Mander Singh and ors. Vs. Ladi - 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. - further basis for filing the complaint was that the petitioners had filed a complaint against the respondent before senior superintendent of police, bathinda on february 6, 1999 stating that the respondent is a lady of bad character. the false allegations levelled by the petitioners had made the life of the respondent miserable as it had become difficult for her to live in the village and get married. the dignity, reputation and character of the respondent were badly damaged. on a consideration of the application/complaint made by the petitioners before the police which was the sole basis for filing of the complaint by the respondent against the petitioners, the learned magistrate found that the same does not contain any defamatory words against the respondent- complainant that she was running a prostitution business in the village or that she is a lady of bad character. the second part of the contention, however, does not commend itself to us as it is well recognized that an order of 'discharge' passed in such circumstances would amount to one of acquittal and may be treated as such.rajesh bindal, j.1. the challenge in the present petition is to the order passed by the learned additional sessions judge, bathinda in revision filed by the respondent against the order passed by learned judicial magistrate, 1st class, bathinda, in criminal complaint no. 16 of 1999, r.t. no. 131 of 31.5.2000, whereby the petitioners were discharged as no prima facie case was made out against them for summoning to stand trial under section 500 ipc.2. briefly, the facts are that the respondent filed a complaint against the petitioners under sections 500/120b/148/149/506 ipc. the dispute as is stated in the complaint is on account of certain party faction in the panchayat elections. further basis for filing the complaint was that the petitioners had filed a complaint against the respondent before senior superintendent of police, bathinda on february 6, 1999 stating that the respondent is a lady of bad character. she was unmarried at the age of 40 years and was running prostitution business in the village. the complaint was enquired into by the s.s.p., bathinda and the allegations contained therein were found to be false. the false allegations levelled by the petitioners had made the life of the respondent miserable as it had become difficult for her to live in the village and get married. the dignity, reputation and character of the respondent were badly damaged. after recording preliminary evidence, the learned magistrate directed the summoning of the petitioners vide order dated november 2, 1999. after summoning of the petitioners, the trial court proceeded with recording of evidence of the complainant. on a consideration of the application/complaint made by the petitioners before the police which was the sole basis for filing of the complaint by the respondent against the petitioners, the learned magistrate found that the same does not contain any defamatory words against the respondent- complainant that she was running a prostitution business in the village or that she is a lady of bad character. the only allegation in the complaint was that the respondent, arjan singh and kala singh, are trouble makers who often levelled false allegations against the villagers. there is threat of breach of peace from these persons who always remain ready to enter into fight with co-villagers. prayer was made for taking action against them. keeping these facts in view, the learned magistrate, vide order dated march 12, 2003, did not find sufficient material to frame charge against the petitioners and accordingly discharged them.3. aggrieved against the order of discharge, the respondent filed revision petition before the learned additional sessions judge, bathinda who, vide order dated september 23, 2003, accepted the revision and while setting aside the order passed by the magistrate, directed for framing of charge against all the accused and to proceed further in accordance with law.4. the only legal issue raised by learned counsel for the petitioners is that the discharge of the petitioners by the learned magistrate amounted to acquittal and against an order of acquittal, no revision was maintainable as the only remedy available to the respondent was by way of filing leave to appeal before this court under section 378 cr.p.c. he has relied upon a judgment of hon'ble the supreme court in the case of major general, a.s. gauraya and anr. v. s.n. thakur and anr. 1986 criminal law journal 1074 and judgments of this court in municipal committee v. shri labhu ram and ors. 1969 current law journal 619; arjan dass v. market committee, hissar (1980)82 p.l.r. 469; bal ram suraj v. dev raj dhiman 1987(1) recent criminal reports 616; ashok kumar v. state of haryana and anr. 1987(2) recent criminal reports 317; state of haryana v. ram singh 1996(3) recent criminal reports 134.5. while considering the identical issue, a division bench of this court in municipal committee v. shri labhu ram's case (supra) opined as under:the first point raised by learned