Sukhdev Rai Kaushal Vs. Partul Chand 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. - 3. the rent controller had appointed a local commissioner to inspect the property who returned a report confirming the averments made in the petition and that he had found the back courtyard completely covered by the tin sheets and he also found the residential portion at the first floor being stored with the merchandise and some portions of the demised property at the ground floor and the stair case being kept in a bad state of disrepair and damage. it is brought out in evidence that the chandigarh administration had taken action for the unauthorized construction and served notices both on the landlord as well as on the tenant.k. kannan, j.1. the petition for eviction was filed under east punjab urban rent restriction act, 1949 on the grounds of change of user of the tenanted premises for a purpose other than to which it was let and that the respondent had committed such acts as likely to impair materially the value and utility of the building. there was another ground of non-payment of rent, which lost its significance on account of the fact that the tenant had at the first hearing paid the rent and there was no need for consideration of the same.2. the landlord's contention as regards the change of user was that the property was shop-cum-flat building and the building portion which was to be used for a residential purpose by the landlord was also put to use after the tenant vacated the premises and went to his own property which he had subsequently purchased and started using the residential portion for storing hardware good6.3. the rent controller had appointed a local commissioner to inspect the property who returned a report confirming the averments made in the petition and that he had found the back courtyard completely covered by the tin sheets and he also found the residential portion at the first floor being stored with the merchandise and some portions of the demised property at the ground floor and the stair case being kept in a bad state of disrepair and damage. the objection to the local commissioner's report by the tenant was that the local commissioner had visited the property without serving notice on him and that further the local commissioner and the petitioner-landlord had same clerk and he was biased in his report. he challenged the observation made in the report that the residential property was not being put to use as such and contended that he continued to reside there. the rent controller, however, accepted the report and came to the conclusion .that the tenant had used the property for a purpose other than to which it was let. on the other ground relating to the material impairment of the building by construction of a shed in the courtyard, the rent controller took notice of the fact that even the chandigarh administration had served notice for the unauthorized user of the property and referred to authorities on the aspect of a tenant putting up shed as constituting material impairment, upheld the contention on that ground also and ordered eviction. this decision was affirmed in the appellate court and the tenant is in revision assailing both the grounds which have been upheld in favour of the landlord.4. learned counsel for the petitioner states in the forefront of his arguments that the authorities ought not have relied on the local commissioner's report which was prepared without notice and vitiated by a bias. this objection regarding the report, as was being found by the authorities below, even if it is to be accepted and the report is discarded, there was still an admission of the tenant himself that during the subsistence of tenancy, he had vacated the residential portion and shifted to his own house elsewhere in chandigarh. learned counsel referred to the fact that after he had vacated the premises, his employee at the shop was in occupation of the residential portion. learned counsel for the respondent points out that there was no such pleading and on the other hand two other independent witnesses were examined to state that the residential portion of the premises had remained closed and only the hardware articles of the shop being stored at the premises. both the authorities below have referred to the fact that the residential portion of the property has not been used as such and there is no reason to take a different view from how the two authorities have considered the issue.5. even as regards the unauthorized construction made at the courtyard, which according to the landlord had caused a material impairment, apart from the local commissioner's report, it was a matter of admission by the tenant himself that there was a shed at the courtyard. his objection was that the said shed had been put up even before the commencement of the tenancy by the landlord himself and that he had not constructed the same. the landlord, who was a barrister had died and his son was examined, who spoke to the fact that his father had not put any construction of a shed at the courtyard and that it was only the tenant, who had raised such a shed. even as regards the construction, there were two independent witnesses who had spoken on behalf of the landlord about the faqt that the tenant alone had put up such a shed. the entire body of evidence of the tenant does not contain any whisper about who put up the construction at the courtyard. it was not elicited even in his examination-in-chief that the landlord had put up the construction even before the commencement of the tenancy and that he had not done the same. it is brought out in evidence that the chandigarh administration had taken action for the unauthorized construction and served notices both on the landlord as well as on the tenant. the contention of learned counsel for the petitioner is that the chandigarh administration did not precipitate the action pursuant to the notice, which only meant that on the date of filing of the petition, there was no construction. finding that there was a reference to the shed even in the local commissioner's report and there was also evidence about the fact that the tin shed was there to be in existence by the evidence as deposed by witnesses on the side of the landlord, learned counsel for the tenant sought to contend that it was only a temporary shed which was easily capable of being removed and if at all the shed was there, it was made to improve the value and did not cause any impairment in value of the building.6. while mere construction by the tenant even without authority from the landlord might not be actionable, as for instance when a construction was made by a tenant which went to improve the value of the building, still the courts have always approached the issue from the point of view of how the landlord perceives the construction to be. if, in his view, the construction made is without his authority and that he does not desire it, the landlord is entitled to insist that such construction which is unauthorized would materially impair the value. learned counsel for the respondent refers to a decision of the hon'ble supreme court in durga seed farm v. raj kumari chadha : (1995-2) 110 p.l.r. 643 (s.c.) which took the view that if on account of the unauthorized construction raised by the landlord, the tenant is exposed to the peril of resumption of the building by the chandigarh administration then the tenant would be liable to be evicted. this decision was followed by this hon'ble court in m/s united engineers through its sole prop. sarup singh and anr. v. nirmal bhasin : (2005-1) 139 p.l.r. 731 that also took the view that the very act of issuance of a notice by the administration for raising an unauthorized construction would make liable the tenant for eviction. this court held that it was irrelevant that the construction made was only temporary so long as it violated the provisions of law. this decision, in my view, squarely answers the issue that arises in this case that irrespective of the nature of construction as permanent or temporary, so long as such construction was unauthorized that exposed the landlord for resumption, it should be taken that such construction impaired the value and utility. learned counsel for the respondent also refers me to a decision in gurbachan singh and anr. v. shivalak rubber industries and ors. : (1996-2) 113 p.l.r. 694 (s.c.) which held that the finding of addition or alteration as constituting in material impairment is a mixed question of law and fact which the court would consider by the application of the correct principles. in this case, the hon'ble supreme court was dealing with the incident of a tenant constructing a lengthy roof over five shops by removing the original roof and the partition walls of the shops and converting them into stores and kotharies. it found the alterations to the shops and the conversion into sheds as factors proving material impairment. the consideration of all the relevant facts placed before the rent controller, i have no doubt in my mind that the act of the tenant in erecting a shed at the courtyard though may not have resulted in ultimate resumption by the chandigarh administration, it would still be actionable so long as it was unauthorized.7. for all the reasons, respective orders of the rent controller and the appellate authority are sustained and the civil revision petition is dismissed with costs assessed at rs. 5,000/-.