Arjun Dass Vs. Ram Kishan - 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. - balraj arora's, case pertinent to the point under consideration are best noticed verbatim.s.k. jain, j.1. challenge in revision here is to the order of ejectment passed against the petitioner tenant on the ground of non payment of arrears of rent a reference to the material on record shows that on 21.1.1982 arjun dass filed a petition for the ejectment against his tenant ram kishan, the respondent here, inter alia on the ground of non payment of arrears of rent with effect from 1.6.1981 to 31.5.1982 amounting to rs. 4051/-. notice of this petition was served on the respondent for 16.3.1982 which was the date fixed for hearing. the respondent did not appear inspite of service and was consequently ordered to be proceeded against ex-parte. may 24, 1982 was the date fixed for recording of ex-parte evidence of the landlord arjun dass but in the later part of the day respondent appeared and filed an application seeking the setting-aside of the ex-parte order passed against him on that very day in the forenoon. this application was eventually allowed by the rent controller and the ex-parte order was set aside on 6.12.1982. on that very day, the rent controller assessed interest at rs. 500/- and costs at rs. 40/- and the case was adjourned to 17.12.1982 for tendering the amount of arrears of rent alongwith interest and costs as assessed above and also for filing written statement. on 17.12.1982, the said amount was tendered and was accepted by the landlord under protest. after the written statement was filed, besides others, following issue no. 1 was framed : -issue no. 1 :- 'whether tender dated 17.12.1982 is valid tender, if not to what effect.'this issue was decided in favour of the tenant and the petition was dismissed by the learned rent controller vide his order dated 2.5.1984.2. an appeal by the landlord was also dismissed by the appellate authority on 2.6. 1986, hence, this revision.3. learned counsel for the petitioner (landlord) has focussed his attention to the subject matter of issue no. 1, on which a finding adverse to the landlord has been recorded by both the courts below, holding that the tender made on 17th december, 1982, was a valid tender. it is submitted that the appellate authority was in error in distinguishing the facts of the present case for extracting the same for the ambit of the law settled even by this court in earlier authorities.4. reference has been made in this behalf to vinod kumar v. hurbans singh azad, (1977) 79 p. l. r. 144 (f.b.) manohar lal chopra v. balraj arora, (1953)55 p. l r. 295. meja singh v. karan singh, (198-1) 83 p. l. r. 386. and radha kishan alias radhey sham raj v. angoori devi, (1986-2) 90 p. l. r. 649.5. learned single judge of this court was seized of the very point under consideration now, as it was also a case where an ex parte order had been set aside. the observations of soni, j. in manohar lal chopra v. balraj arora's, case pertinent to the point under consideration are best noticed verbatim.'as i have said before so far as the payment of arrears of rent on the first day of hearing are concerned, the matter is concluded by the provisions of rule 7 of order 9. if the court sets aside the ex-parte proceedings, it means that the court accepts the defendant's excuse for not being able to be present at the hearing. the result of the court's acceptance is that the defendant is put in the same position as if he had actually appeared on the first day of hearing and on the first day of hearing he did bring the money. but even if he did not, if his excuse is accepted that he was misled by the plaintiff and therefore was not able to come, his tender of money to the court immediately is a proper tender on the first day of hearing'.6. harbans singh j. (as he then was) draw assistance from the above observations while holding in dwarka devi v. hans raj, (1963) 65 p. l. r. 705. that the deposit made on the date on which ex-parte order was set aside, would be treated as if the same was made on the first date of hearing fixed for appearance.7. a full bench of this court in vinod kumar v. harbams singh azad's case, while noticing the above-said observations held as under:-xx xx xx'at the time when the tenant approached the rent controller with an application far setting aside the ex-parte order, he was obviously aware of the finding of the ejectment application against him and its disposal on an earlier date, though ex-parte. if he was desirous of taking the benefit available to a tenant under the rent act he should have tendered the arrears of rent etc. on the day when the proceedings were restored'.8. a division bench of this court was closeted with a similar situation in meja singh v. karan singh, (1981) 83 p. l. r. 386 and drew a conclusion in the following terms :-in a case where on an application by the landlord for eviction of the tenant on the ground of default in payment of rent, an ex-parte order for eviction is passed and later on at the instance of the tenant the ex-parte order is set-aside, the date on which the order setting aside the ex-parte order is pronounced would be the date of first hearing of the application for eviction within section 13(2) (i) proviso ok which if the tenant were to tender the arrears of rent alongwith interest and costs he could save his eviction.9. identical question came up for consideration before their lordship's of the supreme court in sham lal v. atma nand jain sabha registered, ludhiana, (1987-1) 91 p. l. r. 1 (s.c.) and it was held that the words the 'first hearing of the application' have to be interpreted in a manner which promote the object of this beneficial legislation. viewed from this aspect we cannot but hold that the words 'first bearing of the application' as used in proviso (i) to sub-section (2) of section 13 of the act does not mean the day fixed for return of the summons or the returnable day but the day when the court applies its mind to the case.10. the above view was followed by j. v. gupta, j. (as he then was) in m/s. kishori lal prem nath v. kanwar lal and ors., (1989-1) 95 p. l. r. 522,11. in view of the above discussion only irresistible conclusion is that the 'first date of hearing' in the instant case was 6.12 1982 when the ex-parte order was set aside and interest and costs were assessed by the rent controller.12. it being a case under the haryana urban (control of rent and eviction) act, it is expedient to examine the relevant provisions of section 13(2) (i) (proviso) of the act, which read as under : -'provided that if the tenant, within a period of 15 days of the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest, to be calculated by the controller, at 8% per annum, on such arrears together with such 0 costs of the application. if any, as may be allowed by the collector, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid'.in view of the above provisions, the arrears of rent alongwith interest and costs tendered by the tenant on 17.12.1982 i. e. within 15 days from 6.12.1982, was certainly valid tender13. as a sequel to the above finding, no fault can be found with the impugned judgment.14. resultantly, this petition fails and is dismissed.15. no order as to costs.