Avtar Singh Vs. Smt. Rajwanti and anr. - Court Judgment

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- 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 case is advanced suo motu and with consent of both parties, the main as well as the application are disposed of. the right to recover any payment in excess itself cannot be defeated merely by reference to section 7, if such a right is otherwise within the time as available under the provisions of limitation act.k. kannan, j.1. the main case in c.r. no. 951 of 2009 is posted to 20.07.2j009.the case is advanced suo motu and with consent of both parties, the main as well as the application are disposed of.2. the application cm. no. 7247-cii of 2009 is for grant of stay of the proceedings and in the alternative for preponement of the date of hearing. having regard to the fact that the case still has been directed to be preponed and the case is being decided, the application for stay is dismissed as unnecessary.3. the revision is against the order dismissing an application for amendment moved by the tenant for making counter-claim to the statement already filed. the counter-claim was purported to be for recovery of the amount alleged to have been paid in excess by the tenant to the landlord. the rent controller dismissed it relying on the provision in section 7 of the haryana urban (control of rent and eviction) act stating that such a right must be exercised within six months and that further the application itself was belated.4. learned counsel for the petitioner while adverting to the reasoning points out that the period of six months must be understood as a time, which if invoked by the tenant would enable him to seek for adjustment against the future accruals of rent. the right to recover any payment in excess itself cannot be defeated merely by reference to section 7, if such a right is otherwise within the time as available under the provisions of limitation act.5. learned counsel for the respondent has another objection to place while supporting the ultimate decision of the rent controller. according to him, an application for counter-claim, which is resorted to by invoking order 8 rule 6-a shall be filed at or after filing the suit but before filing the written statement in defence and relies on the decision of hon'ble supreme court in bollepanda p. poonacha and anr. v. km madapa : a.i.r. 2008 s.c. 2003 : (2008) 13 s.c.c. 179. in this case, the claim to refund by the tenant is for a period between 01.07.2004 to 01.12.2006, the house tax and the interest, which were realized from the tenant to which, according to the tenant, he was not liable to pay. the statement had been filed on 08.05.2007 but the application for amendment of the statement by way of counter-claim was made subsequently. evidently, the cause of action for the counter-claim had arisen even at the time when the statement was filed on 08.05.2007 and hence as per the law as laid down by the hon'ble supreme court, an amendment by way of counter-claim was not maintainable.6. it is admitted by both the counsel that evidence of the landlord has been concluded and the tenant's evidence is in progress. notwithstanding the dismissal of the application for amendment, the rent controller shall still consider at the final disposition the issue relating .to the quantum of rent that is payable' and if there exists any excess payment as contended by the tenant, the rent controller shall consider passing appropriate orders in respect of such excess sum; if such a contention by the tenant is not true, the other legal consequences as permissible by law would follow.7. the revisior petition is disposed of in the above terms.