Babu Ram Gupta Vs. Ram Pal Singh and anr. - 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 power exists, untrammelled by the amendment in section 115 of the cpc, and is available to be exercised subject to rules of self discipline and practice which are well settled.a.n. jindal, j.1. this is a petition under article 227 of the constitution of india for quashing the orders dated 16.7.2007 (annexure p/4) and 26.2.2009 (annexure p/5) passed by the civil judge (sr. division), kurukshetra.2. the petitioner has challenged the order dated 16.7.2007 on the ground that since the evidence of the plaintiff has been closed, therefore, the court could not entertain the application for appointment of local commissioner moved by the plaintiff-respondent (herein referred as 'the respondent') and vide second order dated 26.2.2009 the application for appointment of local commissioner was allowed.3. while confronting with the question, whether the order is reyisable, then learned counsel while referring to the judgment rendered in case surya dev rai v. ram chander rai and ors. : a.i.r. 2003 supreme court 3044 (1) has contended that this court is vested with the full powers under article 227 of the constitution of india to supervise any interim orders passed by the courts below. he has also referred to the judgment delivered in case jagdev singh and ors. v. darshan singh and ors. (2007) 146 p.l.r. 315, wherein it was observed as under:4. in view of the above, the reference to db that was made by the learned single judge vide order dated 16.11.1999 no longer survives. in any case, as held in salem advocate bar association's case : a.i.r. 2005 s.c. 3353 (supra), a revision against an order passed by an inferior court can always be entertained in exercise of the powers of this court under article 227 of the constitution of india. the present petition though has been filed under section 115, c.p.c., however, the nomenclature under which the same is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which it otherwise possesses unless there is a special procedure prescribed which procedure is mandatory. in a case where the court finds that the petitioner could not invoke the jurisdiction of this court under section 115 of the c.p.c., the court can certainly treat the petition to be one under article 227 of the constitution of india. in fact this court in ajit cotton ginning pressing daal and steel rolling mills and ors. v. steel authority of india c.r. no. 582 of 2004 decided on 28.2.2005 vide a detailed order has held that a petition filed under section 115, c.p.c. can be treated to be one under article 227 of the constitution of india. the following observations are apposite:by virtue of amendment in code of civil procedure 1908, w.e.t. 1.7.2002, the revisional jurisdiction of the high court under section 115 of the code has been curtailed but, such amendment cannot and does not affect in any manner the jurisdiction of the high court under articles 226 and 227 of the constitution. the interlocutory orders passed by the courts subordinate to the high court against which remedy of revision has been excluded by virtue of code of civil procedure amendment act no. 46 of 1999, are nevertheless open to challenge and continue to be subject to certiorari and supervisory jurisdiction of the high court. the curtailment of revisional jurisdiction of the high court does not take away - and could not have taken away - the constitutional jurisdiction of the high court to issue a writ of certiorari to the civil court nor the power of superintendence conferred on the high court under article 227 of the constitution is taken away or whittled down. reference may be made to judgment of the supreme court reported as surya dev rai v. rai chander rai and ors. : a.i.r. 2003 s.c. 3044, wherein it was held to the following effect:we are of the opinion that the curtailment of revisional jurisdiction of the high court does not take away - and could not have taken away - the constitutional jurisdiction of the high court to issue a writ of certiorari to the civil court nor the power of superintendence conferred on the high court under article 227 of tne constitution is taken away or whittled down. the power exists, untrammelled by the amendment in section 115 of the cpc, and is available to be exercised subject to rules of self discipline and practice which are well settled.4. having examined the aforesaid judgment, there is no dispute with the aforesaid proposition that the interim order which determine the right of the parties, effect or cause prejudice to them, could be examined by this court while exercising powers under article 227 of the constitution of india, and it is not each and every interim order, which relates to the procedure and does not cause any prejudice or effect their rights can be put to revision. the apex court in case rajinder & co. v. union of india and ors. 2003(1) r.c.r. (civil) 755 observed that appointment and declining the application for appointment of the commission does not in any way effect the rights of the parties. the question whether the commissioner's report is finally acceptable or not would be decided by the court de hors the order passed by the authorities concerned. the high court cannot interfere with such order of the trial court appointing the commission for inspecting the site and to file report.5. in any case, if the court has exercised the powers while appointing local commissioner for satisfying himself as to about the actual position at the spot, then the parties should not feel apprehended by these reports. as such, the revision against this order is discouraged. it has been observed in case mytheen kunju ahammed kunju v. p.a. azeez kunju a.i.r. 1994 (ker) 287 wherein it was observed that the order appointing the commission or refusing to appoint the commission is not revisable. it was also observed by this court in case smt. harvinder kaur and anr. v. godha ram and anr. 1979 p.l.j. 562 that revision against the order refusing or appointing the local commissioner is not maintainable.6. as such, the provisions of article 227 of the constitution of india cannot be used as a device to invoke extraordinary supervisory jurisdiction of this court.resultantly, finding no merit in the petition, the same is dismissed.