Sant Lal Juneja and anr. Vs. Des Raj 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. - 8. counsel for the respondents, on the other hand, in support of the order has urged that on the facts and circumstances of the case, as noticed by the learned sub judge, the impugned order is perfectly just and proper. since these things were very well within the knowledge of the plain tiff, the 'court held that allowing the plaintiff to lead evidence of such a nature would merely be a roving enquiry and so would be beyond the scope of additional evidence as the party has to satisfy that he could n't adduce such evidence despite due diligence.n.k. kapoor, j.1. the petitioner has challenged the order of subordinate judge i class, rohtak whereby the court has ordered for appointment of local commissioner to determine the portion of the suit land which forms part of khasra number 11713/2468.2. briefly quoted, the plaintiffs filed a suit for permanent injunction restraining the defendants from interfering in their possession and also from alienating the same in any manner, claiming ownership thereof by way of adverse possession.3. the defendants put in appearance and claimed themselves to be the owners of a part of the suit land. admittedly, both the parties led evidence and even the arguments had been concluded on 17-9-1990. it is only on 22-9-1990 that an application under order 18 rule 17-a cpc seeking permission to lead evidence was filed by the defendants which has been decided vide the impugned order4. as has been briefly noticed above, the plaintiffs claims to be the owners of suit land on the ground that they are in possession of the land openly, continuously and without any obstruction from anybody and so have protected their title.5. the defendants, on the other hand, claimed themselves to be the owners of land comprised in khasra no. 1171 j/2468 measuring 1 bigha 10 biswas (pukhta).6 this application was resisted by the plaintiffs on the ground that hearing in the suit had already concluded and in fact the case was posted for orders when this application had been filed by the defendants which otherwise also legally impermissible. in support of his contention, counsel relied upon judicial pronouncement of this court reported as madan mohan aggarwal v. mansa devi, (1985-2) 88 p. l. r. 206. the trial court while agreeing to the observations made by the court with the above cited judgment dismissed the application filed by the defendants for additional evidence but of its own, thought that matter in dispute could not be resolved without ascertaining as to the extent to which khasra no. 11713/2468 has been encroached upon by the plaintiffs. thus, the court thought it desirable that the evidence led by the parties can be properly appraised in the light of report of the local commissioner.7 the sole submission of the learned counsel for the petitioners is that the trial court despite having dismissed the application under order 18 rule 17-a cpc yet granted the respondents the desired relief invoking its suo moto powers ostensibly terming the same to be in the interest of justice.8. counsel for the respondents, on the other hand, in support of the order has urged that on the facts and circumstances of the case, as noticed by the learned sub judge, the impugned order is perfectly just and proper. counsel drew my attention to the observation of the court in mahendranath parida v. purnananda parida, a. i. r. 1988 orissa 248, which are as under.'where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. it will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot.'9. in madan mohan's case (supra), the court on perusal of the relevant material came to the conclusion that the additional evidence ought to have been adduced was in the nature of a roving enquiry as the plaintiff wanted to delve and lead evidence by producing officials from bank, municipal committee, neighbours where the shop was located and ether persons who could support the case of the plaintiff. since these things were very well within the knowledge of the plain tiff, the 'court held that allowing the plaintiff to lead evidence of such a nature would merely be a roving enquiry and so would be beyond the scope of additional evidence as the party has to satisfy that he could n't adduce such evidence despite due diligence.10. in the present case the facts are entirely different. here the application for additional evidence was moved on 22 9-1990 when the arguments were already concluded on 17-9-1990. through the said application, the defendants wanted appointment of revenue official as local commissioner. discretions exercised cannot be termed as illegal. thus, i find no merit in this revision-petition and consequently dismiss the same. .