Hem Raj and anr. Vs. Jagdish Rai - 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. - the rent controller, on the basis of the evidence on record, held that the landlord has failed to establish that petitioner no. gupta, advocate, learned counsel for the petitioners contended that the order under revision is liable to be set aside as the petitioners have clearly established on record by producing volumi- nous documentary evidence that both the petitioners, are carrying on the business as partners in the shop since 20 1.1969. he further submitted that no objection whatsoever was taken by the landlord when the documents were produced and proved on the record, and therefore, the same were rightly taken into consideration by the rent controller. exhibit r-7 to r-14 and balance sheets (rokar and khata entries), exhibit r-15 to r-30. a11 these documents taken together clearly indicate that petitioner no. baldev kishan tarlok chand for the period ending 31.3.1977. therefore, the landlord has failed to establish on record that sub-tenancy came into existence after 12.12.1976. the fact that petitioner no. the facts proved on the record of this case clearly point out that it is a case of continuing of earlier partnership tenant was firstly carrying on the business under the name and style of m/s.v.k. jhanji, j.1. this is tenant's revision directed against the order of the appellate authority whereby the order of the rent controller was set aside and the tenant was ordered to be ejected.2. landlord (respondent herein) filed an ejectment application against the petitioner alleging therein that the shop in dispute was let out to hem raj, petitioner no. 1 who has sublet the same to petitioner no. 2 it was specifically alleged that the subletting came into being after 12.12.1976 without the consent of the landlord. in reply to this, tenant in his written statement took up the plea that ever since the inception of the tenancy, he has been in possession of the shop and has been doing cloth business in partnership with petitioner no. 2. he denied that he ever sublet the shop to petitioner no. 2.3. rent controller, after appreciating the entire evidence on the record, dismissed the ejectment application. the rent controller, on the basis of the evidence on record, held that the landlord has failed to establish that petitioner no. 1 has sublet the shop to petitioner no. 2. in consequence thereof the ejectment petition was dismissed. on appeal by the landlord, the appellate authority set aside the order of the rent controller and ordered ejectment of the tenant. this order is being challenged in this civil revision.4. mr. s. p. gupta, advocate, learned counsel for the petitioners contended that the order under revision is liable to be set aside as the petitioners have clearly established on record by producing volumi- nous documentary evidence that both the petitioners, are carrying on the business as partners in the shop since 20 1.1969. he further submitted that no objection whatsoever was taken by the landlord when the documents were produced and proved on the record, and therefore, the same were rightly taken into consideration by the rent controller.6. on the other hand, learned counsel for the landlord, mr. h. s. gill, advocate submitted that petitioner no. 1 has sublet the premises to petitioner no. 2 with effect from 1.4.1977. with regard to the partnership deed, exhibit rw 10/1, dated 22.4.1977, he submitted that the same is a sham and paper transaction and has been created to camouflage the act of subletting.6. i have gone through the evidence with the help of the learned counsel for the parties and taking into consideration the respective contentions of the learned counsel, i am of the view that this revision deserves to succeed.7. landlord in this petition has alleged that petitioner no. 1 has sublet the shop to petitioner no. 2 on or after 12.(sic).1976. petitioners in their written statement have denied and maintained that they are carrying on business since 1969 in partnership. in order to prove this fact, petitioners have produced and proved on record, exhibit r-1, partnership deed dated 1.5.1969, exhibit r-2, partnership deed dated 1.4.1972, exhibit r-3, partnership deed dated 16.4.1973. they have also produced, exhibit r-4 and r-5 in order to show that the firm ; m/s. baldev kishan tarlok chand was registered with the registrar of firms. in order to prove that there was effective partnershiy between them, they produced income-tax returns. exhibit r-7 to r-14 and balance sheets (rokar and khata entries), exhibit r-15 to r-30. a11 these documents taken together clearly indicate that petitioner no. 1 was carrying on the business with petitioner no. 2 in partnership under the name and style of m/s. baldev kishan tarlok chand since 1969 and carried on the same till 31.3.1(sic)77 when the firm was dissolved and a new partnership firm came into being vide partnership deed dated 2.4.1977, exhibit rw-10-1. partnership deed dated 2.4.1977 shows that both the partners agreed to share profits and losses of the business to the extent of 25% and 75% respectively. this partnership deed was submitted to the income-tax department in the present case. i am not in agreement with the argument of learned counsel for the respondent that this document was created after the ejectment petition was filed. the ejectment petition was filed on 25.4.1977 whereas new partnership came into existence with effect from 1.4.1977 when the old firm, namely, m/s. baldev kishan tarlok chand was dissolved and a new firm known as m/s. baldev kishan samiti kumar came into existence on the basis of the partnership deed, exhibit rw-10/1. ev(sic) otherwise, i find that the landlord in his plaint has pleaded that sub-tenancy was created on or after 12.12 1976 but tenant has produced on record, accounts of the previous firm ; m/s. baldev kishan tarlok chand for the period ending 31.3.1977. therefore, the landlord has failed to establish on record that sub-tenancy came into existence after 12.12.1976. the fact that petitioner no. 1 agreed to share profits and losses of the business to the extent of 25 per cent is also not enough to prove that partnership deed dated 2.4.1977, exhibit rw-10/1 is a sham and paper transaction. the facts proved on the record of this case clearly point out that it is a case of continuing of earlier partnership tenant was firstly carrying on the business under the name and style of m/s. baldev kishan tarlok chand and with effect from 1.4.1977 started carrying on the business under the name and style of m/s. baldev kishan samti kumar. the other circumstance that petitioner no. 1 has shifted to his native village chauhanke khurd which is at a distance of ten miles from barnala, is also of no consequence. firstly, there is no definite evidence on record to prove that petitioner no. 1 has shifted to his village from barnala ; secondly, even if he has shifted to his village is not enough to hold that petitioner no. 1 has transferred his rights in the tenanted shop to petitioner no. 2. village chauhanke khurd where petitioner no. 1 is alleged to have shifted is not that far away from barnala and, therefore, it would not be difficult for him to reach his place of business every day. so long as petitioner no. 1 is having control over, the business, subletting cannot be inferred.8. under the circumstances, the order of the appellate authority cannot be sustained and is accordingly set aside. in the result, this petition is allowed and the order of the appellate authority ordering ejectment of the tenant is set aside and that of the rent controller is restored with no order as to costs.