Mahant Kapil Dev Vs. Smt. Parkash Wati and ors. - 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 suit was contested by other defendants as well.s.d. anand, j.1. the defendant-petitioner has filed the present petition in order to obtain invalidation of the impugned order vide which the learned trial court allowed the plaintiffs-respondents to amend the plaint, and to thereby claim a relief for a decree for the joint possession of the land in suit.2. facts, having relevant bearing on the controversy, in the first instance-the plaintiffs-respondents filed a suit for a declaration that they are owners (to the extent of l/4th share each) in possession of the land in suit. the property was owned by one dr. madho ram, who was father of the plaintiff-respondent no. 3 and 4 (hereinafter referred to as the 'performa respondents'). he died intestate on 16.9.1995, leaving behind defendants no. 1 to 4 as legal heirs. in terms of the hindu succession act, respondents no. 1 and 2 inherited the entire estate of dr. madho ram to the extent of 1/2 share each. the petitioner herein, being a son of respondent no. 4-dr. rajinder partap, did not inherit any right title or interest therein as he was not a legal heir of deceased dr. madho ram. the petitioner herein was a big boozer. he was an nri who returned from usa and started residing with dr. madho ram in a house which had been built by dr. madho ram in the name of respondent no. 4-dr. rajinder partap (father of the petitioner herein). the petitioner herein forged a will purported to have been executed by dr. madho ram. the plaintiffs-respondents filed a suit for the relief aforementioned by raising a plea that the impugned will is a forged affair.3. the petitioner herein contested the plea aforementioned and averred the validity of the impugned will. the averment made in the context, was that the property in suit had been managed by dr. madho ram, as a mahant, for religious purpose (dharm arth) and dr. madho ram appointed him as chela 'gaddi nasheen' and executed a registered will dated 19.4.1995 in his favour. the petitioner denied that the plaintiffs-respondents had anything do with the possession of those properties.the suit was contested by other defendants as well.4. in the course of the replication, the plaintiffs-respondents reiterated their proprietary and possessory title of the properties in suit. the learned trial court, while allowing the amendment plea, held that the amendment plea shall not change the nature of the suit which (suit) shall continue to be a cause for a declaration and permanent injunction. the further observation made by the learned trial court, in the context, was that the alternative relief was being added by way of amendment due to change in circumstances during the pendency of the suit i.e. 'defendant no. 3 has stated claiming the possession when his affidavit by way of evidence as examination-in-chief has been filed'.5. the learned counsel for the defendant-petitioner argued that the above quoted finding by the learned trial court was factually incorrect inasmuch as it is not that the defendant-petitioner had asserted the possessory title in the course of examination-in-chief for the first time. in fact, the argument proceeded, there was a plea in the written statement itself that the possession of the properly in suit was that of defendant-petitioner. it was also argued that the amendment is highly belated inasmuch as the case is already at a mature stage and there is an order passed by a co-ordinate bench of this court in civil revision no. 5202 of 2004 directing the expeditious disposal of the suit on or before 31.8.2006. the plea raised in the context, is that the order aforementioned has also been violated by the learned trial court (on account of the non-disposal thereof within the outer limit fixed by this court).6. it is apparent from a conjunctive perusal of the pleadings (plaint, written statement and replication) that the plaintiffs-respondents had throughout been averring that it is they who are in possession of the property in suit and are also entitled to the proprietary | title thereof as natural heirs of dr. madho ram who died intestate. in the course of the written statement, the plea was resisted in toto and the averment by defendants therein was that it is they who are in possession of the property in suit. that averment was, thus, in complete denial of the averment made by the plaintiffs-respondents in the plaint and the replication about their possessory title of the land in suit.7. the learned trial court had, thus, committed a factual error by observing that the filing of the amendment had been occasioned by the making of an averment in the course of the affidavit (examination in chief) of defendant no.3 at the trial. the allowance of the plea, though proposed to be raised in the alternative, shall enable the plaintiffs-respondents to go wriggle out of their consistent plea it is they who are in actual possession of the property in suit. the allowance of that plea at the indicated belated stage is legally inappropriate. the reliance placed by the learned senior counsel appearing on behalf of the respondents, on puran ram v. bhaguram and anr. 2008(2) scc 166; jai jai ram manohar lal v. national building material supply, gurgaon, prem bakshi and ors. v. dharam dev and ors. : a.i.r. 2002 s.c. 559 : (2002) 2 s.c.c. 2 and raj kumar v. dimpender kaur sethi 2004(8) scc 196 is misconceived. in puran ram's case (supra), the facts were entirely difterentthat was a suit filed for specific performance of an agreement and the proposed amendment only sought change of 'a part of the description of the suit property'. jai jai ram manohar lai's case (supra) was also based upon different facts. in that case, the suit had been filed by the plaintiff in the business name. when the party opposite raised a plea that the firm being an unregistered entity was incompetent to sue, the plaintiff applied for amendment to pursue the suit in his individual name. in prem bakshi's case (supra) too, the facts were entirely different. in that case, the plaintiff therein, 'only want to bring to the notice of the court the subsequent facts'. in the present case, it has been found on point of fact that no subsequent fact prompted the filing of the amendment plea and the learned trial court committed a factual error. in raj kumar's case (supra) also the facts were entirely different. that was a suit for specific performance where in the plaint plaintiff omitted to aver that he was and is ready and willing to perform his part of the agreement. the proposed amendment only enabled him to insert a plea that 'the plaintiff was and is ready and willing to perform his part of the agreement'.8. in the light of the foregoing discussion, it is apparent that the impugned order deserves to be invalidated and it is so ordered accordingly. the petition shall stand allowed. the impugned order shall stand set aside. however, in the peculiar circumstances of the case including the order passed a coordinate bench (hemant gupta, j.) of this court in civil revision no. 5202 of 2004, the learned trial court shall proceed to dispose of the suit at earliest by giving it priority over the other file.