Jasa Bai and ors. Vs. Udey Singh - 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.g.r. majithia, j.1. this application has been moved by the plaintiff respondent/pre-emptor for extending the time for depositing the pre-emption amount.2. the facts :-udey singn, plaintiff respondent/pre empter (hereinafter the pre- emptor) filed a suit for possession by pre emption of the suit land. the suit was contested on numerous grounds. the trial court decreed the suit vide judgment and decree dated september 18, 1986. the same was affirmed in appeal by the first appellate court vide his judgment and decree dated february 3, 1979. the first appellate court directed the pre-emptor to deposit a sum of rs. 5983.25 (sale price) on april 30, 1979. the vendee-appellants, aggrieved against the judgment and decree of the first appellate court challenged the same in this court in r. s a. no. 690 of 1979. the appeal was admitted to hearing on may 12, 1979 and dispossession of the vendee-appellants (hereinafter the vendees) was stayed. the ad interim stay order was made absolute on july 13, 1979. civil misc. no. 2524-c of 1982 was moved by the preemptor for withdrawing the sale price. it was stated in the application that a sum of ks. 5983-25 was deposited by the pre emptor as directed by the first appellate court and the amount was lying in deposit with the stats bank of india, sirsa. the vendees had obtained an order staying their dispossession from the suit land and he had been deprived of the possession and also of interest on the sale price a prayer was also made that the sale price deposited by the pre emptor, as directed by the first appellate court, be allowed to be withdrawn and the same would be re-deposited as directed by this court while disposing of the appeal. the application came up for hearing on october 5, 1982 and the same was disposed of observing thus :-'this is an application by the respondent pre emptor for permission to withdraw the sale money deposited by him as delivery of the possession has been stayed. notice of this application was issued to the learned counsel for the appellant who has no objection if the prayer is allowed. accordingly, the respondent decree holder is allowed to withdraw the sale amount as mentioned in the application with the condition that he will re-deposit the same as directed by this court on the final date of hearing'.the appeal was dismissed by me on february 24, 1992 with the following observations :-'for the reasons aforesaid, the appeal fails and is dismissed, but with no order as to costs. the plaintiff was allowed to withdraw the sale amount by order dated october 5, 1982 passed in civil misc. no. 2524-;c of 1982. he is directed to deposit the same within two months from the date of the judgment.'3. this application has been moved by the pre emptor for extending time for re-depositing the sale price. it is stated therein that the regular second appeal was decided on february 24, 1992; that the application for obtaining the certified copy of the judgment and decree was moved on february 25, 1992; that the judgment and decree was prepared on august 4, 1992 but was delivered to the applicant only on october 12, 1992; that the counsel sent the intimation to the applicant through letter dated february 24, 1992 followed by another letter dated august 4, 1992, but the same were not received by him. the applicant contacted the lawyer's clerk on his own and got the information and a copy of the judgment was delivered to him on october 13, 1992. the applicant's counsel in the trial court advised the applicant that the amount could not be deposited till the time was extended by this court and it is in these circumstances that this application has been moved for extending the time. the application was moved in this court on october i5, 1992 and the averments made therein are duly supported by the affidavit of the applicant. there is no rebuttal to these averments.4. shri g. s chawla, advocate was the counsel for the vendee appellants in the regular second appeal. notice of this application was given to him. shri navkiran stngh, advocate son of shri g s. chawla, advocate appeared on december 17, 1992 and stated that the client had withdrawn the brief from him and that notice be issued to the vendee-appellants. on april 2, 1993, shri navkiran singh, advocate appeared and stated that he had received instructions to appear on behalf of the vendee-appellants and at the request of the counsel for the parties, the application was adjourned to april 23, 1993.5. learned counsel for the vendee-appellants stated that the tinie allowed by this court for re-depositing the sale price could not be extended and in support of this submission, ta relied upon the judgment of the apex curt in johri singh v. sukh pal singh, a. i. r. 1989 s. c. 2073. this judgment does not support the vendee-appellants ; rather it supports the contention of the pre emptor.6. the brief resume of the facts stated above reveals that the sale price was deposited by the pre emptor as directed by the first appellate court. the judgment and decree of the first appellate court was challenged in this court through regular second appeal and the vendee appellants got an order from this court staying their dispossession. the pre-emptor moved an application for withdrawal of the sale price and the same was allowed in the presence of the counsel for the vendee appellants the vendees are still in possession of the disputed land. after the decision of the regular second appeal, they did not surrender the possession to the pre-emptor. they get a right to receive the sale price only after surrendering possession of the suit land to the pre-emptor. they have succeeded in retaining the possession even till today. the assertion of the pre-emptor that they had no knowledge of the judgment rendered by this court in the regular second appeal till october 12, 1992 has not been controverted by the vendees. the assertion of the pre-emptor that the letters addressed by his counsel to him intimating about the decision of the appeal were not received by him remains uncontroverted in the absence of any rebuttal, the plea of the pre-emptor that he had no knowledge of the decision of the appeal till october 12, 1992 has to be believed. the court has the discretion under section 148, civil procedure code, to extend the time even though the time fixed in pre-emption decree has already expired, provided that the mistake is bona fide and was not indicative of negligence or inaction. in the instant case, the facts indicated above firmly establish that the pre-emptor has been acting bona fide and no negligence or inaction can be attributed to him and on the proved facts, to further the cause of justice time should be allowed to him to re-deposit the sale pricefor the reasons stated above, i allow this application and permit the pre-emptor/applicant to re-deposit the sale price in terms of the decree as indicated in my judgment and decree dated february 24, 1992, on or before july 23, 1993.