Manjinder Singh Vs. State of Punjab - 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. - pia-7915. the prosecution, thus, miserably, failed to bring home the guilt to the accused.sham sunder, j.1. this appeal is directed against the judgment of conviction, and the order of sentence, dated 06.07.95, rendered by the court of additional judge, designated court, amritsar, vide which, it convicted accused harvinder singh, and manjinder singh, for the offence, punishable under section 411 of the indian penal code, and sentenced them, to undergo rigorous imprisonment for a period of six months each.2. the facts, in brief, are that on 12.12.91, assistant sub inspector, savinder singh of police station chhehartta alongwith head constable jassa singh and other police officials, was present near gurdawara baba darshan singh, for checking and holding a picket (nakabandi) under the supervision of balbir singh, station house officer. at about 5.30 p.m., four persons on two scooters came from the side of bye-pass. they were asked to stop. one person who was pillion rider succeeded in running away from the spot. three persons were apprehended, scooter no. pb-02-c-2230, was being driven by harvinder singh and bhupinder singh, was the pillion rider. manjinder singh alias doctor, was driving scooter no. pia-7915. on personal search of manjinder singh, accused, one loaded pistol p1, was recovered, fro the right pocket of the pant worn by him. on unloading the same, one live cartridge p2, was recovered. manjinder singh, accused, could not produce any licence or permit, for the possession of the pistol, and the cartridge. on interrogation, manjinder singh, accused, told that the person who succeeded in running away was bau son of darshan singh, resident of village khaper kheri. harvinder singh, manjinder singh and bhupinder singh, could not produce any document of ownership' of the scooters. rough sketch pe of the pistol was prepared, which was attested by jassa singh, and dalbir singh, head constables. pistol p1, and cartridge p-2, were taken into possession, vide memo pe, attested by the prosecution witnesses. scooter no. pb-02-c-2230, was taken into possession, vide memo pg, attested by the prosecution witnesses. scooter no. pia-7915 was taken into possession, vide memo ph, which was also attested by the prosecution witnesses. chassis number and engine number of the scooters were mentioned, in the recovery memo ph. ruqa pj was sent to the police station, on the basis whereof, the first information report pj/1, was registered by sub inspector mohinder singh. rough site plan pk, of the place of recovery, with correct marginal notes, was prepared. the accused were arrested. the statements of the witnesses were recorded. after the completion of investigation, the accused were challaned.3. on their appearance, in the court, the accused were supplied the copies of documents, relied upon by the prosecution. charge under section 392 and 411 of the indian penal code, as also under section 3/4 of the terrorist disruptive activities (prevention) act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.4. the prosecution, in support of its case, examined deepak kumar (pw-1) ripud-aman tejpal (pw2), assistant sub inspector savinder singh (pw-3), head constable jassa singh (pw-4), surinder singh, clerk dto office, amritsar (pw5) and head constable mohinder singh, armourer (pw-6). thereafter, the public prosecutor for the state, closed the prosecution evidence.5. the statements of the accused under section 313 of the code of criminal procedure, were recorded. they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. they pleaded false implication. they, however, did not produce any evidence, in defence.6. after hearing the counsel for the parties, and, on going through the evidence, on record, the trial court, convicted harvinder singh and manjinder singh, accused, for the offence, punishable under section 411 of the indian penal code, but acquitted them, of the remaining offences.7. feeling aggrieved, the instant appeal, was filed by manjinder singh, accused (now appellant).8. i have heard the counsel for the parties, and have gone through the evidence, and record of the case, carefully.9. the counsel for the appellant, submitted that no offence, punishable under section 411 of the indian penal code was constituted, but the trial court, was wrong, in recording conviction, and awarding sentence for the same. he further submitted that no evidence was produced by the prosecution, to prove that scooter no. pia-7915, which was allegedly recovered from the appellant, belonged to deepak kumar and, as such, was the stolen property. the submission of the counsel for the appellant, in this regard, appears to be correct. savinder singh, assistant sub inspector, pw-3, is the investigating officer. it was he, who apprehended accused manjinder singh, who was found in possession of scooter no. pia-7915. the prosecution was required to prove that scooter no. pia-7915, which was allegedly recovered from manjinder singh, and his companion, was the ownership of deepak kumar, from whom, the same was allegedly snatched. deepak kumar, stated that he was the owner of scooter no. pcm-6623, and not pia-7915. it appears that scooter no. pia-7915, and scooter no. pcm-6623 were two different scooters. surinder singh, clerk, office of the dto, amritsar, when appeared as, pw-5 stated that he brought the summoned record of scooter no. pcm-6623, bearing chassis no. 230217, and engine no. 229100. he did not state that chassis number of scooter no. pia-7915, was the same, as that of scooter no. pcm-6623, which belonged to deepak kumar. no cogent evidence was produced by the prosecution that rake number plate bearing no. pia 7915, was affixed to scooter no. pcm-6623. the registration certificate or copy thereof in relation to scooter no. pcm 6623, was not got exhibited so as to ascertain that the chassis and engine number of the scooter recovered from manjinder singh, tallied with the chassis number and engine number of scooter no. pcm-6623. assistant sub inspector savinder singh, pw-3 stated that he did not verify regarding the 'registration of scooter no. pia-7915 allegedly recovered from manjinder singh. the bald statement of savinder singh that the scooter recovered from manjinder singh, was the one, which belonged to deepak kumar, and bore the actual no. pcm-6623, in the absence of any documentary evidence, which could be easily available, was hardly of any consequences, to bring home the guilt of the accused. since scooter no. pia-7915, did not belong to deepak kumar, as to who was the owner thereof, was for the prosecution to prove. had the prosecution proved that scooter no. pia-7915, belonged to deepak kumar, and the same was found in possession of the accused, in the absence of furnishing any proof, with regard to the ownership thereof, it could be said that he dishonestly received and retained the stolen property. even, deepak kumar, did not lodge any report, with regard to the theft of scooter no. pia-7915. the prosecution, thus, miserably, failed to bring home the guilt to the accused. in these circumstances, no offence, punishable under section 411 of the indian penal code, was made out. the trial court, thus, acted on conjectures and surmises, in holding that the offence, punishable under section 411 of the indian penal code, was committed by the appellant. the finding of the trial court, are liable to be set aside. the submission of the counsel for the appellant being correct, is accepted.10. no other point was urged, by the counsel for the parties.11. the judgment of conviction and the order of sentence, rendered by the trial court, are not based, on the correct appreciation of evidence and law, on the point, and the same are liable to be set aside.12. for the reasons recorded above, the appeal is accepted. the judgment of conviction and the order of sentence are set aside. the appellant shall stand acquitted of the charge, framed against him. if the appellant is on bail, he shall stand discharged of his bail bonds, and, if he is in custody, he shall be set at liberty, at once, if not required, in any other case.13. the chief judicial magistrate, is directed to comply with the judgment, with due promptitude.