Case Analysis: Mrs. V. G. Paterson v. Mr. O. V. Forbes & Others
Case Details
Case name: Mrs. V. G. Paterson v. Mr. O. V. Forbes & Others
Court: Supreme Court of India
Judges: K.C. Das Gupta, J.L. Kapur, Raghubar Dayal
Date of decision: 13 September 1962
Citation / citations: 1963 AIR 692
Case number / petition number: Criminal Appeal No. 170 of 1961, Cr. Misc. Case No. 125 of 1961, Criminal Appeal No. 9 of 1943, Execution Case No. 16 of 1942, Criminal Miscellaneous Application No. 47 of 1943
Neutral citation: 1963 SCR Supl. (1) 40
Proceeding type: Criminal Appeal (Special Leave)
Source court or forum: Supreme Court of India
Source Judgment: Read judgment
Factual and Procedural Background
Mrs. V. G. Paterson was the executrix of the estate of her mother, Mrs. A. E. Forbes, who had executed a will on 23 January 1938 bequeathing all her property to her three children – the appellant, Mrs. E. D. Earle and Mr. O. V. Forbes. The testatrix died on 6 June 1939 and probate was granted on 30 November 1939.
In 1943 Mr. O. V. Forbes was alleged to have made contemptuous statements against the Oudh Chief Court while a criminal appeal was pending. The Court issued notices, a bailable warrant (which remained unexecuted) and a further registered notice requiring his appearance on 23 September 1943, which he ignored.
Consequently, the Chief Court issued a proclamation under section 87 of the Code of Criminal Procedure directing Mr. Forbes to appear on 25 November 1943 and ordered attachment of his movable and immovable property under section 88. The attachment comprised government promissory notes and cash held in the Court’s registers and a sum deposited in the Personal Ledger, Trustees and Stake‑holders Fund.
On 30 March 1944 the Chief Court recorded that, because Mr. Forbes had not appeared, the attached property was at the disposal of the Provincial Government pursuant to sub‑section (7) of section 88. The property was later sent to the City Magistrate of Lucknow, who forwarded it to the Uttar Pradesh Government, which recorded it as forfeited fines.
Mr. O. V. Forbes died intestate in 1953, leaving Mrs. Paterson and her sister as his only heirs. In April 1960 Mrs. Paterson applied to the Government for the return of the property, asserting that the Government was only a custodian and that, with Mr. Forbes’s death, its role had ceased. The Government rejected the prayer, characterising the property as confiscated, but invited her to provide special reasons and evidence of his death.
Mrs. Paterson filed a writ petition under article 226 of the Constitution on 29 November 1960, seeking a certiorari to quash the Government’s order of 3 September 1960 and a mandamus directing the restoration of the promissory notes and cash. The Allahabad High Court dismissed the petition on 29 March 1961, holding that the appellant had not shown a failure by the State to perform a legal duty and that the order was not a judicial or quasi‑judicial act.
On 1 May 1961 the appellant filed a second application before the High Court, seeking (a) termination of the contempt proceedings, (b) vacating of the attachment orders, (c) a direction to the Finance Secretary of Uttar Pradesh to restore the property to her as executrix of Mrs. A. E. Forbes’s estate, and (d) a declaration that the attachment was illegal. The High Court, joined by concurring judgments of Justices Mulla and Nigam, refused all reliefs, reasoning that the appellant had facilitated the issuance of the attachment processes and that the Court’s discretionary powers should not be exercised in her favour. The contempt proceedings were recorded as abated.
The appellant appealed to the Supreme Court of India by special leave (Criminal Appeal No. 170 of 1961), challenging the High Court’s refusal to order restoration of the property.
