Shiv Kumar and anr. Vs. Raja Ram - 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. - 4. whether the petitioner is bad for want of particulars ?, opr 5. whether the petition is bad for want of notice ? opr. in nauhar chand's case (supra), the court was examining whether the rent paid in excess by a tenant can be adjusted towards the rent due in respect of the subsequent period and thus the court came to the conclusion that such an amount cannot be said to be irrecoverable in terms of section 6 of the east punjab urban rent restriction act, 1949. it was also held that the excess amount cannot be said to be on account of any fine, premium or any other like sum in addition to the rent.ordern.k. kapoor, j.1. this revision petition is against the order of the appellate authority dated 13.11.1991 affirming the order of the rent controller dated 1.8 1990 whereby the respondent was held to be entitled to recover a sum of rs. 1200/- as house tax and rs. 340/- as interest from the petitioners or to get the same adjusted in the rent payable by him to the landlord.2. briefly put, the petitioners filed a petition for eviction of raja ram tenant from the shop detailed in the beading of the petitions on the ground that he is in arrears of rent since 1.10.1983 and is also liable to pay house tax from 1.10.1982 upto date that he is continuous source of nuisance to the neighbours. the respondent put in appearance and tendered the arrears of rent as assessed and the house tax but reserved his right to recover the house tax since the same was not payable by him.3. on the pleadings of the parties, following issues were1. whether the respondent is liable to be ejected from demised premises on the grounds mentioned in para no. 3 of the petitions opp.2. whether the petition is mala fide opr.3. whether the petitioner has no locus standi opr.4. whether the petitioner is bad for want of particulars ?, opr5. whether the petition is bad for want of notice opr.6. whether the petitioner is estopped from filing the present petition by his act and conduct opr.7. relief.4. in the course of proceedings, one of the petitioners, namely, shiv kumar made a statement to the effect that he did not want to prosecute the petition and so prayed that the same may be dismissed. however, the respondent had reserved his right to recover the amount of house tax, the petition was kept pending and the matter was examined by the rent controller. the rent controller on the basis of evidence led on record came to the conclusion that no written notice under registered cover had been sent by the landlords and in the absence of such demand, the landlords are not entitled to recover the house tax. accordingly, the rent controller held that the respondent-tenant is entitled to recover a sum of rs. 1200/- as house tax and rs. 340/- as interest from the petitioners or get the same adjusted in the rent payable by him.5. feeling dissatisfied with the order of the rent controller, the petitioners filed an appeal which too was dismissed by the appellate authority vide order dated 13.11.1991.6. the petitioners have assailed the correctness of the above impugned orders on the ground that the same were not in conformity with the provisions of the haryana urban (control of rent and eviction) act, 197? (for short 'the act') and thus liable to be reversed. it is admitted case of the parties that no house tax. was leviable by the municipal committee at the inception of the tenancy. it is also admitted case that no such demand was raised by the landlords claiming house tax in addition to the monthly rent by means of any communication through registered cover or otherwise. however, the learned counsel for the petitioners relying upon the judgments of this court in cases reported as nauhar chand v. thakar dass, 1977 cur. l. j. 251 and bhagat panju ram and ors. v. ram lal, (1968) 70 p. l. r. 409, has contended that the amount received by the petitioners on account of house tax and the interest thereupon cannot be termed as irrecoverable amount in terms of sections 6 and 7 of the act and in this way both the authorities have erred in law in holding that this amount can be recovered from the petitioners or the same cm be adjusted in the rent payable by the respondent. according to tie counsel, the amount of the house tax cannot be termed to be irrecoverable amount under the provisions of the act. i find no merit in the contention of the, counsel for the petitioners for the reason that any such amount received in excess than permissible under the provisions of the act can be termed as irrecoverable and the authorities under the act have right to pass an appropriate order in terms of section 7 of the act. in bhagat panju ram's case (supra) the landlord filed an eviction application on the ground of non payment of arrears of rent from 6th of july, 1961 to 10th of january, 1963. the tenant who put in appearance disputed this claim of the land-owner and on the contrary asserted that he had already made payment on 1st of august, 1961 for six months from 5th july, 1961 to 5th of january, 1962, but fearing that he might be ejected, he on the first date of hearing paid the amount as claimed by the land owner. after this payment, the ejectment application was dismissed it is on 21st of march, 1964, that tenant filed a suit for recovery of the amount i.e. a sum of rs. 720- (rs. 660/- on account of rent from 5th of july, 1961 to 5th of january, 1962 which had been recovered twice by the defendant and another sum of rs. 60/- which had been paid by him on account of other expenses.) in the revision petition, the sole point which was agitated was that the dispute was barred by limitation. the precise argument raised was that the suit for recovery of the excess amount is recoverable within six months from the date of such payment in terms of section 8 of the east punjab rent restriction act. since the suit was filed on 21st of march, 1964 i.e. after the expiry of six months period, the same was not within limitation. the court examined this matter in the context of sections 6, 7 and 8 of the act and came to the conclusion that to recover such payment so made the time to recover such amount is one permissible under article 120 of the limitation act, 1908, and so held that the suit filed on march 21, 19 64, was within limitation. in nauhar chand's case (supra), the court was examining whether the rent paid in excess by a tenant can be adjusted towards the rent due in respect of the subsequent period and thus the court came to the conclusion that such an amount cannot be said to be irrecoverable in terms of section 6 of the east punjab urban rent restriction act, 1949. it was also held that the excess amount cannot be said to be on account of any fine, premium or any other like sum in addition to the rent. the ratio of this judgment is not applicable on the facts of this case.7. both the authorities referred to above have no applicability on the facts of the present case. since no notice had been served by the landowner to recover the house tax alleged to have been levied by the municipal committee, such an amount could not be recovered by the landowner in view of section 7 of the act. thus, i find no infirmiiy 'in the orders of the authorities below. the revision petition is without merit and is accordingly dismissed. no costs.

