Smt. Phoolan Rani Vs. Smt. Pushpa Wati 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. - it was als6 alleged in the petition that its floor level is about two feet below the road level and water get accumulate during the rainy season ;the entire building is in a dilapidated condition and thus the same is unfit and unsafe for human habitation. 4. the rent controller, after finding that the building has become unfit and unsafe for human habitation, passed an order of ejectment against the tenant. jain, advocate, learned counsel for the petitioner submitted that the authorities below have misread the report of the building expert, aw 3/2. he further contended that the premises in possession of the tenant require only minor repairs and the building has not become unfit and unsafe for human habitation a claimed by the landlady. in my view, appearance of a few cracks in a building does not raise a presumption that the building has become unfit and unsafe for human habitation. 1, firstly there is no allegation in the petition that the roof requires replacement and secondly, even if it requires replacement, that cannot be a ground for ejecting a tenant on the plea that the building has become unfit and unsafe for human habitation.orderv.k. jhanji, j.1. this is tenant's revision.2. pushpa wati (respondent herein) filed a petition under section 13 of the east punjab urban rent restriction act for the ejectment of the tenant, namely ram parkash, from the property in dispute which consists of two shops on the ground that the property in dispute is 70 years' old. it was als6 alleged in the petition that its floor level is about two feet below the road level and water get accumulate during the rainy season ; the entire building is in a dilapidated condition and thus the same is unfit and unsafe for human habitation.3. the petition was contested by the tenant who denied the allegations made in the petition.4. the rent controller, after finding that the building has become unfit and unsafe for human habitation, passed an order of ejectment against the tenant. the tenant preferred appeal before the appellate authority who dismissed the appeal and affirmed the order of the rent controller. it may be mentioned at this stage that tenant died during the pendency of the appeal before the appellate authority and his legal representatives were brought on the record. this civil revision has been filed by his widow mst. phollan rani who has impugned the orders of the authorities below.5. mr. s, p. jain, advocate, learned counsel for the petitioner submitted that the authorities below have misread the report of the building expert, aw 3/2. he further contended that the premises in possession of the tenant require only minor repairs and the building has not become unfit and unsafe for human habitation a claimed by the landlady.6. on the other hand, learned counsel for the respondent submitted that both the courts below have returned a finding in favour of the landlady and, therefore, calls for no inteference by this court.7. after hearing the learned counsel for the parties, i am of the view that this civil revision deserves to succeed. the order of ejectment was passed by the authorities below primarily on the ground that the floor level of the shops is about two feet below the road level and, therefore, during rainy season, water must be accumulating in the building. it was also found that the walls have developed some cracks and roof of one shop requires replacement. in support of this finding, the appellate authority relied upon the report of the building expert, aw 3/a. i find from the record that the shops in possession of the tenant is a part of bigger building the remaining building is in possession of the landlady. in her petition, though she has alleged that the property is more than 70 years' old and the same is in a dilapidated condition, yet shri b. l. nanda, aw-3. building expert, produced by the landlady has not stated in his report with regard to the condition of the building in possession of the landlady. nothing has been brought on record to show whether the remaining building is also below the road level. shrl b. l. nanda, in his report aw-3/a has stated that roof of shop no. 2 had been re-laid as the original roof made out of kairies and wooden beams had given in. it was replaced by r. s. beams instead of wooden beams and tees instead of karries. in the site-plan he has shown certain cracks in the two shops and from the same it is evident that there are two cracks in shop no. 1 and three cracks in shop no. 2. shri b l. nanda building expert, in his statement or report has not mentioned as to whether the building in possession of the landlady has also developed cracks or not. in my view, appearance of a few cracks in a building does not raise a presumption that the building has become unfit and unsafe for human habitation. in the present case, the building expert himself has admitted in his statement that the cracks can be repaired with regard to the roof of shop no. 1, firstly there is no allegation in the petition that the roof requires replacement and secondly, even if it requires replacement, that cannot be a ground for ejecting a tenant on the plea that the building has become unfit and unsafe for human habitation. according to the building expert, roof of shop no; 2 was reward and for that matter i see no reason as to why roof of shop no. 1 cannot be re-laid as was done in the case of shop. no. 2. it has also come on record that there is a drain in front of the shops and the water passes through the drain and therefore simply because the level of the shop is lower than the road level, is not enough to assume that water must be accumulating during the rainy season.8. in this view of the matter, the orders of the authorities below cannot be sustained. consequently, this civil revision is allowed and the orders of the authorities below are set aside with no order as to costs. civil misc. no. 3406-cii-1985 also stands disposed of.