Issues, Contentions and Controversy
The principal issues were (i) whether the property attached under the Oudh Chief Court’s orders formed part of the unadministered estate of the late Mrs. A. E. Forbes and therefore could not be treated as the property of Mr. O. V. Forbes for the purpose of invoking sections 87 and 88 of the Code of Criminal Procedure; (ii) whether sections 87 and 88 were applicable to contempt of court proceedings; (iii) assuming the attachment was invalid, whether the Uttar Pradesh Government possessed any statutory right to retain the property under section 88(7); and (iv) whether the Supreme Court could, notwithstanding the lapse of time, exercise its inherent jurisdiction to set aside the attachment order and direct restitution, or whether the appellant’s remedy lay only in a civil suit.
The appellant contended that the attachment was ultra vires because the assets were part of the undistributed estate of Mrs. A. E. Forbes and, as executrix, vested in her at the time of attachment. She further argued that the CrPC provisions could not be invoked in a contempt matter and that the State held the property merely as a custodian, lacking any proprietary title. Accordingly, she prayed for termination of the contempt proceedings, vacating of the attachment, and a mandamus directing the Finance Secretary to restore the securities and cash to her.
The State of Uttar Pradesh contended that the attached property was the confiscated property of Mr. O. V. Forbes and that, even if the attachment were unlawful, the appropriate remedy was a civil suit in which the State could raise defences such as limitation. It maintained that the Government possessed no title to retain the property.
Representatives of the deceased brother argued that the property belonged to Mr. O. V. Forbes, that the Chief Court had acted within its jurisdiction to secure his attendance, and that the appellant had voluntarily handed over the property, thereby acknowledging its ownership by the brother. They opposed any order directing restoration to the appellant.
Statutory Framework and Legal Principles
The Court considered sections 87 and 88 of the Code of Criminal Procedure, including sub‑section 7 of section 88, which authorises the issuance of a proclamation and the attachment of movable and immovable property of a person who fails to appear before a court. It also referred to the Contempt of Courts Act, which governs contempt proceedings, and to article 226 of the Constitution, under which the appellant sought certiorari and mandamus.
The Court applied the test articulated in Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court, asking whether the CrPC provisions were applicable to contempt proceedings. It further employed an ownership test to determine whether the attached assets formed part of the unadministered estate of the deceased testatrix or the property of the alleged contemner. Finally, it invoked the inherent jurisdiction of a court of record to correct its own error and prevent injustice.
The binding principle that emerged was that sections 87 and 88 of the CrPC are inapplicable to the enforcement of attendance in contempt proceedings where the property sought to be attached is not the property of the alleged contemner; consequently, the operation of section 88(7) does not vest such property in the State.
Court’s Reasoning and Application of Law
The Court first held that the Code of Criminal Procedure does not apply to contempt of court proceedings. Accordingly, the proclamation under section 87 and the attachment under section 88 lacked statutory basis.
Next, the Court examined the nature of the attached assets. It found that, at the time of attachment, the securities and cash formed part of the undistributed assets of the estate of Mrs. A. E. Forbes. The appellant’s statement in paragraph 8 of the writ petition, which the State admitted as true, confirmed that the property remained unadministered and was in her possession as executrix. Therefore, the property never vested in Mr. O. V. Forbes and could not be treated as his for the purpose of attachment.
Because the attachment was void, the Court concluded that sub‑section 7 of section 88, which would vest the attached property in the State Government, could not operate. The State’s possession of the property was thus without legal title.
Finally, invoking its inherent jurisdiction, the Court held that it could set aside its own erroneous order and order restitution, even though many years had elapsed. The Court emphasized that the purpose of the attachment – securing the presence of the alleged contemner – could no longer be pursued after his death, and that allowing the State to retain the property would cause injustice.
Final Relief and Conclusion
The Court granted the reliefs sought by the appellant. It directed the Finance Secretary of the Uttar Pradesh Government to restore the attached promissory notes and cash to Mrs. V. G. Paterson, recognizing her as the executrix of the estate of Mrs. A. E. Forbes. It also ordered that the contempt of court proceedings be recorded as abated. No order as to costs was made. The appeal was allowed, and the attachment was declared unlawful and void.