Des Raj Sharma Vs. B.M. Mittal, Accountant Punjab National Bank 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. - 5. the first submission of the learned counsel for the petitioner is that the rent controller has erred in law in over-looking the mandatory provision of section 18-a of the act which has consequently resulted in failure of justice.n.k. kapoor, j.1. the petitioner has challenged order of rent controller, chandigarh, dated 7th may, 1992 whereby respondent has been granted permission to contest the application filed by the petitioner under section 13-a of the east punjab urban rent .restriction act, 1949.2. briefly the fact of the case are that the petitioner filed an application under section 13-a of the bast punjab urban rent restriction act, 1949, for ejectment of the respondent from the premises in dispute on the ground that he was retiring on 31st march, 1992 and so required this accommodation for himself and his family members. the petitioner further averred that his two sons are married whereas one son and a daughter are unmarried. it was further averred that the wife of petitioner is suffering from bronchial asthma with hypertension and diabities mellitius.3. the rent controller on receipt of application under section 13-a of the act issued notice for service of the respondent, who was served by means of substituted service on 12th april, 1991. however, the respondent did not seek leave of the court to contest this application within the stipulated period, but came present in the court on 14.5.1991 as per affidavit filed by the respondent. he averred that he learnt about affixation of notice on 7th may, 1991. even till then no application was filed by the respondent seeking permission to contest the eviction application, which was filed on 6th june, 1991. this application was contested by the petitioner on the ground that since permission was not sought within 15 days time, as per section 18-a of the act, respondent is not entitled for the relief now sought in the present application.4. the rent controller, however, came to the conclusion that since the petitioner is already residing on the first floor of the premises in dispute, and the remaining part of. the building is with the other tenants, which fact though denied by the petitioner, can be appropriately decided by affording an opportunity to the respondent to lead the evidence, granted the permission so sought.5. the first submission of the learned counsel for the petitioner is that the rent controller has erred in law in over-looking the mandatory provision of section 18-a of the act which has consequently resulted in failure of justice. in the instant case, the rent controller after receipt of application under section 13-a of the act ordered to issue summons for service on the tenant in the forms prescribed in schedule ii. in addition to this, summons were also sent simultaneously by registered acknowledgment due post addressed to the tenant. since he did not come present, service was effected by affixation also. this later fact is admitted by the respondent. thus despite service by affixation on 12th april, 1991, the respondent did not seek the leave of the court to defend the petition till 6th june, 1991 in this way, in fact, the respondent had forfeited his right to contest and the order allowing the respondent leave to contest is legally unsustainable.6. the next submission of the learned counsel is that the rent controller erred in law in going into the fact of insufficiency or sufficiency of the accommodation while deciding the application for leave to defend. according to the counsel, such a plea is not permissible under section 13-a of the act. in this way too, the order is unsustainable.7. learned counsel for the respondent, however, contends that once leave has been granted by the rent controller, on the basis of relevant material placed before him, such an order does not suffer from any legal infirmity and so is not amenable to the revisional jurisdiction of this court.8. after bearing the learned counsel for the parties, i am of the view that this petition merits acceptance. admittedly, respondent was served by process of fixation on 12th april, 1991, who however, did not seek leave of the court to defend this petition under section 13-a of the act within the stipulated period of 15 days. no plausible explanation has been given by the respondent for not seeking the permission within the stipulated period. even the application filed on 6th june, 1991 does not give any reason for delay in seeking the permission to defend the eviction application. significantly, the rent controller has not examined the fact of seeking the permission as per section 18-a of the act. on this account alone, the order of the rent controller is indeed unsustainable. the rent controller has ignored the positive assertion of the petitioner to the effect that on account of his retirement from service, the allotment of the government house has also been cancelled. not only this, a notice under section 4 of the public premises act, 1971, has already been served upon the petitioner on 22nd october, 1991. since the petitioner is in occupation of the government accommodation, he is already paying penal rate of rent to the chandigarh administration. this fact itself belies the stand of the respondent that the petitioner is residing on the first floor of the demised premises in fact, the affidavit filed by the respondent appears to be false and has been filed solely to get an opportunity to delay the adjudication of the petition under section 13-a of the act. the petitioner is a 'specified landlord' which is also the finding of the rent controller, permission granted in violation of section 18-a of the act is per se illegal even perusal of the application filed by the respondent does not disclose any triable issue. the petitioner's application under section 13-a of the act is supported by an affidavit and such a petition is intended to be disposed of in a summary manner.9. for the aforesaid reasons i set aside the order of the rent controller whereby permission was granted to the respondent to contest the application under section 13-a of the act, since the petitioner has been held to be a 'specified landlord', i pass an order of eviction against the respondent. the respondent is, however, granted three months time to deliver back the possession of the premises in dispute to the petitioner subject to his paying all the arrears of rent including the rent for three months, which amount shall be deposited within a month from today. no costs.