Sampuran Singh and ors. Vs. Committee of Management of Gurdwara Haji Rattan - Court Judgment

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- 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. - 10. the submission of the learned counsel for the appellants is that the tribunal has failed to frame an important issue which goes to the root of the case regarding non-maintainability of the suit on account of shiromani gurdwara prabandhak committee, amritsar, having earlier filed a suit qua the same subject matter before the tribunal which was dismissed as withdrawn;iqbal singh, j.1. this appeal has been directed against the order dated 14.6.1974 passed by the sikh gurdwaras tribunal, punjab, chandigarh (hereinafter referred to as 'the tribunal') whereby it decreed the claim of the plaintiff with costs and passed a decree for possession of the suit property.2. the facts of the case are as under :-a suit was filed by committee of management of gurdwara haji ratta, bathinda, as committee of management for gurdwara sahib patshahi daswin qila mubarak, bathinda, through its president s. bhag singh zaid (hereinafter referred to as plaintiff-committee) against sampuran singh and others under section 25a of the sikh gurdwaras act (hereinafter referred to as 'the act') for possession of the property detailed in the plaint. it was stated in the plaint that gurdwara sahib, patshahi dasmi qila mubarik, bathinda, was declared a sikh gurdwara vide notification no. 1181 dated 10.7.1959 and was also entered at serial no. 348 of schedule i attached to the act. in response to the above notification, the defendants filed a petition under section 5 of the act with the home secretary which was forwarded to the tribunal for final disposal under section 14 of the act. this petition was disposed of by the tribunal on 27.3.1973 by means of which not only the defendants' petition was dismissed but the tribunal granted a declaration that the above mentioned notified sikh gurdwara was the owner of the property described in the heading of the plaint. the plaintiff-institution asked the defendants to hand over possession of the gurdwara and the property to it but they refused to do so; hence the plaintiff-committee filed the present suit for possession.3. the suit was resisted by the defendants. in the written statement filed by gurdial singh-defendant preliminary objections were taken which are as under :-(i) that the plaintiff committee is not the committee of management of the institution in question and, therefore, it has no locus standi to file the present suit;(ii) that the plaintiff committee is not legally constituted committee in accordance with the provisions contained in part iii of the act;(iii) that the shiromani gurdwara prabandhak committee, amritsar, had also filed a suit no. 5 qua the same subject-matter before the tribunal claiming to be the committee of management of the institution in question. therefore, the present suit is not maintainable. further, that according to the earlier suit filed by the sikh gurdwara prabandhak committee, it is clear that shiromani gurdwara prabandhak committee was a committee of management of the institution in question;(iv) that the khasra numbers given in the heading of the plaint do not exist now on account of consolidation having taken place in the village; therefore, the present suit is not in accordance with order 7 rule 3, civil procedure code;(v) that no claim in respect of the building of the institution in question was ever filed by the defendants in their claim under section 5(1) of the act, therefore, the tribunal has no jurisdiction to pass any decree on the basis of order which is nullity in law; and(vi) that no proper application was ever made with the plaint for the appointment of a guardian of the minor defendants nos.7 to 9 and, therefore, these minors being a necessary party are not represented by a proper guardian.4. on merits, it was admitted that the plaintiff-committee was declared a sikh gurdwara and entered at serial no. 348 of schedule i attached to the act. it was also admitted that notification under section 3(2) of the act was published. however, it was stated that no appropriate secretary was ever appointed by the state government to receive applications under section 3(1) of the act and that the home secretary, who received the applications, was not competent to receive the same. it was also stated that the publication of the notification under section 3(2) of the act was without jurisdiction. it is admitted that the petition filed by the defendants under section 5 of the act in response to the above notification was disposed of on 27.3.1973, but it is stated that appeal (f.a.o. no. 73 of 1973) against the same is pending in this court. it was further stated that the plaintiff-committee is not a legally constituted one and is not a committee of management of the institution in question. further, that on account of consolidation having taken place in the village, it is difficult to ascertain even for the defendants what property is in their possession at present. it is further stated that the defendants are holding the property as owners and, therefore, no question of asking to deliver the possession of any property to the defendants arises; and that no cause of action has arisen to the plaintiff-committee to file the present suit and the same be dismissed.5. similar written statement was filed on behalf of defendants nos. 1 to 3 and 5 to 9.6. a replication was filed on behalf of the plaintiff-institution in which the allegations made in the written statement were denied and the stand taken in the plaint was reiterated.7. from these pleadings of the parties the learned tribunal framed the following issues that to relief :-'1. whether the plaintiffs of management is validly constituted and has locus standi to sue o.p.p.2. whether bhag singh had the authority to institute this suit o.p.p.3. whether the defendants are in possession of the suit property or any part thereof' o.p.d.4. whether the plaintiffs claim relates to right title or interest in the immovable property which has been held to belong to the notified gurdwara sahib patshahi daswin qila mubarak, bathinda, entered at serial no. 348 of schedule i attached to the sikh gurdwaras act, 1925 ?.'8. after recording evidence, the tribunal decided issues nos. 1 and 2 in favour of the plaintiff-committee. issue no. 3 was decided against the defendants. issue no. 4 was decided in favour of the plaintiff-committee and the suit was decreed with costs.9. we have heard mr. h.s. kathuria, advocate, the learned counsel for the appellants and mr. b.s. guliani, advocate, the learned counsel for the respondent at great length and have gone through the documents on record.10. the submission of the learned counsel for the appellants is that the tribunal has failed to frame an important issue which goes to the root of the case regarding non-maintainability of the suit on account of shiromani gurdwara prabandhak committee, amritsar, having earlier filed a suit qua the same subject matter before the tribunal which was dismissed as withdrawn; therefore the present suit is barred under order 23 rule 1(3) of the code of civil procedure. the contention of the learned counsel for the respondent is that no documentary evidence had been produced on the record to show that earlier a suit was filed regarding the same subject-matter and was dismissed as withdrawn. neither copy of the earlier suit nor any order passed therein has been placed on the record to show that the earlier suit was filed qua the same subject-matter; that the same was dismissed as withdrawn; that the said suit was between the same parties; and that the matter was substantially and materially the same.11. admittedly, it is a case where a specific plea in the written statement has been taken regarding the filing of the earlier suit, but no issue in this regard was framed. it was the duty of the tribunal to frame issues in accordance with law, which arise out of the pleadings of the parties. the argument of the learned counsel for the respondent regarding no evidence having been led to show the filing of the earlier suit, has not any force and is rejected out rightly. no evidence could be allowed to be led there being no issue to this effect. we have gone through the order framing the issues and find that it is nowhere mentioned therein that no other issue was claimed or pressed. therefore, we find that an important issue arise in this case which is necessary to be framed for the just decision of the case. the additional issue is framed as under :-issue no. 4-a.whether the present suit is not maintainable in view of the shiromani gurdwara prabandhak committee having filed an earlier suit qua the same subject-matter. if so, to what effect o.p.d.12. consequently, we remand the case to the tribunal with the direction that the tribunal shall record evidence on this issue and give its findings within six months.the appeal shall remain pending in the court.