Baldev Parshad Vs. Kishan Chand 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 appeal was finally dismissed by the district judge on april 12, 1985 and subsequently a regular second appeal filed by the defendants also failed. 96, it was held that the appellate court bad inherent jurisdiction under section 151 of the code of civil procedure to demand security for payment of mesne-profits when the appellant (in that case) had applied for stay of his dispossession in execution of the decree.a.l. bahri, j. 1. the matter in controversy is covered by the decisions of this court.2. baldev parshad filed a civil suit for mandatory injunction directing kishna chand and others to put him in possession of 8 rooms of the house. the suit was decreed on september 19, 1983 by the trial court. kishan chand and others challenged the said decree before the district judge who passed interim order staying operation of the decree subject to furnishing security for mesne profits to the satisfaction of the executing court. in response thereto two securities to the extent of rs. 10,000/- each as asked by the executing court were furnished by kishan chand and others. the appeal was finally dismissed by the district judge on april 12, 1985 and subsequently a regular second appeal filed by the defendants also failed. thereafter possession was delivered to the present petitioner.3. baldev parshad in the executing court applied under section 145 of the code of civil procedure for recovery of mesne-profits as per security furnished. the mease-profits were claimed at the rate of rs. 200/- per month for the period from november 19, 1985 to october 26, 1985. in all a sum of rs. 4,600/- was claimed as mesne profits. the application was contested and the following issues were tried by the executing court :--1. whether the application is not maintainable opr 2. whether the respondents are liable to pay rs. 4,600/-as mesne profits to the applicant under the surety bond dated 1-11-1983?opa 3. relief. 4. issue nos. 1 and 2 were decided together. it was held that the application was not maintainable. it was further held that in the suit itself the plantiff had claimed mesne profits at the rate of rs. 100/-per mesem. the same, however, stood declined. the application was dismissed. baldev parshad has come up in revision petition.5. the decision of the executing court that the application under section 145 of the code of civil procedure was not maintainable cannot be sustained in view of two decisions of this court. in naurant singh v. teja singh and ors., (1976) 78 p. l. r. 96, it was held that the appellate court bad inherent jurisdiction under section 151 of the code of civil procedure to demand security for payment of mesne-profits when the appellant (in that case) had applied for stay of his dispossession in execution of the decree. hence, the stay order demanding security for mesne profits-should be taken and deemed to have been passed under inherent powers. when the said order was passed under the inherent powers and the security bond was executed in. pursuance there, it could be executed summarily in execution proceedings without having recourse to a fresh suit. the said decision was followed in teja singh v. amar singh, (1986-2) 90 p. l. r. 359.6. in naurant singh's case (supra) it was further observed that since security was furnished to the extent of rs. 10,000/- per annum in application under section 145 of the code of civil procedure the said amount could be recovered in execution proceedings itself. in the present case the security was furnished to the tune of rs. 10,000/-. thus to the extent of rs. 10,000/- the petitioner could recover the amount on application under section 145 of the code of civil procedure. however, the petitioner only claim in all a sum of rs. 4,600/- although claiming the same at the rate of rs. 200/- per mensem.7. on the other hand learned counsel for the respondent has referred to there decisions which were relied upon before the trial court i.e.. the central board of industries and commerce, new delhi and anr. v. shri sham lal gupta, 1976 r.c.r. 224, veermachaneni gangadhararao v. kanuri venkateswara rao and ors., a. i. r. 1974 a. p. 289. he has also relied upon decision of this court in kala singh and ors. v. sant lal and anr., (1989-2) 96. p. l. r. 683. it is not necessary to refer to the first two cases, which are otherwise distinguishable, as there are decisions of this court on the subject. in kala singh's case tej ram's case, referred to above was relied upon and approved. it was only clarified that for the claim of mesne profits for the period after decision of the appeal the matter should be decided separately. however the amount of mesne profits during the period the stay order remained in operation, could be recovered on application under section 145 of the code civil procedure filed before the executing court.8. in the present case mesne profits from october 24, 1983 to the date of the decision of the appellate court i.e. april 12, 1985 could legitimately be claimed by the petitioner in the application filed under section 144 of the code of civil procedure. baldev parshad dhw 1 deposed that there were 8 rooms of the house in dispute and he could fetch rs. 400/- per month although be claimed rs. 200/- per month. on the other side kishan chand appeared as jdw 1 deposed that earlier in the suit baldev parshad had claimed mesne profits at the rate of rs. 100/- per mensem but that relief was declined. however, he further stated that the premises could fetch only rs. 40/- or rs 50/- per mensem. the suit was filed in the year 1981 and baldev parshad claimed mesne profits at the rate of rs. 100/- per mensem. in 1983 the amount could not be more than what he claimed in 1981. thus keeping in view the evidence produced in this case, the mesne profits are allowed to the petitioner under issue no. 2 at the rate of rs. 100/-per mensem. the period for which, mense profits are now to be allowed is upto april 1985 i.e. about 18 months and he would, therefore, be entitled to a sum of rs. 1800/- on account of mesne profits for the said period.9. for the reasons recorded above this revision petition is allowed with no order as to costs. the impugned order is set aside and the petitioner is held entitled to a sum of rs. 1800/- (rounded) as mesne profits for the period from november 19, 1981 to april 12, 1985 at the rate of rs. 100/- per month. this amount will be recovered from the security bond furnished in execution.