Krishna Devi Vs. Municipality - 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. - 1. this is unsuccessful plaintiffs regular second appeal.n.k. kapoor, j.1. this is unsuccessful plaintiffs regular second appeal.2. plaintiff filed a suit for permanent injunction restraining the defendant, municipal committee from issuing teh bazari of khokha in occupation of baldev raj, defendant no. 2, in front of premises bearing no. 4143 situate at ram bagh road, ambala sadar/ambala cantt. as per averments made in the plaint, it has been stated that the plaintiff is owner in possession of premises no. 4143. defendant municipal committee had been leasing out the site beneath the wooden khokha to certain persons and finally baldev raj, defendant no. 2, was inducted as a licencee in respect of the khokha. according to the plaintiff, the existence of khokha impaired the value and utility of the house which the plaintiff purchased vide sale deed dated 24.3.1982. hence the present suit.3. defendant no. 1 in its written statement has taken the plea that the suit is not maintainable in the present form; that the civil court has no jurisdiction; that no notice under section 80 of the code of civil procedure was given before filing the suit. however, the defendant admitted that the khokha in dispute was given on teh bazari earlier to kharaiti lal, joti parshad and janak raj and that baldev raj has applied for transfer of the khokha on teh bazari in his name. it has further been stated that the municipal committee had the right to issue teh-bazari licence without, any hindrance.4. on the pleadings of the parties, following issues were framed:-1. whether defendant no. 1 is not entitled to transfer teh-bazari from kharaiti lal etc. to defendant no. 1 as alleged? opd2. whether existence of khokha in front of the house of the plaintiff has materially impaired the value and utility of the building, if so, its effect? opd3. whether the suit is not maintainable? opd-14. whether civil court has got no jurisdiction? opd-15. whether no notice under section 80 cpc or under the mc act has been served upon the defendant no. 1, if so, its effect? opd-16. whether the plaintiff has got no locus standi to file the suit? opd-2 7.7. relief.the trial court on considering the evidence led found no merit in any of the contentions raised by the plaintiff and so dismissed the suit vide judgment and decree dated 13,3.1985.5. before the appellate court challenge was made to the conclusion of the court of issue nos. 1 and 2. the appellate court once again examined the matter, and found no ground to differ with the conclusion arrived at by the trial court. resultantly, the appeal too was dismissed.6. before me, almost identical pleas have been raised which did not find favour with any of the courts below. learned counsel for the appellant, however, once again pressed that the matter be got examined by appointing a local commissioner so as, to see, the location of the khokha, according to him, the same is in front the door of the house of the plaintiff. according to the learned counsel for, the appellant, the placement of khokha in front of the entrance of the house interferes with her right of ingress and egress. the lower appellate court examined this very aspect of the matter and has observed that the plaintiff in her pleadings has nowhere alleged that the khokha was. interfering in her right of access to the building. even otherwise, there is no evidence on record to support this assertion of the counsel for the appellant. issues now raised are essentially issues of fact. the courts below on the basis of evidence have come to the conclusion that no such inconvenience is being caused to the plaintiff by permitting the contesting defendant carrying on his business at the site allotted to him by placing a khokha on the municipal land. concededly, the vacant land adjacent to the house of the plaintiff vests in the municipal committee and as per section 182 of the municipal act, the municipal committee is competent to give the same on teh-bazari to any person. thus, i find no infirmity in the conclusion arrived at by the courts. the appeal being devoid of any merit is consequently dismissed.