Gurdip Kaur Vs. Satpal Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/628566
SubjectCriminal
CourtPunjab and Haryana High Court
Decided OnMay-14-2009
Judge Sham Sunder, J.
Reported in(2009)155PLR668
AppellantGurdip Kaur
RespondentSatpal Singh and ors.
DispositionAppeal dismissed
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. - they were not satisfied with the dowry articles, and their demands increased day by day. it was further stated that thereafter, her brother came at her in-laws house, to take her along, but when she was about to depart, harbans kaur, accused, told that there was unhealthy atmosphere, in the state and the locality and it was not safe and advisable for a new bridge, to wear gold ornaments, during journey, whereupon the complainant entrusted all her gold ornaments to her (harbans kaur). it was further stated that on 13.01.87, she demanded the set of gold ornaments from harbans kaur, accused, but she refused.sham sunder, j.1. this appeal is directed against the judgment of acquittal dated 27.07.94, rendered by the court of the judicial magistrate, 1st class, dasuya, vide which, it acquitted the accused, for the offence punishable under section 406 of the indian penal code.2. in nutshell, gurdip kaur, complainant, filed a complaint, allegeding therein, that she was married to satpal singh, accused, on 4.3.84, at village munak kalan, tehsil dasuya. a week before the marriage, shagun ceremony took place, at the house of the accused, where her father, brothers and maternal uncle gave rs. 151/-, to him (satpal singh) and rs. 51/- each to harbans kaur, davinder singh, and ajit singh, accused. valuable clothes worth rs. 2,000/-, fruits and sweets worth rs. 1,500/-, were also given to the accused. a week after the shagun ceremony, when the accused namely davinder singh, and ajit singh alongwith other persons, came for performing the marriage of satpal singh, accused, they raised a demand of cooler, sofa set, and sewing machine. it was further alleged by the complainant, in her complaint, that on 4.3.84, at the time of her marriage, various gifts, were given to her, as istri dhan. it was further stated that at the relevant time, after preparing a list of all the aforesaid dowry articles, in duplicate, the brother of the complainant entrusted the same (dowry articles) to the accused. thereafter the complainant settled in her in-laws house. it was further stated that the accused were greedy persons. they were not satisfied with the dowry articles, and their demands increased day by day. they also started maltreating her, both physically and mentally for fulfilling their demands. it was further stated that she was also compelled by satpal singh, harbans kaur, and davinder singh, accused, to prevail upon her father to arrange the aforesaid dowry articles, and on her refusal she was beaten mercilessly. it was further stated that thereafter, her brother came at her in-laws house, to take her along, but when she was about to depart, harbans kaur, accused, told that there was unhealthy atmosphere, in the state and the locality and it was not safe and advisable for a new bridge, to wear gold ornaments, during journey, whereupon the complainant entrusted all her gold ornaments to her (harbans kaur). it was further stated that on 13.01.87, she demanded the set of gold ornaments from harbans kaur, accused, but she refused. it was further stated that harbans kaur, accused, tried to administer her poison in milk. on another occasion, all the aforesaid accused, tried to burn her alive, by sprinkling kerosene oil, but could not succeed. she further stated that the aforesaid circumstances, compelled her to leave the matrimonial home, in three wearing clothes alongwith her infant child on 31.01.87. thereafter, on the same day, she reported the matter to her parents and police. the police, did not take any action, against the accused. it was further stated that on 2.3.87, she filed a petition against satpal singh, accused, under section 9 of hindu marriage act. satpal singh, admitted the contents thereof by making statement on oath on 3.9.87. it was further stated that on 3.9.87, she alongwith her father, brother and other relatives namely pritam kaur, mediator, visited her in-laws house, to bring back all the dowry articles, which were entrusted to them, at the time of her marriage, but they replied that they had mis-appropriated the same and had dishonestly converted the same to their own use. they, thus, refused to return the same.3. in her preliminary evidence, gurdip kaur, complainant, herself stepped into the witness box as (pw1). she also examined pritam kaur (pw2), avtar kaur (pw3), gian kaur (pw4), darbara singh (pw5), and sucha singh (pw6). the trial court found sufficient grounds to summon, harbans kaur and satpal singh, accused, for the offence, punishable under section 406 of the indian penal code.4. in support of her pre-charge evidence, gurdip kaur, complainant examined gian kaur (pw1), avtar kaur (pw), saroop singh (pw4), and she her self appeared as (pw3). thereafter, she closed her