the property to be transferred to the Government, did not give the Government any legitimate ground to oppose the Court’s correction of the earlier mistake. The Court expressed that it would be regrettable if, under such circumstances, it were to find itself powerless to rectify its own error and to order the return of the property on an application made for that purpose. The Court further stated that, in its opinion, the applicant was entitled to a decree restoring the property that had been attached. Accordingly, the Court permitted the appeal and directed that the Finance Secretary of the Uttar Pradesh Government be ordered to return the attached property, which was then held by the Government, to the appellant. Considering the unusual facts of the case, the Court chose not to make any order regarding the award of costs. The appeal was therefore allowed.