Joginder Singh and ors. Vs. State of Punjab and anr. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - their unbecoming behaviour towards them led joginder singh disowning nirmal singh as well as his wife balwinder kaur. 2 contested this petition urging that her husband, father-in-law, mother-in-law and sister-in-law were not satisfied with the dowry she had brought in marriage. they fulfilled this demand for their daughter's happiness but her in-laws were not satisfied after the receipt of this amount. on this happy occasion, her brother and sister-in-law had taken sweets and clothes to her in-laws house, but their in-laws in an anger refused to accept the sweets and returned them after humiliating them. explanation :(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ;or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. a breach of trust can be civil liability as well as criminal liability.m.l. singhal, j.1. this is a petition filed by joginder singh, mohinder kaur and pal kaur under section 482 of cr.p.c. whereby they have prayed that case fir no. 253 under section 406/498-a ipc registered at p.s. sadar patiala against them be quashed and further any other proceedings taken therein subsequent to the registeration of that fir be also quashed.2. balwinder kaur, respondent no. 2, was married to nirmal singh who is son of joginder singh and mohinder kaur petitioners while brother of pal kaur, petitioner. they were married on 24.1.1992. they did not have smooth married life and disputes began brewing between them soon after marriage. eventually, on 25.11.1992, compromise annexure p.1 was brought about between them through the intervention of panchayat and common relations. it was decided in the wake of compromise that balwinder kaur and nirmal singh would reside separate from the in-laws of balwinder kaur. from 25.11.1992 onwards, they started putting up in a rented house separate from joginder singh, his wife and daughter. in the wake of that compromise balwinder kaur and nirmal singh took away all articles of dowry to their separate house. a child was born to balwinder kaur from the loins of nirmal singh on 13.9.1993. according to joginder singh and his family, nirmal singh and his wife were not having cordial relations towards them. their unbecoming behaviour towards them led joginder singh disowning nirmal singh as well as his wife balwinder kaur. factum of disowning them was got published by joginder singh in 'chardi kalan' punjabi daily, patiala of the issue dated 3.10.1993. factum of disowning them was also conveyed by joginder singh to ssp, patiala through letter dated 9.10.1993 which was duly received in that office vide receipt no. 1402 dated 9.10.1993. said letter is annexure p.2. according to joginder singh and his family, there was, thus no connection left between them, on the one hand and nirmal singh and balwinder kaur on the other especially after compromise, annexure p.1 dated 25.11.1992 and the factum of disowning them by him through publication in chardi kalan, punjabi daily, patiala dated 3.10.1993. there was altogether snapping of their relations with nirmal singh and his wife. if there was snapping of the relations between them, natural consequence would be that through case fir no. 253, dated 27.10.1995 under section 405/498-a ipc registered at p.s. sadar, patiala, on the complaint of balwinder kaur (which culminated into registration of this case) joginder singh, his wife and 2 daughters would be harassed. sukhpal kaur, a young daughter of joginder singh lost her life because of the pressure of the police which she could not bear. it is because of this background that joginder singh etc. have prayed for the quashing of the fir.3. respondent no. 2 contested this petition urging that her husband, father-in-law, mother-in-law and sister-in-law were not satisfied with the dowry she had brought in marriage. they taunted and harassed her. they demanded a sum of rs. 50,000/- to be brought by her from her parents. she brought rs. 50,000/- from her parents despite the fact that they were not in a position to arrange this amount. they fulfilled this demand for their daughter's happiness but her in-laws were not satisfied after the receipt of this amount. it was, however a vain hope on her part. they again raised their demand. 'eventually, compromise was brought about between nirmal singh and his wife. in the wake of that compromise they started putting up separate from the parents of nirmal singh. articles of dowry were, however, not given to them when they shifted to separate house. respondent no. 2 remained with her husband for 4/5 months and thereafter respondent no. 2 was sent by her husband to the parents house for delivery. a child was born on 13.9.1994 but no body came to sec the child. joginder singh has disowned his son only to deprive her otherwise he is very much in his parents house and is doing joint family business. the matter was taken to the women cell, patiala and s.i. sukhdev kaur, incharge of the women cell, patiala found that they are greedy and actuated by greed the put forth demand and earlier they had put forth demand for rs. 50,000/- through nirmal singh which was fulfilled. thereafter, they put forth demand for another rs. 50,000/- and on their refusal to fulfil this demand balwinder kaur was not accepted in the matrimonial home and thereafter the panchayat assembled and compromise took place on 25.11.92 between nirmal singh and balwinder kaur. s.i. sukhdev kaur reported that it was a matter concerning the demand of dowry by the husband side and the non fulfilment of this demand by the wife.4. marriage took place on 24.1.92 between nirmal singh and balwinder kaur. their marriage ran into rough weather eventually on 25.11.92 and compromise took place between them. in the wake of that compromise they decided to reside together in a house separate from the petitioners i.e. joginder singh's family.5. joginder singh disowned his son nirmal singh and his wife balwinder kaur through notice issued by him in chardi kalan, punjabi daily of the issue dated 3.10.93. factum of thus dis-owing was