Smt. Shobha Rani and anr. Vs. Shri Parshotam Dass and ors. - 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. - 8. in the light of above discussion, i do not see any infirmity or error of jurisdiction in the well considered order passed by the court of senior sub judge, karnal and seeing no merit in this revision dismiss the same, leaving the parties to bear their own costs.r.l. anand, j.1. this is a civil revision and has been directed against the order dated 10.11.1980 passed by the court of senior sub judge, karnal who dismissed the application of the petitioners smt. sobha rani and smt. pushpa rani daughters of sh. pran nath, advocate, under section 22 of the hindu succession act, 1956. the pleadings of the parties can be summarised in the following manner :-both the petitioner smt. shobha rani and smt. pushpa rani are the daughters of shri pran nath, advocate, deceased. smt. shila wanti, respondent no. 2 is the widow, while sarvshri balraj and ranbir singh are the sons of pran nath, advocate, who died on 20.2.1971 intestate. the subject-matter of the dispute is the residential property situated at subhash colony, karnal, which was held by the deceased at the time of his death. after his death, the property has been sold by smt. shila wanti, respondent no. 2 i.e. the widow of deceased as per registered sale deed dated 2.6.1978 in favour of parshotam dass, respondent no. 1 since deceased now represented by his legal representatives. the sale was executed for a sum of rs. 12,000/- and smt. shila wanti respondent no. 2 represented herself to be the sole owner of the said property. the petitioners alleged that the sale to the extent of their 2/5th share in the property was void ab initio as their mother smt. shila wanti, respondent no. 2 had only l/5th share. it was also asserted by the petitioners that in view of the statutory right conferred upon them under section 22 of the hindu succession act, they have got a preferential right to acquire 3/5th share in that property belonging to respondents no. 2 to 4. with the above averments, the petitioners prayed for the award of a decree for acquiring the interest of respondents no. 2 to 4 to the extent of 3/5th share on payment of proportional price and for declaration that the sale with regard to the remaining 2/5th share belonging to them was a nullity.the above petition was resisted by respondent no. 1 purshotam dass who raised certain legal objections as to the maintainability of the action. it was also pleaded that the application was not maintainable in the present form as the petitioner was required to file a civil suit, the court of senior sub judge at karnal, had no jurisdiction to entertain the application.3. from the above pleadings of the parties the trial court framed the following issues :-1) whether this court is competent to entertain petition under section 22 of the hindu succession act, 1956? opa.2) whether the petition is maintainable in the present form opa.3) relief.4. on the conclusion of the proceedings, issue no. 1 was decided in favour of the petitioners and against the respondents. however, issue no. 2 was decided against the petitioners and it was held that their petition under section 22 of the hindu succession act was not maintainable. they were required to file a regular suit for possession. resultantly, the application was dismissed vide order dated 10.11.1980. aggrieved by the said order the present revision which is being disposed of with the assistance of shri m.s. jain, advocate, appearing on behalf of the petitioners and shri y.k. sharma, advocate, who gave appearance on behalf of respondents, and with their assistance i have gone through the record of this case.5. section 22 of the hindu succession act reads as follows :-22) preferential right to acquire property in certain cases :1) where, after the commencement of this act an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class i of the schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest in the property right to acquire the interest proposed to be transferred.2) the consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.3) if there are two or more heirs specified in class i of the schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.explanation.- in this section, 'court' means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the state government may, by notification in the official gazette, specify in this behalf.'6. learned counsel for the petitioners submitted that the impugned order dated 10.11.1980 is liable to be set aside. he submitted that the court of senior sub judge, karnal, erred in holding that the application under section 22 of the hindu succession act is not maintainable. in the alternative, it was pleaded that if the trial court had held that the application under section 22 of the hindu succession act was not maintainable, it was obligatory on the part of the trial court to give the opportunity to the petitioner to amend the application so as to convert it intestate for possession. on the contrary it was submitted by the learned counsel for the respondents that the remedy availed under section 22 of the act was totally mis-conceived. the second prayer of the learned counsel for the petitioners also has no legs to stand in view of the specific objection taken up by the respondents. at no point of time, the petitioners ever made a request to the court for the conversion of the application into a regular suit and in these circumstances, the prayer at this stage cannot be allowed. after considering the rival contentions of the parties i am of the considered opinion that this petition is devoid of any merit and is liable to be dismissed. in a.i.r. 1976 kerala 19, valliyil sreedevi amma v. subhadra devi and ors., it was held that where one of the co-heirs transfer his interest in violation of section 22(1) of the hindu succession act, the remedy of the other co-heirs to enforce their transfer interest is by way of a suit and the application under section 22(1) of the act is not maintainable. the hon'ble bench of kerala high court after interpreting the provisions of section 22 came to the conclusion that the object of sub-section (1) of said section was that in cases where by virtue of intestate succession under the act any interest in immovable property has devolved upon two or more heirs specified in class i of the schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. it was also held that the said intention of parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. so far as the remedy is concerned it was held that it lies in the filing of regular civil suit before the competent authority. this view of the kerala high court has again been followed in a.i.r. 1980 calcutta 53, tarak das ghosh v. sunil kumar ghosh, where it was held that application disposed of under section 22 of the hindu succession act is not a decree and was not. appealable. order on such application was not one of the kinds of orders which are specifically made appealable by c.p.c. under section 104 and order 43 rule 1 c.p.c. the calcutta high court further held that in cases where any statute creates a right without specifying the procedure for enforcement of such right, the person intending to enforce such right shall have to resort to the procedure contained in the civil p.c. for enforcement of his right. accordingly the right conferred by section 22 can be enforced only by the institution of a regular suit. the above view of mine also finds support from 1970 p.l.j. 587, jaswant and ors. v. smt. basanti devi, a division bench authority of this court where it was held that section 22 of the hindu succession act merely gives a sort of right of pre-emption. if the right under section 22 is treated analogous to the right of pre-emption then the suit was maintainable and the application under, section 22 of the hindu succession act on the part of the present petitioners was mis-conceived.7. faced with the above situation, the learned counsel for the petitioners relied upon an authority of calcutta high court reported as a.i.r. 1979 calcutta 380, promode kumar ghosh and ors. v. the calcutta electric supply corporation ltd. and ors., and a.i.r. 1981 madhya pradesh 250, ghewarwala jain v. hanuman parsad and anr., and the contention was raised by shri jain that it was obligatory on the part of the trial court to afford an opportunity to the petitioners asking them to amend the application and to convert it into a suit. the contention is devoid of any merit. it was specifically pleaded that the contesting respondent no. 1 in his reply that the remedy availed by the petitioners was not tenable. the citations of calcutta and madhya pradesh high court are totally alien to the controversy in hand. in the madhya pradesh citation the application was moved by the petitioners for amendment of the application which was allowed by the court itself. in the present case, no such application was ever moved by the petitioner before the trial court and it will be not proper at this stage to allow the prayer made by shri jain. the citation of a.i.r. 1979 calcutta 380 has been rightly distinguished by the trial court in para no. 12 of the order.8. in the light of above discussion, i do not see any infirmity or error of jurisdiction in the well considered order passed by the court of senior sub judge, karnal and seeing no merit in this revision dismiss the same, leaving the parties to bear their own costs.