pre-charge evidence.5. the trial court came to the conclusion that prima-facie case, under section 406 of the indian penal code, was made out, against the accused. charge was accordingly framed.6. after framing the charge, the accused suffered a statement that they did not want to cross-examine the witnesses, who were examined before charge.7. the statements of the accused, under section 313 of the code of criminal procedure, were recorded. they pleaded false implication.8. in their defence, the accused examined anup singh, sarpanch of village khun khun kalan (dw1), karam chand, chowkidar (dw2), and gaja nand, nambardar (dw3). thereafter, the accused closed their defence evidence.9. after hearing the counsel for the parties, and, on going through the evidence, on record, the trial court, acquitted the accused, as stated above.10. feeling aggrieved, the instant appeal, was filed by the appellant.11. i have heard the counsel for the parties, and have gone through the evidence and record of the case, carefully.12. the counsel for the appellant, submitted that the trial court was wrong in coming to the conclusion, that the accused did not mis-appropriate the dowry articles. she further submitted that the complainant demanded the dowry articles, given to the accused, but they refused to hand over the same to her. she further submitted that, under these circumstances, it could be said that the articles of dowry were dishonestly misappropriated by the accused. she further submitted that the trial court, was thus wrong in recording acquittal.13. on the other hand, the counsel for the respondents, submitted that in a petition for judicial separation, which was filed by the complainant, before the filing of the complaint, out of the decision whereof, the instant appeal has arisen, it was not stated by her, that she raised a demand of the dowry articles, from the accused, but they refused to hand over the same to her. he further submitted that no worthwhile evidence was led by the complainant that the accused dishonestly misappropriated the dowry articles. he further submitted that, under these circumstances, the trial court, was right in holding that the dowry articles were not misappropriated by the accused. he further submitted that the trial court, was thus right in acquitting the accused.14. it is settled principle of law, that the appellate court in appeal against acquittal, should not interfere with the judgment of the court below, if it comes to the conclusion, that twp views were possible, from the evidence, on record, and the view taken by the trial court, could be said to be the reasonably possible view. keeping this principle in view, the matter is required to be examined. the case of the complainant was that the articles of dowry were given to the accused, but when the same were demanded back, they refused to hand over the same and, as such, they dishonestly misappropriated the same. gurdip kaur, complainant, when appeared as, pw3, stated that after july, 1985, she never went to village khun khun kalan, to the house of her in-laws. she further stated that she filed a petition for judicial separation. she further stated that, in the petitions, for judicial separation and under section 125 of the code of criminal procedure, she did not state that she demanded back the dowry articles, but the accused refused. she also stated that in fhe written statement, filed in the divorce petition, she also did not state that she demanded back the dowry articles, but the accused refused. saroop singh, pw4, during the course of his cross-examination, stated that after the divorce in the year 1987, satpal, accused, told them that they should take back the dowry articles. he further stated that on the next day of divorce, he kartar kaur, gian singh, sarpanch, and pritam kaur, mediator, went to the house of the in-laws of gurdip kaur, and the accused started speaking. the trial court also held that the dowry articles were lying in the house of the accused, and they never refused to hand over the same, to the complainant. since the accused never refused to hand over the dowry articles, to the complainant, it could not be said that they dishonestly misappropriated the same. the finding of the trial court, that the accused, did not commit any offence, punishable under section 406 of the indian penal code, therefore, could neither be said to be perverse, nor illegal. the view taken by the trial court, could be said to be a reasonably possible view, on the basis of the evidence, produced in the case. the submission of the counsel for the respondents, in this regard, being correct, is accepted.15. no other point, was urged, by the counsel for the parties.16. in view of the above discussion, it is held that 'the judgment of acquittal, rendered by the trial court, is based on the correct appreciation of evidence, and law, on the point. the same warrants no interference and is liable to be upheld.17. for the reasons recorded above, the appeal, being devoid of merit, is dismissed. the judgment of acquittal, is upheld.
Judgment:

