Sant Kaur Vs. Khazan Singh and ors. - 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. - sant kaur failed to appear before the frial court despite service having been affected on her by substituted service by publication of notice in the haryana sandesh. khazan singh plaintiff-respondent resisted this application contending that the defendant petitioner had failed to attend the court despite due service by publication of notice in the news paper. 2. 4. the trial court dismissed the application of the defendant- petitioner vide its order dated 9th march, 1981 by holding that the defendant petitioner was duly served through publication of notice in the news-paper and thus on her failure to appear on 15th november, 1956, she was rightly proceeded against ex parte the application was held palpably barred by time. as the witnesses of the plaintiffs failed to reveal the age of the defendant, the trial court felt that further attempt be made for the service of the defendant. ultimately her service was affected through publication of notice in haryana sandesh, hissar and on her failure to appear before the trial court on 15th november, 1956 she was proceeded against ex- parte. 442.,bad held that for substituted service under order 5, rule 20 of the code of civil procedure of the defendant through publication of notice in the newspaper, the sending of the copy of the newspaper under postal cover is a must. 8. for the foregoing reasons, the impugned orders of the trial court as well as that of the 1st appellate court being palpably wrong, are not sustainable having resulted in mis-carriage of justice, the same are, therefore, set aside by accepting this revision petition with costs throughout and ordering the restoration of the parent suit against its original number.jai singh sekhon, j.1. mst. sant kaur alias basant kaur, defendent-petitioner has filed this revision petition against the order of the trial court dated 9th march, 1981, dismissing her application under order 9, rule 23 read with section 151, code of civil procedure for setting aside the ex-parte decree dated 15th november, 1956. she has also assailed the order of the learned district judge, hissar, dated 29th january, 1982 dismissing her appeal against the above referred order of the trial court.2. in brief, the facts relevant for the disposal of this revision petition are that on 28th november,1955, khazan singh and budth singh plaintiff-respondents filed a suit for possession of the land in disputed located in the revenue estate of mohammedpur rohi, tehsil fatehabad. district hissar against mst. sant kaur deferidant-petitioner. mst. sant kaur failed to appear before the frial court despite service having been affected on her by substituted service by publication of notice in the haryana sandesh. accordingly, on 15th november, 1956 she was ordered to be proceeded against ex-parte. the ex-parte decree was passed against her on that very day i.e. 15th november, 1956. thereafter, on 26th august. 1975, she filed an application under order 9 rule 13 of the code of civil procedure for setting aside the ex-parte decree contending that she was not at all served in the parent suit and that the ex-parte decree was obtained at her back by the plaintiff-respondents she further maintained having never contracted karewa marriage with kartar singh of village dandrala kharora, tehsil nabha. it was further averred that for the first time she learnt about the ex-parte decree on 13th august, 1975 when she contacted khazan singh plaintiff respondent in village mohammedpur rohi for realisiog the batai and that on his refusal to pay the batai, she engaged a lawyer who examined the file on 4th august, 1975 and came to know of the ex parte decree. khazan singh plaintiff-respondent resisted this application contending that the defendant petitioner had failed to attend the court despite due service by publication of notice in the news paper. he further maintained that the defendant petitioner had affected karewa marriage with aforesaid kartar singh and the remaining allegations of the defendant-petitioners were also controverted. in the alternative it was maintained that even if mst sant kaur defendant-petit'oner had not contracted karewa marriage with aforesaid kartar singh, he had become owner of the land in dispute by way of adverse possession.3. in support of her case before the trial court, the defendant petitioner examined herself as a.w 4, besides examining aforesaid kartar singh as a.w.i. bachan singh a.w. 2 of village dandrala kharore and bant singh as aw 3 of village datewal. khazan singh plaintiff respondent appeared as r.w. 1 besides examining amar singh as r.w. 2.4. the trial court dismissed the application of the defendant- petitioner vide its order dated 9th march, 1981 by holding that the defendant petitioner was duly served through publication of notice in the news-paper and thus on her failure to appear on 15th november, 1956, she was rightly proceeded against ex parte the application was held palpably barred by time. the learned district judge, hissar vide his judgment dated 29th january, 1982 also dismissed the appeal of the defendant-petitioner by upholding the findings of the trial court.5. i have heard the learned counsel for the parties besides perusing the record.6. admittedly, mst. sant kaur petitioner used to