Judgment:
ORDER

N.K. Kapoor, J.

1. This revision petition is against the order of the appellate authority dated 13.11.1991 affirming the order of the Rent Controller dated 1.8 1990 whereby the respondent was held to be entitled to recover a sum of Rs. 1200/- as house tax and Rs. 340/- as interest from the petitioners or to get the same adjusted in the rent payable by him to the landlord.

2. Briefly put, the petitioners filed a petition for eviction of Raja Ram tenant from the shop detailed in the beading of the petitions on the ground that he is in arrears of rent since 1.10.1983 and is also liable to pay house tax from 1.10.1982 upto date that he is continuous source of nuisance to the neighbours. The respondent put in appearance and tendered the arrears of rent as assessed and the house tax but reserved his right to recover the house tax since the same was not payable by him.

3. On the pleadings of the parties, following issues were

1. Whether the respondent is liable to be ejected from demised premises on the grounds mentioned in para No. 3 of the petitions OPP.

2. Whether the petition is mala fide OPR.

3. Whether the petitioner has no locus standi OPR.

4. Whether the petitioner is bad for want of particulars ?, OPR

5. Whether the petition is bad for want of notice OPR.

6. Whether the petitioner is estopped from filing the present petition by his act and conduct OPR.

7. Relief.

4. In the course of proceedings, one of the petitioners, namely, Shiv Kumar made a statement to the effect that he did not want to prosecute the petition and so prayed that the same may be dismissed. However, the respondent had reserved his right to recover the amount of house tax, the petition was kept pending and the matter was examined by the Rent Controller. The Rent Controller on the basis of evidence led on record came to the conclusion that no written notice under registered cover had been sent by the landlords and in the absence of such demand, the landlords are not entitled to recover the house tax. Accordingly, the Rent Controller held that the respondent-tenant is entitled to recover a sum of Rs. 1200/- as house tax and Rs. 340/- as interest from the petitioners or get the same adjusted in the rent payable by him.

5. Feeling dissatisfied with the order of the Rent Controller, the petitioners filed an appeal which too was dismissed by the Appellate Authority vide order dated 13.11.1991.

6. The petitioners have assailed the correctness of the above impugned orders on the ground that the same were not in conformity with the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 197? (for short 'the Act') and thus liable to be reversed. It is admitted case of the parties that no house tax. was leviable by the Municipal Committee at the inception of the tenancy. It is also admitted case that no such demand was raised by the landlords claiming house tax in addition to the monthly rent by means of any communication through registered cover or otherwise. However, the learned counsel for the petitioners relying upon the judgments of this Court in cases reported as Nauhar Chand v. Thakar Dass, 1977 Cur. L. J. 251 and Bhagat Panju Ram and Ors. v. Ram Lal, (1968) 70 P. L. R. 409, has contended that the amount received by the petitioners on account of house tax and the interest thereupon cannot be termed as irrecoverable amount in terms of Sections 6 and 7 of the Act and in this way both the authorities have erred in law in holding that this amount can be recovered from the petitioners or the same cm be adjusted in the rent payable by the respondent. According to tie counsel, the amount of the house tax cannot be termed to be irrecoverable amount under the provisions of the Act. I find no merit in the contention of the, counsel for the petitioners for the reason that any such amount received in excess than permissible under the provisions of the Act can be termed as irrecoverable and the authorities under the Act have right to pass an appropriate order in terms of Section 7 of the Act. In Bhagat Panju Ram's case (supra) the landlord filed an eviction application on the ground of non payment of arrears of rent from 6th of July, 1961 to 10th of January, 1963. The tenant who put in appearance disputed this claim of the land-owner and on the contrary asserted that he had already made payment on 1st of August, 1961 for six months from 5th July, 1961 to 5th of January, 1962, but fearing that he might be ejected, he on the first date of hearing paid the amount as claimed by the land owner. After this payment, the ejectment application was dismissed It is on 21st of March, 1964, that tenant filed a suit for recovery of the amount i.e. a sum of Rs. 720- (Rs. 660/- on account of rent from 5th of July, 1961 to 5th of January, 1962 which had been recovered twice by the defendant and another sum of Rs. 60/- which had been paid by him on account of other expenses.) In the revision petition, the sole point which was agitated was that the dispute was barred by limitation. The precise argument raised was that the suit for recovery of the excess amount is recoverable within six months from the date of such payment in terms of Section 8 of the East Punjab Rent Restriction Act. Since the suit was filed on 21st of March, 1964 i.e. after the expiry of six months period, the same was not within limitation. The Court examined this matter in the context of Sections 6, 7 and 8 of the Act and came to the conclusion that to recover such payment so made the time to recover such amount is one permissible under Article 120 of the Limitation Act, 1908, and so held that the suit filed on March 21, 19 64, was within limitation. In Nauhar Chand's case (supra), the Court was examining whether the rent paid in excess by a tenant can be adjusted towards the rent due in respect of the subsequent period and thus the Court came to the conclusion that such an amount cannot be said to be irrecoverable in terms of Section 6 of the East Punjab Urban Rent Restriction Act, 1949. It was also held that the excess amount cannot be said to be on account of any fine, premium or any other like sum in addition to the rent. The ratio of this judgment is not applicable on the facts of this case.

7. Both the authorities referred to above have no applicability on the facts of the present case. Since no notice had been served by the landowner to recover the house tax alleged to have been levied by the Municipal Committee, such an amount could not be recovered by the landowner in view of Section 7 of the Act. Thus, I find no infirmiiy 'in the orders of the authorities below. The revision petition is without merit and is accordingly dismissed. No costs.