Sham Sunder, J.

1. This appeal is directed against the judgment of acquittal dated 27.07.94, rendered by the Court of the Judicial Magistrate, 1st Class, Dasuya, vide which, it acquitted the accused, for the offence punishable under Section 406 of the Indian Penal Code.

2. In nutshell, Gurdip Kaur, complainant, filed a complaint, allegeding therein, that she was married to Satpal Singh, accused, on 4.3.84, at Village Munak Kalan, Tehsil Dasuya. A week before the marriage, Shagun ceremony took place, at the house of the accused, where her father, brothers and maternal uncle gave Rs. 151/-, to him (Satpal Singh) and Rs. 51/- each to Harbans Kaur, Davinder Singh, and Ajit Singh, accused. Valuable clothes worth Rs. 2,000/-, fruits and sweets worth Rs. 1,500/-, were also given to the accused. A week after the Shagun ceremony, when the accused namely Davinder Singh, and Ajit Singh alongwith other persons, came for performing the marriage of Satpal Singh, accused, they raised a demand of cooler, sofa set, and sewing machine. It was further alleged by the complainant, in her complaint, that on 4.3.84, at the time of her marriage, various gifts, were given to her, as istri dhan. It was further stated that at the relevant time, after preparing a list of all the aforesaid dowry articles, in duplicate, the brother of the complainant entrusted the same (dowry articles) to the accused. Thereafter the complainant settled in her in-laws house. It was further stated that the accused were greedy persons. They were not satisfied with the dowry articles, and their demands increased day by day. They also started maltreating her, both physically and mentally for fulfilling their demands. It was further stated that she was also compelled by Satpal Singh, Harbans Kaur, and Davinder Singh, accused, to prevail upon her father to arrange the aforesaid dowry articles, and on her refusal she was beaten mercilessly. It was further stated that thereafter, her brother came at her in-laws house, to take her along, but when she was about to depart, Harbans Kaur, accused, told that there was unhealthy atmosphere, in the State and the locality and it was not safe and advisable for a new bridge, to wear gold ornaments, during journey, whereupon the complainant entrusted all her gold ornaments to her (Harbans Kaur). It was further stated that on 13.01.87, she demanded the set of gold ornaments from Harbans Kaur, accused, but she refused. It was further stated that Harbans Kaur, accused, tried to administer her poison in milk. On another occasion, all the aforesaid accused, tried to burn her alive, by sprinkling kerosene oil, but could not succeed. She further stated that the aforesaid circumstances, compelled her to leave the matrimonial home, in three wearing clothes alongwith her infant child on 31.01.87. Thereafter, on the same day, she reported the matter to her parents and police. The Police, did not take any action, against the accused. It was further stated that on 2.3.87, she filed a petition against Satpal Singh, accused, under Section 9 of Hindu Marriage Act. Satpal Singh, admitted the contents thereof by making statement on oath on 3.9.87. It was further stated that on 3.9.87, she alongwith her father, brother and other relatives namely Pritam Kaur, mediator, visited her in-laws house, to bring back all the dowry articles, which were entrusted to them, at the time of her marriage, but they replied that they had mis-appropriated the same and had dishonestly converted the same to their own use. They, thus, refused to return the same.

3. In her preliminary evidence, Gurdip Kaur, complainant, herself stepped into the witness box as (PW1). She also examined Pritam Kaur (PW2), Avtar Kaur (PW3), Gian Kaur (PW4), Darbara Singh (PW5), and Sucha Singh (PW6). The trial Court found sufficient grounds to summon, Harbans Kaur and Satpal Singh, accused, for the offence, punishable under Section 406 of the Indian Penal Code.

