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Judgment
Defendant-State of Tamil Nadu represented by the District Collector. Tiruchirapalli, is the appellant in this second appeal. Plaintiff, respondent
herein, filed O.S. No. 200 of 1978, on the file of the District Munsif''s Court, Kulithalai, for a declaration that they are the absolute owners of the
suit treasure, namely, 360 one Rupee coins of Queen victoria era., and for costs of the suit.
Material averments in the plaint are as follows :--
360 One rupee coins of the era of Queen Victoria were found by the first plaintiff on 15-12-75, right in the middle of the ancestral family house,
which belonged in comon to him and his senior paternal uncle''s grandson, 2nd plaintiff in the suit. Plaintiffs claim that they are the owners of the
said property. The plaintiffs, would say that they and their ancestors had been very ancient residents of the village of Inam Pudur in Manapparai
Taluk. They had their very ancient ancestral house in the village natham in S.F. No. 74. The plaintiffs have said that the ancestral house is very
ancient one, well enclosed by a compound wall on all the four sides, and none else can have any access to the house. According to them, their
common ancestors had hidden the Treasure in the suit property, right in the middle portion of the ancestral house and had passed on the fact to
their descendants. Only because of this their sons and grandsons who had divided all other properties had postponed the actual division of the
ancestral house and had been keeping and treating and enjoying the same as common and have been safeguarding the Treasure. As such the
Treasure and the si teare the exclusive and absolute property of the plaintiffs and had been in their own exclusive possession and adverse to one
and all including the Government. The compound wall enclosing it has been in existence throughout. It has also been the subject of inspection,
verification by the officers of the Revenue Department even in proceedings under the Treasure Trove Act. It is further said that in the usual course
of their enjoyment, the plaintiffs decided to reconstruct their house, and during the course of the same and while digging the foundation found and
removed the coins well preserved in a mudpot on 15-12-1975. Proceedings under the Treasure Trove Act had been taken which had ultimately
ended in a direction to the plaintiffs to file the present suit. It is said that except the plaintiffs noneelse had made any claim and, therefore the
Government alone was made a party. Cause of action has arisen from 10-10-1977 and from 7-12-1977, the date of the revised order of the
defendant and from 7-12-1977 when the plaintiffs got the order directing the plaintiffs to file a suit in regard to the suit property, namely, Treasure
hidden in the ancestral property.
In the written statement filed by the defendant, the State admits that 360 Silver coins in a mud pot were found and taken by Gunmathan Chettiar
(Second Plaintiff) and the same were equally divided between the plaintiffs. Without giving notice to the Tahsildar or other officials, about the find
of the Treasure, they divided the treasure in equal shares. Out of the 360 coins, they have sold 110 coins, and after that, 250 coins were seized
from them. In exercise of the powers conferred on him, necessary order dated 12-10-1977 was passed by the Additional Personal Assistant to
the Collector, to establish the plaintiffs'' right in a Civil Court within one month from the dale of receipt of the order. It is said that since the plaintiffs
did not file a suit within one month, orders were passed on 29-12-1977, treating the Treasure as ownerless u/s 9 of the Treasure Trovc Act.
Plaintiffs preferred an appeal to Board. The Board set aside the order and directed the Collector to take necessary evidence. The Collector, after
holding such enquiry, directed the plaintiffs to institute a suit and get a declaration of their right. According to the defendant-State, merely because
the coins were recovered from their compound, it does not follow that the plaintiffs are the ownersof the Treasure. According to the defendant,
plaintiffs are not the owners of the property (Treasure). It is said that the plaintiffs ought to have given information about the find of the Treasure,
and since they have not done so, they are liable to be punished u/s 20 of the Treasure Trove Act. It is further said that enquiry revealed that the
plaintiffs are not the owners of the Treasure and, therefore, the suit is liable to be dismissed.
Trial Court, after taking evidence, came to the conclusion that the suit is not maintainable on the ground that the plaintiffs have not proved that
they are the owners of the Treasure and also for the reason that they have not given notice as required u/s 4 of the Act as tinders of Treasure which
now vests with the Government u/s 20 of the Act.
Against the judgment, plaintiffs preferred A.S. No. 38 of 1980, on me file of the Subordinate Judge, Karur. The Lower Appellate Court
reversed the decision and held that the plaintiffs are the owners of the Treasure and decreed the suit. The lower appellate Court also found that
there was no necessity for the issuance of a notice u/s 80, C.P.C. It was further held that the suit was instituted within one month from the date of
intimation from the Collector to institute the suit. The lower appellate Court was of the view that since the ownership over the property is not
disputed, everything that is kept or hidden within the four comers or four walls of the house also belongs to the plaintiffs. It is against the said
decision, this second appeal has been preferred by the State.
