Tejinder Singh Vs. Rajpal - 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.k. kannan, j.1. the tenant who applied for grant of leave to defend in a petition under section 13b of east punjab urban rent restriction act, 1949 was rejected in his plea and he is the aggrieved party before this court in revision.2. learned senior counsel appearing on behalf of the petitioner submits four lines of defences as available to him to merit consideration for the grant of leave. his contention is that in the face of express denial of the status of the petitioner as a non-resident indian, nothing was forthcoming from the landlord's side except his assertion that he is a non-resident indian. he points out that the rent controller has not adverted to the issue at all and even in the absence of production of a passport declaring his status as such non-resident indian, the rent controller could not have rejected the leave to defend.3. another ground, which he would urge, is that the landlord shall also have to prove the ownership of the property for a period of five years prior to the institution of the petition. the petition, according to him, lacked the details of his entitlement to be treated as the 'specified landlord' having ownership of the premises, as required under section 13b of the act. here again, the petitioner had merely referred to his right to the property with no details as to how he had obtained ownership in support of the property.4. the plea of bona fides obtained a large dimension in that the landlord had entered into compromise with the tenant only in november, 2007 where he had permitted the tenant to put the property to such use as he wished on a rent determined between the parties and the objection filed just five months after the filing of the petition betrays the lack of bona fides that the landlord required the property for his own benefit. the bona fides of the requirement was also attacked on the ground that the landlord was shown to be owner of five shops and some land situate to the same town, as evidenced by jamabandi for the year 2005-2006 and even that was not properly appreciated by the rent controller to accord to the tenant the leave to defend.5. even apart.from the contentions relating to the pleadings, an objection taken on behalf of the tenant was that the property had been let only by the petitioner's father and since the initial letting had not been done by die landlord himself, the landlord cannot stake his reliance on section 13b. to him, the answer was directly available with a decision of the hon'ble supreme court in nathi devi v. radha devi gupta : 2005(2) s.c.c. 271. yet another objection equally of a technical nature is that the petition had been filed through a power of attorney and such petition ought not to be entertained in view of the decision in basant kumar v. ramesh kumar deara 2008(2) r.c.r. (civil) 176.6. to each one of the above contentions urged, the landlord has sought to give explanations but the question is whether such explanation is such as to make it so formidable that it can throw out the defence at the threshold even without affording an opportunity to join all the points of contention by affording right to the parties to go to trial.7. as regards the claim of the landlord that he was a non-resident indian, learned counsel for the respondent had shown his address to be in delhi and there were definite averments to the effect that he was a non-resident indian. he would point out to the statement in defence, which contains no more reference to the fact that tenant did not admit the petitioner to be a landlord/non-resident indian. this bare denial, according to him, was not sufficient.8. the plea regarding the want of proof of the ownership of the building was, according to the landlord, a matter of non-issue since the landlord had averred with sufficient clarity that he was the owner of the property, which was in the possession of the tenant-since the year 1996 and therefore, it should be understood that his ownership of the property for more than a period of five years was impliedly admitted. as regards the contention of the tenant that the jamabandi made reference to the existence of other property also, he would point out to the document (annexure p-6) as making reference only to a land in the vicinity of the municipal committee and therefore, there was nothing to suggest that the landlord owned any building that disentitled him to apply for eviction in support of the property.9. learned counsel appearing for the respondent adverted to the fact that the so-called compromise between the landlord and tenant under which he was purported to have permitted the tenant to put the property in use as he wished had been brought about at the intervention of police by exercise of coercion and he was not bound by such document. according to him, the document contained intrinsic details about the fact that the tenant had made a complaint to the police about the alleged threat of dispossession at the instance of the landlord, when the police interceded to secure the compromise in the manner referred to and a tenant, who had armed himself with a document in a questionable way cannot put the same document against the landlord to deny the bona fides of the landlord. according to learned counsel for the respondent, the document was a proof of lack of bona fides of the tenant himself and it could be shown as an argument against the landlord's interest.10. a detailed consideration, one way or the other on every one of the lines of defence and the explanations given by the landlord might have an adverse effect if any opinion is expressed. suffice it to point out that the defences are not flimsy and each one of them has legal basis. a court that considers whether leave to defend shall be granted or not under section 18 of the east punjab urban rent restriction act has to only see whether the defence is such that the landlord's petition for eviction could be decided against him or that the defence is not a moonshine and it could be supported by appropriate evidence or legal propositions. on the contentions made by the tenant, it should be treated as a case that merits right to defend by the grant of leave and the court shall provide opportunity for the parties to join issues on the contentious matters and make adjudication after a full fledged trial.11. the rejection of the leave without noticing that the defences had a reasonable basis is, in my view, done without proper consideration of the relevant contentions sought to be taken in defence and the order of the rent controller is accordingly set aside and allowing the tenant the leave to defend, the tenant shall file the written statement and the court shall enter into adjudication on every one of the issue and dispose of the case as expeditiously as possible, having regard to the legislative intent that petition under section 13b is adjudicated on a fast track and a decision to be given preferably within a period of six months from the time when the statement is filed and the issues are framed.12. the civil revision it allowed in the above terms.