Judgment:
ORDER

V.K. Jhanji, J.

1. This is tenant's revision.

2. Pushpa Wati (respondent herein) filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act for the ejectment of the tenant, namely Ram Parkash, from the property in dispute which consists of two shops on the ground that the property in dispute is 70 years' old. It was als6 alleged in the petition that its floor level is about two feet below the road level and water get accumulate during the rainy season ; the entire building is in a dilapidated condition and thus the same is unfit and unsafe for human habitation.

3. The petition was contested by the tenant who denied the allegations made in the petition.

4. The Rent Controller, after finding that the building has become unfit and unsafe for human habitation, passed an order of ejectment against the tenant. The tenant preferred appeal before the Appellate Authority who dismissed the appeal and affirmed the order of the Rent Controller. It may be mentioned at this stage that tenant died during the pendency of the appeal before the Appellate Authority and his legal representatives were brought on the record. This civil revision has been filed by his widow Mst. Phollan Rani who has impugned the orders of the authorities below.

5. Mr. S, P. Jain, Advocate, learned counsel for the petitioner submitted that the authorities below have misread the report of the building expert, AW 3/2. He further contended that the premises in possession of the tenant require only minor repairs and the building has not become unfit and unsafe for human habitation a claimed by the landlady.

6. On the other hand, learned counsel for the respondent submitted that both the courts below have returned a finding in favour of the landlady and, therefore, calls for no inteference by this Court.

7. After hearing the learned counsel for the parties, I am of the view that this civil revision deserves to succeed. The order of ejectment was passed by the authorities below primarily on the ground that the floor level of the shops is about two feet below the road level and, therefore, during rainy season, water must be accumulating in the building. It was also found that the walls have developed some cracks and roof of one shop requires replacement. In support of this finding, the Appellate Authority relied upon the report of the Building Expert, AW 3/A. I find from the record that the shops in possession of the tenant is a part of bigger building The remaining building is in possession of the landlady. In her petition, though she has alleged that the property is more than 70 years' old and the same is in a dilapidated condition, yet Shri B. L. Nanda, AW-3. Building Expert, produced by the landlady has not stated in his report with regard to the condition of the building in possession of the landlady. Nothing has been brought on record to show whether the remaining building is also below the road level. Shrl B. L. Nanda, in his report AW-3/A has stated that roof of shop No. 2 had been re-laid as the original roof made out of kairies and wooden beams had given in. It was replaced by R. S. beams instead of wooden beams and Tees instead of Karries. In the site-plan he has shown certain cracks in the two shops and from the same it is evident that there are two cracks in Shop No. 1 and three cracks in Shop No. 2. Shri B L. Nanda Building Expert, in his statement or report has not mentioned as to whether the building in possession of the landlady has also developed cracks or not. In my view, appearance of a few cracks in a building does not raise a presumption that the building has become unfit and unsafe for human habitation. In the present case, the building expert himself has admitted in his statement that the cracks can be repaired With regard to the roof of Shop No. 1, firstly there is no allegation in the petition that the roof requires replacement and secondly, even if it requires replacement, that cannot be a ground for ejecting a tenant on the plea that the building has become unfit and unsafe for human habitation. According to the Building Expert, roof of shop No; 2 was reward and for that matter I see no reason as to why roof of shop No. 1 cannot be re-laid as was done in the case of shop. No. 2. It has also come on record that there is a drain in front of the shops and the water passes through the drain and therefore simply because the level of the shop is lower than the road level, is not enough to assume that water must be accumulating during the rainy season.

8. In this view of the matter, the orders of the authorities below cannot be sustained. Consequently, this civil revision is allowed and the orders of the authorities below are set aside with no order as to costs. Civil Misc. No. 3406-CII-1985 also stands disposed of.