counsel for the committee was that all the 14 cases fell within the category of summons cases in relation to which the code of criminal procedure does not envisage an order of discharge in any event and that the impugned orders were liable to be set aside on that account alone. to the first part of this contention no exception can be taken as chapter xx of the code, which deals with the trial of summons-cases, does not talk of an order of discharge at all. on the other hand, it is clear from the provisions thereof that the proceedings against an accused person in a summons-case can end only two ways, i.e., either in his conviction or his acquittal. the second part of the contention, however, does not commend itself to us as it is well recognized that an order of 'discharge' passed in such circumstances would amount to one of acquittal and may be treated as such. the contention, therefore, does not help the committee in any way.(emphasis supplied)6. in arjan dass's case (supra), a single bench of this court considering a similar proposition and relying upon a judgment of madras high court in palchmi v. paramasiva gounder : air1958 mad197 , observed as under:5. the main ground urged by the learned counsel for the petitioner is that the orders passed by the learned chief judicial magistrate, which were wrongly recorded as discharge, was as a matter of fact orders of acquittal.the second argument is that no revision was competent against that order before the learned sessions judge and that the learned sessions judge was not competent to convert the revisions into appeals.xx xx xx7. chapter xx which provides for the procedure for trial of summons cases, contains sections 251 to 259. section 251 provides that when an accused is brought before the magistrate, the particulars of the offence of which he is accused of, shall be stated to him. after that, his plea of guilt has to be recorded and in case of examination of evidence under section 255 of the code, contained in this chapter, shall acquit him if in his opinion the accused is not guilty of the offence. when a comparative study of chapters xix and xx is made, it makes it clear that charge has to be framed only in a warrant case and when the charge is not framed, the accused has necessarily to be discharged. this shows that the words 'charge' and 'discharged', are inter-linked and inter dependent and have been used only in that procedure where the charge has to be framed that is in warrant cases. where the law does not provide for the framing of the charge there can be no question of discharge. in summons cases, there cannot be a question of discharge as the provisions do not contain such a word. the stage of acquittal comes after the framing of the charge. under section 251 of the code only substance of accusation has to be stated. technically, it might be taken akin to the framing of the charge, but when the question of discharge is to be considered relatively with this provision, it cannot be equated with the framing of the charge. i draw support from palchmi v. paramasiva gounder in which it was held as under:.in a summons case there is no question of discharge. it is either acquittal or dismissal under section 203 criminal procedure code. the trial court therefore could have only either passed an order of dismissal under section 203 or an acquittal under section 245 in a summons case. it cannot pass an order of discharge in a summons case. if it says that it discharges the accused in law it means acquittal.the word 'discharge' has been improperly used by the learned chief judicial magistrate. in reality, the effect of this discharge in such cases is that of acquittal.8. the next question which has been mooted between the parties is as to whether a revision was competent against an order of acquittal. section 378(4) of the code prohibits the filing of a revision where a right of appeal accrues to a party. the revisions therefore could not be filed by party which had a right of appeal.7. in bal ram suraj's case (supra), this court relying upon earlier judgment of this court in raja ram trehan v. principal, sudarshan singh malva khalsa higher secondary school, ferozepur city 1981 criminal law journal 1469, opined that the order of discharge has to be read as an order of acquittal deemingly to have been passed under section 255 of the code and on that finding no revision was competent before the additional sessions judge and thus the order was declared to be illegal.8. keeping in view the above consistent view of this court and applying the same in the facts and circumstances of the present case where in a summons case, the petitioners were discharged by the learned magistrate vide order dated 12.3.2003, in legal term, it amounted to acquittal of the petitioners. against the order of acquittal, revision was not competent before the learned additional sessions judge as the order could only be challenged before this court by filing special leave to appeal under section 378 cr.p.c. the impugned order dated 23.9.2003 passed by the learned additional sessions judge is, thus, declared illegal and set aside.the petition is disposed of accordingly.