Harcharan Singh and anr. Vs. Smt. Savtri Devi 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. - consequently, it was found that the landlord had failed to prove that the tenants had sublet any portion to any of the respondents, as alleged, after the new tenancy was created on march 1,1975. in appeal, the appellate authority, reversed the said finding of the rent controller and came to the conclusion that subletting by the tenants after march 1, 1975, to tikka singh, respondent no. according to the learned counsel, the finding of the rent controller in this behalf was perfectly valid and the same has been set aside in appeal on surmises and conjectures the learned counsel also pointed out that the name of gurjit singh in tne voters' list for the year 1979 at the address of the demised premises was of no consequence as he was a voter entered at patiala and in case, the bogus entries made in the voters' list are not unknown. thougu the same was issued originally on december 23, 1974, yet admittedly, the ration was being drawn on the said ration card in the year 1979 as well. the landlord was in great difficulty to serve the tenants as well as the sub-tenants because they were playing hide and seek.j.v. gupta, j. 1.this is tenants' revision petition against whom ejectment application was dismissed by the trial court, but eviction order was passed in appeal.2. the landlord capt. ved parkash, sought the ejectment of his tenants harcbaran singh and surinder singh, by the ejectment application dated december 3, 19/9, from the shop cum -flat no. 32, sector 21 c, chandigarh, on the allegations that the said building was let out to the said two tenants on a monthly rent of rs. 750/- in addition to the water and electricity charges and a rent note to that effect was written the jectment was inter alia sought on the ground of subletting. it was alleged that the tenants had sublet different portions of the building to respondents nos. 3 to 7 in the ejectment application without the previous permission, in writing, of the landlord. in paragraph 4 of the ejectment application it was averred that respondents nos. 3 to 7 were in occupation of some or other portions of the building in dispute viz. respondent no 3 was in occupation of first florr and respondent no. 4 was in occupatioa of barsati floor a ad that respondents nos. 5, 6 and 7 were in occupation of the backyard on the ground floor of the building. in the written statement filed on behalf of the tenants, the said allegations were denied. it was pleaded that they were inducted as tenants on cue demised premises in the year 1966 at a monthly rent of rs. 409/-. in november, 1968, the rent was increased to rs. 500/-. in november 1971, the rent was increased to rs. 625/- per month. this increase in the rate of rent was made on the threat of eviction which the petitioner held out by service of the notice dated september 28, 1971, exhibit rw5/a. the said notice was withdrawn after the rent was increased to rs. 625/ per month. this rate of continued till the tenats again received another notice of eviction dated october 15,1974, exhibit rw5/b. consequently, the rent was again increased in march, 1975, from rs 625/- per month to rs. 750/- per month and also a fresh rent deed was executed between the parties and a new tenancy came into existence. it was denied that the premises were sublet as alleged. according to the tenants, the premises, in question, were being used strictly by them and that they were in exclusive possession thereof and no part or a portion thereof was ever sublet to any respondent. in paragraph 4 of the written statement, it was further reiterated that the entire building from the ground to the barsati floor including the back courtyard was in use and occupation of respondents no. 1 and 2 exclusively. in the replication filed on behalf of the landlord, it was admitted that the tenants were inducted in the year 1966 on a monthly rent of rs. 409/- and with their consent, the rent was enhanced as stated in the written statement. it was also admitted that a notice was served on the ground of subletting, as the tenants had sublet the premises to various tenants whose names were mentioned in the notice itself. the tenants subsequently approached the petitioner and entered into a new lease deed and got the shop evicted from the said sub tenants. the rent was also enhanced from rs. 625/- to rs 750/- per mensem.3. the main controversy between the parties before the rent controller was whether the tenants had sublet the premises after the 1st of march, 1975, when the new tenancy was created and a rent note was executed the kent controller came to the conclusion that the ejectment application prima facie appears to be another attempt on the part of the petitioner to force the respondents to increase the rent otherwise they did not have any evidence on the file that may show that on the day of the filing of the petition or from march, 1975, any portion of the building, in question, was occupied by any sub-tenant. consequently, it was found that the landlord had failed to prove that the tenants had sublet any portion to any of the respondents, as alleged, after the new tenancy was created on march 1,1975. in appeal, the appellate authority, reversed the said finding of the rent controller and came to the conclusion that subletting by the tenants after march 1, 1975, to tikka singh, respondent no. 3 and gurjit singh, respondent no 4, was amply proved on the record. the learned appellate authority also found :--'thus as per his own admission a portion of the demised premises had been let out to tikka singh prior to the service of notice ex. rw5/b. according to this tenant, the same had been got vacated when the new tenancy came into being. it is this admission by the tenant plus ration card ex. r. 1 and voters' list ex. p. 1 and p. 2 which lend weight to the oral testimony of the landlord and his brother major hardev aw 5 of course notice ex. rw5/b indicates that the landlord wanted the eviction of the tsaants from the demised premises because of alleged sub-letting to tikka singh and five others by the tenants so that tikka singh was a tenant at that time also.'in view of this finding, the eviction