Ajmer Singh Vs. the State of Punjab and anr. - 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. - 2. it is contended on behalf of these petitioners that they were necessary parties in the surplus proceedings and having not been admittedly heard, the impugned orders have to fail on that ground also. 315 and 316 of 1982 contends that the petitioners were the necessary parties and notice ought to have been issued to them, failure of which would vitiate the proceedings culminating into the order passed by the revenue authorities, inclusive of the order dated april 15, 1959. 5. the learned counsel for state, however, contests the points, as noticed above, and contends that it is the date of order from where limitation shall have to be computed, more so, when ajmer singh was present when the impugned order dated april 15, 1959 was passed. 6. after hearing the learned counsel for the parties, i am of the view that there is merit in the contention of the learned counsel appearing for the land-owner as well as the transferees. in vir singh's case (supra), it was held that the combined reading of sub-rules (6), (7) and (8) of rule 6 of the punjab security of land tenures rules clearly indicates that the limitation is to start from the date of the communication of the decision and how that communication is made, is by service of form 'f' on the land-owner. that being so, the ratio of decision in ranjit ram's case (supra) clearly coves the case of the petitioners and, therefore, the land in hand of the present owners has necessarily to be assessed for computing the surplus area, if any, under the punjab land reforms act, 1972. 7. in view of what has been stated above, the order dated april 15, 1959 passed by the collector as also passed by the commissioner on december 4, 1979 and the financial commissioner on august 1, 1980 are set aside.v.k. bali, j.1. this order shall dispose of civil writ petition no. 4355 of 1980 filed on behalf of the land-owner as also civil writ petition nos. 315 and 316 of 1982 filed on behalf of the vendees from the land-owner. the facts of the case have, however, been extracted from petition no. 4355 of 1980, which are as follow :-ajmer singh was a big land-owner and the concerned authority, i. e. the collector (agrarian), vide his order dated april 15, 1959 declared 3 standard acres and 5 1/2 units of land belonging to ajmer singh as surplus under the punjab security of land tenures act, 1953. the matter was agitated by ajmer singh and the appeal filed by him before commissioner was dismissed on december 4, 1979 on the solitary ground that the same was barred by time. still being aggrieved, ajmer singh filed revision before the financial commissioner, which too did not find favour with him and the same was also dismissed vide his order dated august 1, 1980. the land-owner, ajmer singh, has approached this court for setting aside the orders aforesaid, primarily on the ground that inasmuch as form 'f' which was issued under rule 6 of the punjab security of land tenures rules, 1956, was served upon ajmer singh on october 17, 1980, as is apparently made out even from the contents of paragraph 6 of the written statement filed in the present case and that being so, the limitation to agitate the impugned orders was sixty days from the date of service of form 'f' and not from the date of the order. it as much as ajmer singh died during the pendency of the present petition, the second point raised by the learned counsel for the petitioner is that the land having not been utilized, the same had to be re-assessed under the punjab land reforms act, 1972. ft requires to be mentioned here that other two petitions have been filed by the vendees, who are stated to have purchased the land in the year 1954, i. e. prior to the order declaring the land of ajmer singh as surplus.2. it is contended on behalf of these petitioners that they were necessary parties in the surplus proceedings and having not been admittedly heard, the impugned orders have to fail on that ground also.3. in the written statement filed on behalf of the respondents, the facts, as narrated above, have not been disputed. it is, however, pleaded that inasmuch as ajmer singh was present at the time when the order dated april 15, 1959 by the collector (agrarian) was passed, the limitation would commence from the date of passing of the order or at the most from the date when certified copy of the order was made available to him.4. mr. sarjit singh, learned senior advocate, appearing on behalf of the petitioner, who is stated to be daughter-in-law of amarjeet kaur, who in turn, was widow of ajmer singh, contends that the orders passed by the collector, the commissioner and the financial commissioner holding that the appeal filed by ajmer singh, was barred by time, are wholly illegal and cannot sustain. it is contended that the starting point of limitation is the date of communication of the decision as only service of form 'f' on the tenant or