reside at village detwal in district ludhiana while the land in dispute is located in village mobammedpur rohi, tehsil fatehabad, district hissar. the defendant-petitioner was proceeded against ex parte on 17th april, 1956 by the trial court and thereafter some evidence of the respondents was recorded ex parte: as the witnesses of the plaintiffs failed to reveal the age of the defendant, the trial court felt that further attempt be made for the service of the defendant. summons were sent to the defendant on several occasions, but the same were refused as per interim order dated 31st august, 1956 of the trial court. ultimately her service was affected through publication of notice in haryana sandesh, hissar and on her failure to appear before the trial court on 15th november, 1956 she was proceeded against ex- parte. there is no evidence on the file to show that this news-paper had circulation in punjab also. the very name of the news-paper being haryana sandesh implies that it being a local news-paper, had circulation in hissar district only. according to the provisions of sub-rule (1-a) of pule 20 of order 5 of the code of civil procedure if the court opts to effect service on the defendant by an advertisement in a news paper, the news-paper shall be daily news paper circulating in, the locality in which the defendant is last known to have actually resided. strange enough, the trial court had not applied its mind while ordering that the defendant be got served by publication of notice in a local news-paper haryana sandesh without ascertaining whether it has circulation in ludhiana district in punjab also. it is not the case of khazan singh plaintiff that a copy of this newspaper was sent to mst. sant kaur through post under these circumstances it cannot be said that mst sant kaur petitioner was duly served. the findings of a single bench of this court in baljit singh bhatia v. kulwant singh and ors.., 1978 p. l. j. 287, can be safely referred to in this regard. again, this court in m/s radha balabh and sons v. ganga din har parshad, (1978) 80 p. l. r. 442., bad held that for substituted service under order 5, rule 20 of the code of civil procedure of the defendant through publication of notice in the newspaper, the sending of the copy of the newspaper under postal cover is a must. thus the finding of both the courts below in this regard being erroneous are hereby set aside.7. on the point of limitation, there is no dispute between the parties that the same will start running from the date of the ex-parte order or decree or when the applicant had knowledge of the decree. mst. sant kaur had specifically stated in her application for setting aside the ex parts decree that she had learnt about the same on 13th august, 1975 for the first time when khazan singh plaintiff refused to give her batai of the land in dispute. admittedly, this land was being cultivated by khazan singh as tenant thereafter she engaged a lawyer and got inspected the file from the record room on 14th august, 1975 and learnt about the details of the ex -parte decree. strange enough in his reply khazan singh plaintiff had simply denied the above referred allegations of mst. sant kaur but had not specifically contended that she never contacted him on 13th august, 1975 or that earlier she was informed of the ex-parte decree under these circumstances, the delayed assertion of khazan singh r.w. 1 that mst. sant kaur used to visit the village off and on to see her neice is of no consequence, especially when during cross-examination he had admitted that after the year 1952, mst. sant kaur had left village mohammedpur rohi. the learned district judge had given great importance to the fact that mst. sant kaur would not sit silent for 19 years or that she would not approach khazan singh plaintiff for paying the batai for this long period. it appears that the learned district judge has not considered the other aspect of the case that khazan singh is the first cousin of the late husband of mst. sant kaur and according to her used to give her batai at village datewal in ludhiana district. in such cases where the relations of the late husband of a woman want to grab her land, there is nothing improbable in the conduct of the plaintiff for continuing giving her batai even after the passing of the ex-parte order. it is the specific case of mst. sant kaur that the plaintiff refused to pay her batai for one year only on 13th august, 1975. if that is so, then there is no option but to hold that this rustic poor lady learnt about the passing of the ex -parte decree on 13th august, 1975. this application having been filed on 26th august, 1975, is thus well within the limitation of 30 days under article 123 of the limitation act, as the limitation will start running from the date of her knowledge.8. for the foregoing reasons, the impugned orders of the trial court as well as that of the 1st appellate court being palpably wrong, are not sustainable having resulted in mis-carriage of justice, the same are, therefore, set aside by accepting this revision petition with costs throughout and ordering the restoration of the parent suit against its original number. the parties through their learned counsel are directed to appear before the trial court on 25th may, 1989. the trial court is directed to dispose of the suit expeditiously.