conveyed by him to the ssp, patiala vide letter dated 9.10.93 which was received in the office of ssp, patiala vide receipt no. 1402, dated 9.10.93 (annexure p-2).6. if at all demand for rs. 50,000/- took place that took place prior to 25.11.92 as is apparent from annexure p-3, the relevant portion of which reads as under :'besides this, the father and brother of the applicant deposed that the marriage of balwinder kaur was solemnised on 24.1.92 with nirmal singh son of joginder singh resident of partap nagar, patiala and immediately after the marriage her mother-in-law, father-in-law, sister-in-law and brother-in-law started harassing her on account of bringing of inadequate dowry and on that account they were given rs. 50,000/- in cash also. after that they became more greedy. they further demanded rs. 50,000/- through nirmal singh. on their refusal, they refused to accept balwinder kaur, regarding which an application was moved to the ssp, patiala. after a panchayat, there was a written agreement dated 25.11.92 between the parties. after that her husband started living in a separate rented house where she became pregnant. since the first delivery is to be performed in the maternal home, she was sent to her maternal home with her brother and sister-in-law (brother and bhabhi). after sending her, her husband vacated the rented house and joined his parents home. on 13.9.1993, a son was born to balwinder kaur. on this happy occasion, her brother and sister-in-law had taken sweets and clothes to her in-laws house, but their in-laws in an anger refused to accept the sweets and returned them after humiliating them. neither they had come to see the child. her in-laws do not allow nirmal singh to come to see her child and also refused to return the dowry articles. the whole articles are in the possession of her in-laws, which are being used by her in-laws.'demand of rs. 50,000/- if at all took place prior to 25.11.92. later demand if at all took place was not fulfilled.7. section 498-a of ipc defines cruelty in the following terms:'whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.explanation :(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ; or(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.'8. in complaint, annexure p.4, which is the foundation of the fir, there is no allegation whatsoever that the demand being put forth by joginder singh etc. was ever followed by any harassment to balwinder kaur. assuming that no body came to visit balwinder kaur after she had delivered child to give her customary gifts is not some thing which can be said to be cruelty on the part of the husband and his parents as defined in section 498-a of the ipc. in my opinion, section 498-a ipc is not even remotely attracted so far as this case is concerned.9. section 405 ipc defines the offence of criminal breach of trust. it reads as under:'whether, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust.'10. in my opinion, there appears to be no dishonest intention to misappropriate or convert to their own use dowry if balwinder kaur had brought in marriage. assuming that she had brought dowry in marriage and the same was placed by her with her in laws after she stepped in the matrimonial home even then it cannot be said that they have retained the dowry with the intention to misappropriate it to their own use for ever. a breach of trust can be civil liability as well as criminal liability. every breach of trust does not necessarily give rise to criminal liability. if dowry brought by balwinder kaur is being retained unjustifiably by joginder singh etc. she may, if so advised, institute a civil suit for the recovery of articles of dowry or equivalent value thereof in the civil court.11. it would bear repetition that the marriage took place on 24.1.1992 and the issue of return of articles of dowry was raked up in october 1995. to me it seems that balwinder kaur unfortunately has not been able to adjust herself in the matrimonial home and through the instrumentality of this fir she is attempting her rehabilitation in the matrimonial home.12. it was held in state of haryana v. chaudhary bhajan lal etc., air 1992 sc 604 that this court shall quash criminal prosecution in the exercise of powers vesting in it under section 482 cr.p.c. but this power should be exercised sparingly and that too in the rarest of rare cases. hon'ble supreme court has laid down certain categories of cases by way of illustration where this court can quash criminal prosecution. in the following categories of cases this court may in the exercise of power under article 226 or under section 482 cr.p.c. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice :1) where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.2) where the allegations in the first information report and other materials, if any, accompanying the fir do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the code except under an order of a magistrate with in the purview of section 155(2) of the code.3) where the uncontroverted allegations made in the fir or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.4) where, the allegations in the fir do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under section 155(2) of the code.5) where the allegations made in the fir or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.6) where there is an express legal bar engrafted in any of the provisions of the code of the concerned act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the code or the concerned act, providing efficacious redress for the grievance of the aggrieved party.7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'13. for the reasons given above, i am of the opinion that registration of criminal case against joginder singh etc. was misconceived and was by a oblique motive. so, this criminal misc. is accepted and case fir no. 253 dated 27.10.1995 is quashed. smt. balwinder kaur may institute civil suit for the return of articles of dowry or equivalent value thereof. if she does so, the civil court shall be liberal in allowing her the exclusion of time spent by her, in the court.