At the time of admission of the Second Appeal, the following substantial question of law was raised for consideration :
Whether the plaintiffs against whom orders have been passed under Sections 8, 9 and 17 of the Indian Treasure Trove Act can file a suit for a
mere declaration that the treasure trove belongs to them, with a prayer to set aside the above orders passed by the authorities?
Before going to the merits of the case, we have to take note of certain averments made in the plaint. It is stated in the plaint by the plaintiffs that
a Treasure Trove of 360 Silver coins of the era of Queen Victoria were found by the first plaintiff on 15-12-1975 right in the middle of their
ancestral family house, and that the same was hidden by their forefathers and the plaintiffs had also knowledge that these coins were hidden
underneath their house, and that was the reason why the house was not partitioned. This allegation in the plaint is not denied in the written
statement. On this background, we have to consider how far the provisions of the Treasure Trove Act are applicable to the facts of this case and
whether the plaintiffs are entitled to any relief sought for.
The Treasure Trove Act, 1878 (Act 6 of 1878) defines ''Treasure'' thus :
Treasure"" means any thing of value exceeding rupees ten, or of any value if it is of historical or archeotogical interest having been in existence for
not less than one hundred years, hidden or embedded, in the soil, or in anything affixed thereto, and includes uncut diamonds, or other valuable
minerals found on the surface of the soil.
Section 4 of the Act says that if any person finds a Treasure, he shall inform the Collector of the District, about the same, by a notice in writing.
But who is ''finder'' is not defined in the Act. For the purpose of disposing of this Second Appeal, we have to consider the meanings of the words
''Treasure'' and ''Finder'', and then only the question will arise whether the State is entitled to proceed under the provisions of this Act.
In one of the earliest decisions of this Court reported in (1908) ILR 31 Mad 397, their Lordships held that property not hidden is not treasure
trove and is not governed by the provisions of the Act. Unclaimed articles not found hidden are the property of the person on whose land they are
found unless they are found in a public place, in which case they belong to the finder. While dismissing the matter, their Lordships said thus:
..... In India, as pointedout by Lord Brougham in Mayor of Lyons v. East India Company, the assumption of sovereignty by the crown would not
necessarily introduce this branch of the prerogative, but it appears from the proclamation of the Governor General in Council of 3rd October,
1777, printed in Colebrokk''s Bengal Regulations, Vol. 3, p. 346, that ''the right which Government possesses to hidden treasure, wherever it may
be discovered'' had been asserted before that time, and Government subsequently proceeded to deal with the disposal of the hidden treasure by
regulations which have now been superseded by the Indian Treasure Trovc Act, VI of 1878. This Act, as well as the preceding regulations, deal
only with hidden treasure, thus following English law, and Section 3 of the Act defines treasure as ""anything of value hidden in the soil or in anything
affixed thereto"". Hindu Law also recognised the rights of Government in unclaimed property (Nidhi), apparently, whether it had been hidden or
not. In the Mayukha, Chap. VII, Para 10, Yajnavalkya is cited as saying ''let the King obtaining unclaimed property (Nidhi) give half to Brahmins,
but a learned Brahmin may keep (he whole for he is lord of all. And the king shall receive a sixth part of unclaimed property occupied by any other
person''. In case of its being discovered without any information from the finder, he must be made to pay a fine as well"". (Stokes ''Hindu Law
Books'', P. 131).
The British Government however has never asserted any right to unclaimed property other than hidden treasure, and even aslo hidden treasure the
Act now provides for dividing it between the finder and the owner of the soil.
As regards articles which are not found hidden and so do not come under the description of hidden treasure it is argued for the plaintiff that they
are the property of the person on whose land they are found unless they are found in some public place. In south Staffordshire Water Company v.
Sherman, it was held that two rings found at the bottom of a pond belonged to the landowner. In coming to this conclusion Lord Russell of
Killowen, C.J., relied on Pollock and Wright on Possession, P. 41, where it is stated that ""The possession of land carries with it in general, by our
law, possession of everything which is attached to or under that land, and in the absence of a better title, the right to possess it also. And it makes
no difference that the possessor is not aware of the thing''s existence ..... the legal possession rests on a real de facto possession constituted by the
occupier''s general power and intent to exclude unauthorised interference."" Blackstone''s statement that the thing belongs to the finder is explained
in the same judgment as referring to a case ''in which the thing was cast into a public place or into the sea -- into a place in fad of which it could not
be sold that anyone had a real de facto possession or a general power and intent to exclude unauthorised interference.
In that case, while weeding in a field belonging to the Temple of which the plaintiff was the manager, the defendant found a gold waistcord, and a
claim was made over the same by the plaintiff as owner of the land. In the written statement, the defendant admitted the finding of the golden girdle,
as alleged in the plaint. It was in such circumstances, their Lordships said that possession of the land carried with it possession everything attached
to it or under it,
Still earlier, in the decision reported in 1871 7 MHCR 150, the subject matter was some ornaments found in a lank. The entire village
belonged to Rani Kattamma Natchiar who put forward a claim that she is the owner. The finder also put forward a claim that he is the owner.
