Shonka Singh Vs. Financial Commissioner (Appeal)-ii 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. - tehsildar, garhshankar recommended the name of the petitioner with which sub divisional magistrate also agreed collector, however, came to the conclusion that respondent no.ranjit singh, j.1. this order will dispose of two petitions i.e. civil writ petition nos. 12908 and 12014 of 2007. the facts are being taken from civil writ petition no. 12014 of 2007.2. at the very outset, it may be noticed that this writ petition was dismissed by division bench of this court on 19.2.2008. subsequently, it was pointed out that the order upheld while dismissing the writ petition was also under challenge in civil writ petition no. 12908 of 2007. appointment of mohinder singh lambardar stood affirmed by dismissal of the present writ petition. in order to give a fair chance to petitioner amarjit kaur in c.w.p. no. 12908 of2007, the order passed in this writ petition of shonka singh's was re-called on 7.4.2008 and both the writ petitions were set down for hearing together. that is how, they are now taken up for hearing.3. on death of sucha singh, lambardar of village painsara process to appoint new lambardar was initiated. tehsildar, garhshankar recommended the name of the petitioner with which sub divisional magistrate also agreed collector, however, came to the conclusion that respondent no. 4, mohinder singh was more suitable for the post of lambardar and appointed him as such. appeal filed against this order was dismissed and so was the fate of the revision before the financial commissioner. the petitioners in the respective cases have thus filed these two separate writ petitions to impugn the order passed by the financial commissioner etc.4. mr. rahul sharma, counsel for the petitioner in c.w.p. no. 12014 has drawn my attention to the order passed by the collector and the reasons for which petitioner shonka singh was non-suited for the appointment of lambardar. the collector declined appointment of shonka singh only on the ground that he was alleged to be in possession of shamlat land. joga singh was ignored as he was working as a lecturer in b.ed. college. counsel for the petitioner would say that the petitioner, shonka singh is not in any illegal possession of shamlat land and this fact was wrongly noted and the order passed by the collector declining appointment to shonka singh. the counsel has drawn my attention to the ground of appeal filed by shonka singh where it is specifically pleaded that he had filed an application on 22.7.2005 to tehsildar, garhshankar to verify if any encroachment of shamlat land was done by shonka singh. the tehsildar reported back that no encroachment was found on the part of shonka singh. this report was produced, alongwith written argument, before the appellate authority. still the appeal filed by the petitioner was dismissed by the commissioner without considering this fact. the financial commissioner also did not take this report into consideration. if it is a fact that the petitioner has not encroached any shamlat land, which was the sole reason to ignore him, the order passed by the collector without verifying this fact can be, termed as unfair or perverse. rather on the other hand, counsel for the petitioner would point out that there was specific allegation made against the respondent, who is appointed as lambardar on the ground that he was fined rs. 12,000/- for smuggling gold. counsel for respondent no. 4, however, would point out that it was not a case of smuggling but respondent no. 4, was fined only for bringing gold for his personal use which was found to be more than authorized. it could not be disputed before me that the petitioner has not done any encroachment. it can thus be said that the reasons which weighed with the collector to deny appointment of shonka singh, petitioner are not made out. similarly the aspect of fine awarded to respondent was also required to be taken into consideration while considering the appointment of respondent no. 4. from this position that emerges from the record, the impugned orders passed by the collector, commissioner and the financial commissioner cannot be sustained and are set aside. the case is remanded back to the collector to re-consider the merits on the basis of material now available on record and pass an order afresh in accordance with law.parties through their counsel are directed to appear before the collector on 15.4.2009.