landlord creates a right of appeal as also that the presence of the parties at the time of decision is not material in support of the contention aforesaid, the learned counsel relies upon the decisions of this court reported as vir singh v. the state of punjab , (1970) 72 p. l. r. 304. and nanak singh v. state of haryana , 1991 p. l. j. 675. it is further contended by the learned counsel for the petitioner on the basis of ranjit ram v. financial commissioner, punjab , (1981) 83 p. l. r. 492 (f. b.). and ajit kaur v. punjab state , 1980 p. l. j. 354 (f.b.). which are judgments of full bench of this court, that on demise of a big land owner, the land declared surplus, which has not been utilised, has to be re-assessed for computing the surplus area under the punjab land reforms act, 1972. as noticed above, the learned counsel for the vendee-petitioners in civil writ petition nos. 315 and 316 of 1982 contends that the petitioners were the necessary parties and notice ought to have been issued to them, failure of which would vitiate the proceedings culminating into the order passed by the revenue authorities, inclusive of the order dated april 15, 1959.5. the learned counsel for state, however, contests the points, as noticed above, and contends that it is the date of order from where limitation shall have to be computed, more so, when ajmer singh was present when the impugned order dated april 15, 1959 was passed.6. after hearing the learned counsel for the parties, i am of the view that there is merit in the contention of the learned counsel appearing for the land-owner as well as the transferees. it is true that the limitation would start from the date of communication of the decision, which is communicated by specific mode, .i. e. service by form 'f' on the land-owner. in vir singh's case (supra), it was held that the combined reading of sub-rules (6), (7) and (8) of rule 6 of the punjab security of land tenures rules clearly indicates that the limitation is to start from the date of the communication of the decision and how that communication is made, is by service of form 'f' on the land-owner. as prescribed under sub-rule (6) the area is declared surplus after going into the objections which may be preferred by the land-owner or the tenant and thereafter under sub-rule (7) an imperative duty is cast on the collector or the special collector to prepare a statement in form 'f' and forward it immediately for service on the land-owner or the tenant. the purpose of serving this form on the landowner or the tenant is to let him know the actual decision of the collector giving detailed statement as to what area has been declared surplus and which area has been left at his (land-owner's or tenant's) permissible area. the order passed under sub-rule (6) together with the statement in form 'f' constitutes the actual decision of the collector affecting a landowner or a tenant. it is after the service of form 'f' that the person concerned knows his actual position and the decision made against him. it is for this reason that the framers of the rule have made it imperative that the land-owner or the tenant concerned should be served with form 'f' as given in sub-rule (7.) the period of limitation in the present case, thus, commences from the date when form 'f' was served on ajmer singh, which is admitted to be october 17, 1980 i. e. even after the orders were passed by the financial commissioner. the appeal filed by ajmer singh was, thus, within limitation and was wrongly rejected as time barred. the orders passed by the collector dated april 15, 1959 as also passed by the commissioner and the financial commissioner deserve to be set aside on that score alone. however, if that course alone is adopted, the matter shall have to be re-agitated on merits before the revenue authorities which will, in my view, be a futile exercise. it is not disputed that the original land-owner ajmer singh died during the pendency of the present petition and also that during all these years the land was not utilized. that being so, the ratio of decision in ranjit ram's case (supra) clearly coves the case of the petitioners and, therefore, the land in hand of the present owners has necessarily to be assessed for computing the surplus area, if any, under the punjab land reforms act, 1972.7. in view of what has been stated above, the order dated april 15, 1959 passed by the collector as also passed by the commissioner on december 4, 1979 and the financial commissioner on august 1, 1980 are set aside. it shall, however, be open to the authorities to re-assess the land in the hand of surinder kaur, who as referred above is daughter-in-law of ajmer singh, under the provisions of punjab land reforms act. 1972. it is, however, made clear that if any such exercise is done, the vendees from ajmer singh shall also be heard. the petition is decided in the manner, indicated above but in the facts and circumstances of the case, there shall be no order as to costs.