Their Lordships held that Rani cannot be given the right since she was not in possession and held that the finder be given the right over the
ornaments. An argument was taken in that case that the Rani being the sovereign, she was entitled to have the ornaments in her right as Sovereign.
The said contention was repelled.
While holding that view, it was held that :--
..... Now, as to the first ground the Civil Judge is right in his view that the Rani has no title to what has been hidden in former times in the soil now
belonging to her. It seems to be sufficiently found that the idols were hidden in a stone chamber appropriated specially to that purpose, and not
accidentally buried in the position which they would ordinarily occupy in a Hindu temple. The Rani could not, therefore claim a title as owner. .....
Ram Ranjan Mallik and Others Vs. Secretary of State, , the question was whelher forest produce will come under the provisions of Treasure
Trove Act. Their Loreships held that Treasure Trovc Act applies only to goods hidden and so far as forest produce is concerned, Forest Act alone
will apply. Their Lordships, following the decision reported in (1908) 1LR 31 Mad 397 (supra), held thus :--
It was next contended that the logs having been found upon the properly of the plaintiffs, they are under the common law entilled to them or their
value. In support of this proposition reliance was placed upon a decision of the Madras High Court in the case of Manager of Hampi Sri
Virupakshaswami Temple v. lambana Golve. In that case the plaintiff as Manager of a temple sued for a declaration of his right as such manager to
a golden girdle found by the defendant in a certain field belonging to the temple. The defendant apparently pleaded that he was entitled to the girdle
under the Treasure Trove Act. Their Lordships held that that Act had no application since Ihe property in order to come under the Act must have
been hidden. They further held that under the English Law, the possession of the land carries with it possession of everything which is attached to
or under that land and in the absence of a better title the right to possess it also except in the case of articles found in a public place. They observed
further that was the law in this country also.
We see no reason to doubt the correctness of this view of the law. ....
In AIR 1946 Nag 362 (Tirvenibai w/o Gulabrao v. Emperor), the learned Judge has exhausted the law on this enactment and has also
discussed what is meant by ''Treasure'' and ''Finder''. That is a case where certain ornaments concealed in a box were found. The claimant said
that she was aware of the concealment of the articles in the wall and, therefore, it is not hidden. That part of the case was accepted. The question
was, whether the labourer who broke the wall can be treated as ''finder'', and, therefore, bound to report the matter to the Collector as provided
u/s 4 of the Act. While discussing the same, in paragraph 13 of the said decision, the learned Judge has held thus:
The words ''Treasure'' and ''finder'' are critical. The meaning of the word ''treasure'' as given in Oxford English Dictionary is : concealed, secret,
occult. That denotes previous ignorance as to the existence of the thing at or near the place where it comes to light. The meaning of ''finder'' as
contained in the same Dictionary ''is one who comes upon or discovers by chance or search'' and the meaning of ''find'' is given as ''to come upon
by chance or in course of events or to discover or attain by search or effort''. There is difference between the implications of ''Chance'' and
''Search''. Previous ignorance is a necessary element in the discovery by chance but it may not be so in the discovery by search. The difference
between the two kinds of discovery may be clear by an illustration. A thief steals valuable properly and buries it in a field. The owner of the field
has no knowledge about the presence of the properly anywhere underneath the soil. While ploughing up the field he finds the property. His
discovery can appropriately be attributed to chance. On the other hand if the accomplice of the thief is arrested by the police and he leads the
police to a field in which the stolen property was buried by the thief to his knowledge but forgetting the exact spot where it was buried, he looks
around the spot and after some trials and errors, he ultimately finds the property in the same field. Can it be said that he found the property by
chance? The answer must be no. He found it by search knowing full well that it had been buried in the field. The word ''hidden'' used in Section 3
and the word ''finder'' used in Section 4 of the Treasure Trove Act must be understood in the former sense viz., discovery by chance; and that
connotes ignorance on the part of the finder before the discovery. It is in the light of this interpretation that the cases of Parshya and Trivenibai have
to be considered.
The point is one of first impression but the discussion in 31 Mad 397 may well be of assistance for the decision of the present case. It was a civil
case and the question there was whether a gold waist cord found in a field belonging to the temple of which the plaintiff was the manager was a
treasure as defined in Section 3 of the Treasure Trove Act. It was held that as it was not alleged to be hidden, it was not a treasure. While coming
to that conclusion it was pointed out that following the English Law the Treasure Trove Act (VI of 1878) only deals with the ''hidden'' treasure.
