Niranjan Singh Vs. Smt. Kulwant Kaur 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. - the plaintiff naranjan singh has taken a plea that the marriage was simple and no dowry articles were given but on the other hand the appellants have taken a plea that huge dowry articles were given but the plaintiff and his family members were not satisfied with the dowry articles and raised a demand of car, cash, amount etc. their lordships have also observed that it is well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in eviaence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. moreover, it is the case of the appellants that naranjan singh and his son were not satisfied with the dowry articles and they were demanding more dowry and were humiliating and harassing the appellant kulwant kaur for bringing more dowry and thus she lodged fir against them. whether the learned lower appellate court was justified in reversing the well reasoned judgment merely for want of examination of publisher of news item? it is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. ) 452. it is, therefore, not possible to place reliance on newspaper report in absence of any other reliable documentary material.vinod k. sharma, j.1. this regular second appeal is directed against the judgment and decree dated 16.11.2004, passed by the learned lower appellate court vide which suit filed by the plaintiff/appellant seeking damages on the ground of defamation stands dismissed.2. the plaintiff/appellant brought a suit for recovery of a sum of rs. 50,000/- as damages on the plea that a news item published in the newspapers had defamed him and his family members.3. the learned trial court decreed the suit by holding that the news item published in 'aaj di awaj' was defamatory in nature. however, the damages of rs. 20,000/- only were granted against claim of rs. 50,000/-.4. the defendant/respondents preferred an appeal against the judgment and decree passed by the learned trial court. the appeal was accepted by the learned lower appellate court by recording following findings:12. it is admitted that harminder singh son of the plaintiff was married with kulwant kaur appellant. the plaintiff naranjan singh has taken a plea that the marriage was simple and no dowry articles were given but on the other hand the appellants have taken a plea that huge dowry articles were given but the plaintiff and his family members were not satisfied with the dowry articles and raised a demand of car, cash, amount etc. the relations between her and her husband became strained and harminder singh filed a petition under section 13 of the hindu marriage act for dissolution of marriage by a decree of divorce. on the other hand the appellant filed a complaint and also lodged fir under section 406/498-a/34 ipc. against the plaintiff and ors. in the meantime a news was published in the news paper 'aj di awaj' jalandhar regarding the demand of dowry by naranjan singh and his family members. it is the case of the plaintiff naranjan singh that this news item was transmitted by the appellants to defendant no. 4 for its publication in the daily news paper 'aj di awaj' but this fact is denied by the appellants. the appellants also filed an application to the s.s.p. gurdaspur levelling the allegations of maltreatment and beating by harminder singh to the appellant kulwant kaur. that case is still pending in the court. thus the case of the plaintiff naranjan singh is based on the news item. a copy of the news paper is ex.p.1. as already mentioned above the appellants have denied to have got this news published in the news paper. the publisher has not been examined in the court to know as to how he has got this news published. thus the maker of the statement to the news paper has not appeared into the witness box. it has been observed in the ruling amal kumar chatterjee v. state of u.p. and ors. (supra) that the presumption of genuineness attached under section 81 of the evidence act to a newspaper report cannot be treated as proof of the facts reported therein. their lordships have also observed that it is well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in eviaence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. in the case in hand as already mentioned above the maker of the statement has not appeared into the witness box and no evidence has been brought on record to show as to who had got this news published in the newspaper. so this piece of evidence is only hear-say and cannot be read into evidence. moreover, it is the case of the appellants that naranjan singh and his son were not satisfied with the dowry articles and they were demanding more dowry and were humiliating and harassing the appellant kulwant kaur for bringing more dowry and thus she lodged fir against them. that case is still pending in the court. in this way no court has given its verdict that the demand of dowry by the plaintiff and his family members is a concocted story by the appellants and in fact they were not demanding dowry. naranjan singh plaintiff also filed a complaint under section 500 ipc against kulwant kaur and ors. which was dismissed by the court of shri jasbir singh, judl. magistrate, 1st class, gurdaspur and a copy of the order is ex.d.l. thus the court of shri jasbir singh, judl. magistrate, 1st class, gurdaspur, came to the conclusion that no offence under section 500 i.p.c. is made out.5. the learned counsel for the appellant contends that the appeal raises the following substantial questions of law:whether the learned lower appellate court was justified in reversing the well reasoned judgment merely for want of examination of publisher of news item?6. in support of the substantial question of law the learned counsel for the appellant contends that once the news item was duly exhibited, and relied upon by the learned trial court, it was not open to the learned lower appellate court to have reversed the findings merely for want of examination of publisher. the contention, therefore, is that the finding of learned lower appellate court is perverse, which deserves to be set aside.7. on consideration, i find no force in the contention raised by the learned counsel for the appellant. a reading of the findings recorded by the learned lower appellate court, reproduced above, would show that the plaintiff has not been non-suited for non-examination of publisher as contended, but for the reason that in absence of examination of publisher the source of news item was not proved. the learned lower appellate court held, that once the defendant/respondents denied to have authored the news item, in absence of involvement of defendant/appellant with the news item, they could not be fastened with the liability of damages.8. the findings of the learned lower appellate court finds support from the judgment of the hon'ble allahabad high court in the case of amal kumar chatterjee v. state of u.p. and ors. 2000 (1) civil court cases 544, wherein the hon'ble allahabad high court has been pleased to lay down as under:2. shri mishra has submitted that the police has prepared a list of mafia leaders in which the name of the petitioner has been included and the said action is wholly unjustified in law. the only document filed along with the petition is a photo copy of a newspaper report.in laxmi raj shetty v. state of tamil nadu : 1988 (3) s.c.c. 319 it has been held as under:we cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. a report in a newspaper is only hearsay evidence. a newspaper is not one of the documents referred to in section 78(2) of the evidence act, 1872 by which an allegation of fact can be proved. the presumption of genuineness attached under section 81 of the evidence act to a newspaper report cannot be treated as proof of the facts reported therein. it is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.this has been reiterated in quamarul islam v. s.k. kanta : 1994 (1) j.t. (s.c.) 452. it is, therefore, not possible to place reliance on newspaper report in absence of any other reliable documentary material.9. the finding recorded by the learned lower appellate court, therefore, is based on settled law, and therefore cannot be said to be perverse, as contended by the learned counsel for the appellant.10. the substantial question of law is accordingly answered against the appellant.11. the appeal is ordered to be dismissed, being devoid of any merit.