Darshan Singh Vs. the State of Punjab Through Secretary, Defence Service, Welfare Deptt. 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. - the argument being that no one could be said to be dependent of a dead person 6. the primary rule of interpretation is no doubt to construe the language of a statute by giving the words used, their ordinary and natural meaning, but it is equally well settled that there is another aspect of it too, which has so aptly been expressed by judge learned hand. it is true that the words used even in their literal sense are the primary and ordinarily the most reliable source of interpreting the meaning of any writing be it a statute contract or anything else ;but it is one of the surest indices of a mature and developed jurisprudence not to make fortess out of the dictionary, but to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative behaviour is the surest guide to their meaning. 12. in so far as the petitioner is concerned, it follows that he would clearly be entitled to the certificate of dependency as sought by him.s.s. sodhi, j.1. the issue in controversy here concerns the benefit of reservation in posts for dependents of ex -serviceman. to be specific, whether it also extends to dependents of deceased ex-serviceman ?2. the relevant rule and the proviso thereunder governing the matter being rule 4 of the punjab recruitment of ex-servicemen rules 1982 (hereinafter referred to as 'the rules'). this rule 4 reads as under : -'--(1) subject to the provisions of rule 3, fifteen per cent of the vacancies to be filled in by the direct appointment in all the state civil services and posts connected with the affairs of the state of punjab shall be reserved for being filled in by recruitment of ex- serviceman:provided, that where an ex-serviceman is not available for recruitment against reserved vacancy, such vacancy shall be reserved to be filled in by recruitment of the wife or one dependent child of an ex-serviceman, who has neither been recruited against a reserved vacancy nor is eligible to be recruited against such vacancy under these rules.'3. the precise point raised here arose before a division bench of this court in c. w. p. 3450 of 1984 (dr. gajinder kumar diwan v. state of punjab and ors. , c. w. p. no. 3450 of 1984.) decided on september 7, 1984, where, it was held that the benefit of reservation for dependents of ex-serviceman, was available only to a child of a living ex-serviceman. the reasoning in support being, 'the legislature in its wisdom has afforded the benefit not to any child-of the ex serviceman but a dependent child. the child of an ex serviceman who had died cannot be termed as a dependent child of such an ex-serviceman. further more, the phraseology used in the latter part of the proviso 'who has neither been recruited against a reserved vacancy nor is eligible to be recruited against such vacancy' is also indicative of the fact that the intention of the legislature was to confer a concession under the said proviso only to living ex-serviceman and not to the one who had died. the emphasis appeals to be more on granting the relief to ex-serviceman during his life time faced with this situation, the learned counsel submitted, an alternative argument that the non-granting of the concession to the children of deceased ex-serviceman tantamounts to discrimination and is thus, violative of the constitution of india. we, however, do not find any such discrimination. it is indeed for the legislature to grant a certain benefit or concession to a limited group or class of persons under a certain policy provided there is a reasonable classification for this pupose. as already observed, the object of enacting the proviso appears to be to confer a certain relief to the ex-serviceman himself by providing succour to his dependent family members and thus, reduce his financial burden.'4. the view expressed in dr. gajinder kumar dwarfs case (supra) did not, however, find favour with the motion bench before which the present case came up for preliminary hearing. when confronted with a similar question, in the context of a son of a deceased ex- serviceman, being denied, a certificate of being a dependent of an ex-serviceman, in order to enable him to avail of the benefits of reservation under the rules, the division bench in dr. gajinder kumar diwan's case (supra) deserved reconsideration. it being observed in this behalf, -'a bare reading of the above proviso would show that the benefit is allowed to one dependent child of an ex-serviceman. if the intention was as ruled by the bench, a different phraseology would have been used and instead of word 'one dependent child of an ex-serviceman' the words 'one child dependent of ex-serviceman' would have been used. as the provision stands the requirement is that he should be a dependent child of an ex-serviceman. whether the ex-serviceman is alive or dead, is no consideration to determine the eligibility of his child. if the child is dependent, which means is not an earning hand, he would be entitled to the benefit of the said provision. the latter words of the clause 'who has been neither recruited against such vacancy under these rules,' are also in no way negatory to the view which we propose to take. even if an ex-serviceman is not alive, the disqualification would be applicable if he in his life time has been recruited against a vacancy. moreover, there is no rational basis to make a discrimination between the child of a living ex-serviceman on the one hand and the child of a deceased ex-serviceman on the other. --' this is how this matter came to be referred to a full bench.5. it will be seen that the issue raised hinges upon the interpretation of the proviso to rule 4. the contention of mr. h. s. riar, additional advocate general, punjab being that this proviso had to be construed by giving to the words used their ordinary and natural meaning. read in this manner, it was contended, it could not but be interpreted to restrict the benefit to dependents of only living ex-serviceman and not to those who had already died. the argument being that no one could be said to be dependent of a dead person6. the primary rule of interpretation is no doubt to construe the language of a statute by giving the words used, their ordinary and natural meaning, but it is equally well settled that there is another aspect of it too, which has so aptly been expressed by judge learned hand. it is true that the words used even in their literal sense are the primary and ordinarily the most reliable source of interpreting the meaning of any writing be it a statute contract or anything else ; but it is one of the surest indices of a mature and developed jurisprudence not to make fortess out of the dictionary, but to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative behaviour is the surest guide to their meaning.7. in a similar vein, there is the statement in maxwell on the interpretation of statutes, twelfth edition, at page 228, 'where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest coatradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence' and further, 'where the main object and intention of a statute are clear, it must not be reduced to a nullity by the' draftsman unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used'.8. seen in its true and proper context, there can be no manner of doubt that the purpose and rationale for the proviso to rule 4 of the rules was to extend the benefit of reservation to the dependants of all ex-serviceman, whether deceased or living it is pertinent to note in this behalf, that the words used in the proviso are dependent- children of deceased ex-servicemen.9. patently, irrational and anamolous consequences could follow if the dependents of the deceased ex-servicemen were to be held to be excluded by the proviso to rule 4 from the benefits available thereunder. it could for instance, mean that dependants of posthumous gallantry award winner would not be entitled to those benefits while those of ex-servicemen who happened to serve on some free from danger posts and were thus alive, would be entitled to them. not only this, it would also mean that even in the case of a dependant of a 1iving ex-serviceman, the moment his ex serviceman parent dies, the benefit available to him would cease, a happening which could occur any time between his applying for a post and actually being appointed to it. we cannot, therefore but apply; here the oft-repeated rule of interpretation namely; that absudrity cannot be imputed to the legislature.10. with respect, we too cannot, thererefore, accept as correct the view expeessed in dr. gajinder kumar diwan's case (supra) that the benefit of reservation for dependants of ex-serviceman is confined only to dependants of livng ex servicemen. we are consequently hereby constrained to overrule this judgment and hold instead that the benefit of reservation under the rules extends to dependants of all ex servicemen whether living of deceased.11. keeping in view the fact that the judgment in dr. gajinder kumar diwan'scass (supra) has held the field for many years, we direct that the view now expressed, shall operate prospectively only, that is, with effect from the date of this judgment.12. in so far as the petitioner is concerned, it follows that he would clearly be entitled to the certificate of dependency as sought by him. we consequently hereby allow his writ petition and direct the district sainik welfare officer, gurdaspur to issue him a certificate of dependency under relevant rules.13. this reference is thus answered accordingly and this writ petition is accepted with costs. counsel fee rs. 1,000/-