Under the English Law the crown can claim as bonum vacuum only that property which is found hidden and the real owner is not forthcoming. The
rule of English Law is well enunciated in the citation by Farwell, J. In (1903) 2 Ch 508 . It is as follows :--
Treasure-trove, is where any gold or silver in coin, plate or bullion, is found concealed in a house, or in the earth, or other private place, the owner
thereof being unknown, in which case the treasure belongs to the king or his granitee, having the franchise of treaure-trove.... If the owner, instead
of hiding the treasure, casually lost it, or purposely parted with it, in such a manner that it is evident he intended to abandon the properly altogether,
and did not propose to resume it on another occasion, as if he threw it on the ground, or other public place, or in the sea, the first finder is entitled
to the property, as against every one but the owner, and the king''s prerogative does not in-this respect obtain. So that it is the hiding, and not the
abandonment, of the properly that entitles the king to it.
Treasure-trove is gold or silver, in coin, plate, or bullion, whereof no person can now prove the property hidden in ancient lime and discovered
recently.
See Halsbury''s Laws of England, 2nd Edition, Volume II. Page 376.
A thing can be said to be hidden when the concealment and ownership of it are not known.
In Shyam Bahadur Koeri and Others Vs. The State, also, the same principle was applied. That was a case where a cowboy, by accident,
found a disc. The question was, whether the boy who was only a child, could be found guilty for not reporting the matter to the Collector, and the
mother who did not ask the child, has connived or abetted the offence. Their Lordships of the Division Bench said thai since the discovery was by
chance, he becomes a finder and the disc is a treasure. In paragraph 7 at page 314. it was held thus :--
..... The difference is manifest and there can be no two opinions about the same. But, even without going into these dictionary meaning it is evident
from the provisions of the Act that a treasure contemplated therein is an article concealed in the soil but the owner thereof is not known. Now
keeping this in view, let us consider the facts in the instant case.
In Shyam Bahadur Koeri and Others Vs. The State, , Nainar Sundaram, J., as he then was, accepted the interpretation given by Niyoji, J. In
AIR 1946 Nag 362 (supra) and held thus:
... The meaning of the word ''finder'' is ''one who comes upon or discovers by chance or search'', and the meaning of the word ''find'' is ''to come
upon by chance or in the course of events or to discover or attain by search or effort"".
From the above decisions, it is clear that the plaintiffs are aware that the silver coins were embedded or kept beneath their house, and while
demolishing the building, they could find out the same. This will not amount to ''treasure'' as defined under the Act, and the plaintiffs cannot be
treated as ''finders''. If that be so, the defendant cannot say that the plaintiffs are not the owners of the coins. As has been held in (1908) ILR 31
Mad 397 (supra), since the plaintiffs are in possession of the building, naturally what is kept beneath or underneath the building also belongs to
them. The ownership and possession of the building is not disputed. The finding of the silver coins wilhi.n Ihe compound is admitted.
The question whether the suit is barred by limitation or whether the Collector acted illegally in directing the plaintiffs to file a suit, have all
become academic, once it is held that the plaintiffs are the owners, and the provisions of Treasure Trove Act have no application to the facts of this
case.
On the question of law raised, the decision reported in AIR 1949 E& P 33 (Munswar Ali Khan v. Punjab Province) will be of some help. In
that case, a Division Bench of that High Court has held as follows:--
The question now is whether the conclusive nature of the finding of the Collector regarding the treasure being a treasure-trove should have entailed
dismissal of the plainliffs'' suits. As the words of S.B. which I have reproduced above, go to show, when a person is called upon by the Collector
to institute a suit, the scope of the suit is to have that person''s right to the treasure determined. In the suits with which we are concerned the
plainliffs did raise the question of their right to the treasure though they also challenged the correctness of the finding of the collector regarding the
nature of the treasure and the place wherefrom it was recovered. The second point no doubt could not be gone into by the Civil Court, but there
was no reason why the civil court should refuse to decide whether or not the plaintiffs have any right or title to the treasure ...
In this case also, plaintiffs have challenged the direction as well as the observations both by the Board of Revenue as well as the Collector. But
there is no prayer to set aside the same. But ultimately, the relief prayed for in the suit is for a declaration as against the Government that they are
the owners of 360 silver coins. Such declaratory suit is certainly maintainable before civil court under S. 34 of the Specific Relief Act. Even without
setting aside the orders of the Collector, the Civil Court is competent to declare the ownership of the coins.
Here, the question of setting aside the orders also will not arise, since the Collector, himself has directed plaintiffs to institute the suit within a
period of one month, from the date of receipt of his order. From the file, it can be seen that the suit was instituted within one month after the date of
communication of the order by the Collector. The Order of the Collector is always subject to the result of the suit. In that view of the matter, even
if there is no relief asked for selling aside the order, any decision by the Collector also will be subject to the result in this case. The substantial
question of law is, therefore, found against the appellant.
In the result, the second appeal is dismissed however, without any order as to costs.
Appeal dismissed.