4. In support of her pre-charge evidence, Gurdip Kaur, complainant examined Gian Kaur (PW1), Avtar Kaur (PW), Saroop Singh (PW4), and she her self appeared as (PW3). Thereafter, she closed her pre-charge evidence.

5. The trial Court came to the conclusion that prima-facie case, under Section 406 of the Indian Penal Code, was made out, against the accused. Charge was accordingly framed.

6. After framing the charge, the accused suffered a statement that they did not want to cross-examine the witnesses, who were examined before charge.

7. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They pleaded false implication.

8. In their defence, the accused examined Anup Singh, Sarpanch of village Khun Khun Kalan (DW1), Karam Chand, Chowkidar (DW2), and Gaja Nand, Nambardar (DW3). Thereafter, the accused closed their defence evidence.

9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, acquitted the accused, as stated above.

10. Feeling aggrieved, the instant appeal, was filed by the appellant.

11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

12. The Counsel for the appellant, submitted that the trial Court was wrong in coming to the conclusion, that the accused did not mis-appropriate the dowry articles. She further submitted that the complainant demanded the dowry articles, given to the accused, but they refused to hand over the same to her. She further submitted that, under these circumstances, it could be said that the articles of dowry were dishonestly misappropriated by the accused. She further submitted that the trial Court, was thus wrong in recording acquittal.

13. On the other hand, the Counsel for the respondents, submitted that in a petition for judicial separation, which was filed by the complainant, before the filing of the complaint, out of the decision whereof, the instant appeal has arisen, it was not stated by her, that she raised a demand of the dowry articles, from the accused, but they refused to hand over the same to her. He further submitted that no worthwhile evidence was led by the complainant that the accused dishonestly misappropriated the dowry articles. He further submitted that, under these circumstances, the trial Court, was right in holding that the dowry articles were not misappropriated by the accused. He further submitted that the trial Court, was thus right in acquitting the accused.

14. It is settled principle of law, that the Appellate Court in appeal against acquittal, should not interfere with the judgment of the Court below, if it comes to the conclusion, that twp views were possible, from the evidence, on record, and the view taken by the trial Court, could be said to be the reasonably possible view. Keeping this principle in view, the matter is required to be examined. The case of the complainant was that the articles of dowry were given to the accused, but when the same were demanded back, they refused to hand over the same and, as such, they dishonestly misappropriated the same. Gurdip Kaur, complainant, when appeared as, PW3, stated that after July, 1985, she never went to village Khun Khun Kalan, to the house of her in-laws. She further stated that she filed a petition for judicial separation. She further stated that, in the petitions, for judicial separation and under Section 125 of the Code of Criminal Procedure, she did not state that she demanded back the dowry articles, but the accused refused. She also stated that in fhe written statement, filed in the divorce petition, she also did not state that she demanded back the dowry articles, but the accused refused. Saroop Singh, PW4, during the course of his cross-examination, stated that after the divorce in the year 1987, Satpal, accused, told them that they should take back the dowry articles. He further stated that on the next day of divorce, he Kartar Kaur, Gian Singh, Sarpanch, and Pritam Kaur, mediator, went to the house of the in-laws of Gurdip Kaur, and the accused started speaking. The trial Court also held that the dowry articles were lying in the house of the accused, and they never refused to hand over the same, to the complainant. Since the accused never refused to hand over the dowry articles, to the complainant, it could not be said that they dishonestly misappropriated the same. The finding of the trial Court, that the accused, did not commit any offence, punishable under Section 406 of the Indian Penal Code, therefore, could neither be said to be perverse, nor illegal. The view taken by the trial Court, could be said to be a reasonably possible view, on the basis of the evidence, produced in the case. The submission of the Counsel for the respondents, in this regard, being correct, is accepted.

15. No other point, was urged, by the Counsel for the parties.

16. In view of the above discussion, it is held that 'the judgment of acquittal, rendered by the trial Court, is based on the correct appreciation of evidence, and law, on the point. The same warrants no interference and is liable to be upheld.

17. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of acquittal, is upheld.