Narender Mohan Vs. Hari Ram and ors. - 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.vinod k. sharma, j. 1. this regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which suit for possession by way of specific performance filed by the respondent plaintiff to enforce the agreement dated 17.10.1983 has been decreed. 2. it was pleaded in the plaint that the plaintiff was always ready and willing to perform his part of the contract under the agreement dated 17.10.1983 and that he was entitled to get the sale deed executed in his favour on payment of rs.48,000/-after adjusting rs.25,000/-which was paid to the appellant-defendant at the time of execution of the agreement of sale. 3. the defendant contested the suit. while admitting the agreement of sale the defendant showed his willingness to execute the sale deed subject to the condition that the remaining land which is under the tenancy of the plaintiff-respondent shall be surrendered by handing over the possession back to him. the case set up by the defendant was that he had entered into an agreement on an assurance by the plaintiff-respondent that he would surrender his tenancy right over the remaining land, which was in his possession as tenant at will. 4. learned courts below in view of the admission of the defendant-appellant regarding the execution of the agreement of sale, decreed the suit by observing that the plaintiff was always ready and willing to perform his part of the contract, whereas it was the defendant-appellant who was not willing to perform his part of the contract. the plea of the defendant appellant that the agreement was executed on the assurance that the land in possession of the plaintiff as tenant would be surrendered, was rejected on the plea that no oral evidence can be read in evidence to prove the documents. it was observed that as no such mention was made in the agreement of sale that it was subject to his surrendering possession over the remaining land. no reliance could be placed on oral evidence led by the appellant. 5. the judgment and decree passed by the learned trial court was affirmed by the learned lower appellate court. mr.v.k.jain, learned senior counsel appearing on behalf of the appellant contends that the following substantial questions of law arise for consideration in this appeal:1. whether the courts below were justified in decreeing the suit filed by the plaintiff-respondent in spite of the fact that palia plaintiff did not appear in the witness box to support his case? 2. whether non-appearance of palia would lead to a conclusion that the case set up by the defendant-appellant qua surrendering of tenancy stood proved? 3. whether the courts below were justified in decreeing the suit by ignoring the provisions of section 20 of the specific relief act, 1963?6. in support of the above mentioned questions of law learned senior counsel for the appellant by placing reliance on the judgment of hon'ble supreme court in the case of janki vashdeo bhojwani and anr. v. indusind bank ltd. and anr. : air2005sc439 contends that it was palia alone who had personal knowledge about the transaction and therefore, the evidence led by the attorney on his behalf could not be accepted to defeat the rights of the defendant-appellant, therefore, the courts below committed an error in decreeing the suit. 7. this plea of the appellant cannot be accepted. the learned courts below have rejected the plea raised by the appellant-defendant in view of sections 91 and 92 of the evidence act which bar the leading of oral evidence with regard to the documents. it is not the case set up by the defendant-appellant that any independent or prior oral agreement was entered into between the parties. the positive stand of the appellant was that this agreement was entered into on the assurance given by the plaintiff-respondent that he would be surrendering his tenancy right over the remaining land. however, keeping in view the fact that no such stipulation was contained in the agreement executed between the parties, the learned courts below were justified in rejecting the case set up by the defendant-appellant. it cannot be said that the attorney was not competent to depose qua the written agreement which was proved on record. rather the factum of execution of the agreement was duly admitted by the defendant-appellant and therefore, the first question of law sought to be raised does not arise and in any case has to be answered against the defendant-appellant. 8. mr. v.k.jain, learned senior counsel appearing on behalf of the appellant thereafter contended that the value of the property in dispute is much higher and keeping in view the relationship of the parties i.e. of landlord and tenant it has to be held that the respondent plaintiff was in dominating position in getting the contract executed. 9. in order to show that the plaintiff-respondent was in dominating position the learned senior counsel contends that the price of the land at the time of agreement of sale was about rs.4 lacs per acre whereas it was agreed to be sold at the rate of rs.73,000/-per acre, therefore, provisions of section 20 of the specific relief act (for short the act) come into operation as section 20(2)(a) provides that the contract which gives unfair advantage to the plaintiff cannot be enforced. 10. learned senior counsel also contends that as the value of the property as on the date is rs.6 crores per acre in view of area coming within the municipal limits the execution of the agreement would cause undue hardship and therefore, he is entitled to protection of section 20(b) of the act. learned senior ounsel further contends that as the relief of specific performance is an equitable relief and in order to do equity he is prepared to give rs.25 lacs in case the plaintiff-respondent retains the possession and does not get the sale deed executed and in alternative would give rs.1 crore in case the plaintiff-respondent returns the possession. 11. this plea of the learned counsel for the appellant also cannot be accepted in view of law laid down by hon'ble supreme court in the case of savita rani v. deepak rai 2001 (2) rcr (civil) 647 as no such plea was raised before the earned courts below as in order to take benefit under section 20 of the act the parties have to set up their case before the learned trial court and lead evidence on the said point. 12. the only contention raised by the appellant before the learned courts below was that there was inadequacy of consideration. the said contention was considered and rejected and no error can be found with the said finding. 13. it may also be mentioned that in support of the contention that the appellant was entitled to the benefit of section 20 of the act reliance was placed on the judgment of hon'ble supreme court in the case of his holiness acharya swami ganesh dassji v. sita ram thapar : air1996sc2095 . 14. the judgment does not support the case of the appellant defendant as in the present case it was proved on record that the plaintiff had gone for registration of the agreement of sale on the date fixed and thereafter had even issued notice to the defendant appellant to execute the sale deed on the date fixed. however, it was the defendant-appellant who was not ready and willing to execute the sale deed on the plea that the plaintiff has to first surrender the possession of the remaining land and therefore, the defendant-appellant was not ready to get executed the sale deed. consequently, the questions of law as framed do not arise in this appeal or in any case have to be answered against the appellant. 15. no ground is made out to interfere with the concurrent findings of fact and substantial question of law sought to be raised are to be answered against the appellant. 16. dismissed.