order was passed on november 22, 1983.4. at the time of the motion hearing, it was submitted that the alleged sub-tenant tikka singh had vacated the premises when ne v tenancy was created vide rent note dated march 1, 1975.5 the learned counsel for the petitioner submitted that the ration card of tikka singh was prepared in the year 1974 and in case he continued to draw his ration on the said ration card upto november, 1979, it was of no consequence because that does not necessarily mean that he was occupying a portion of the demised premises. the learned counsel also referred to the statement of r w. 2 virinder kumar who surveyed the premises, in dispute, for the purposes of house tax. according to his statement, argued the learned counsel, there was no other person other than the tenants occupying the premises, in dispute. thus, according to the learned counsel, the subtenancy if any, was prior to march 1, 1975 and when the rent-note was executed, the rent was enhanced and the sub-tenants had vacated the premises on or befo-e that date and, therefore, the finding by the appellate authority that tikka singh and gurjit singh still continued to occupv the premises as sub tenants after march 1,1975. was wrong and illegal and was based on the misreading of the evidence. according to the learned counsel, the finding of the rent controller in this behalf was perfectly valid and the same has been set aside in appeal on surmises and conjectures the learned counsel also pointed out that the name of gurjit singh in tne voters' list for the year 1979 at the address of the demised premises was of no consequence as he was a voter entered at patiala and in case, the bogus entries made in the voters' list are not unknown. it was further argued that the whole effort on the part of the landlord was to pressurise the tenants to increase the rent from time to time and when the rent was enhanced previously, the notice was witbdrawn thus, on the facts and circumstances of the case, the sub-tenancy, as alleged, was not proved.6. the learned counsel for the landlord-respondent submitted that the case set up by the tenants in their written statement was that they never sublet the premises according to the learned counsel, it was never the case of the tenants that the sub tenants were there prior to march 1, 1975, and that they had ceased to occupy the demised premises subsequent thereto in the absence of any specific plea, the approach of the rent controller in this behalf was wholly wrong and illegal the learned counsel further argued that the appellate authority has discussed the entire evidence in detail and has given a firm finding that the landlord had sublet a part of the primises to tikka singh and gurjit singh and that being a finding of fact, could not be interfered with in the revisional jurisdiction. the learned counsel also stated that subletting is a question of fact and, there fore, any finding to that effect is binding on this court at this stage. in support of the contention, the learned counsel relied upon ram chander v smt amat devi, 1980 (2) r.c.j. 221 and jain kumar jain v. babu ram, (1987-1) 91 p. l. r. 541 it was also contended that if once it is proved that any person is occupying the demised premises, then the burden shifts on the tenant to prove as to in what capacity he was occupying the premises. tn support of the contention, the learned counsel relied upon mrs. sushma malhotra v. prem nath, (1985-1) 87 p.l.r. 570 and naresh chand v. krishanlal. 1984 (1) r. c. j. 4437. i have heard the learned counsel for the parties and have also gone through the relevant evidence on the record.8. from the evidence on the record, it could not be successfully argued that the finding of the appellate authority was not based on any evidence. at the most, it is a case where both (he views are possible. in such a situation, the view taken by the appellate authority cannot be said to be illegal or improper in any manner. the entire evidence has been discussed in detail by the appellate authority. it has mainly relied upon the ration card issued in favour of tikka singh, the alleged sub-tenant. thougu the same was issued originally on december 23, 1974, yet admittedly, the ration was being drawn on the said ration card in the year 1979 as well. as regards gurjit sigh, the alleged sub-tenant, the appellate authority has relied upon the voters' list, exhibit p-1 issued in the year 1979, where gurjit singh along with his wife, are shown to be entered as voters on the address of the demised premises. the landlord has brought on toe record the voters' list, exhibit p. 2, dated march 7, 1975. where tikka singh, the alleged sub tenant is shown to be the voter on the address of the demissd premises. it is quite surprising that in the present case, even the tenants weie served by substituted service. the landlord was in great difficulty to serve the tenants as well as the sub-tenants because they were playing hide and seek. the mere fact that the tenants brought on the record the voters' list, relating to gurjit singh, from patiala, where he was entered as a voter, was of do help as a person could be a voter, though not legal y, at two places. on the demised premises, his name was entered in a supplementary voters' list in the year 1979, copy, exhibit p. 1. the case might have beea different if he was entered as such prior to march 1, 1975 and that entry continued later on. as a matter of fact, be was entered for the first time and that too by way of supplen entary voters' list, exhibit p. 1, in the year 1979. thus, on the said evidence it has been amply ptoved on the record that tikka singh and gurjit singh, were occupying a portion of the demised premises. not only that, the apellate authority also relied upon the statement of a. w. 5 hardev singh, brother of the landlord to come to the conclusion that the said two persons were occupying a part of the demised premises. thus, in view of tha circumstances, the finding of the appellate authority that the tenants had sublet the demised premises to tikka singh and gurjit singh, is based upon evidence and that being so, could not be interfered with in the revisional jurisdiction even if two views are possible on the said evidence.9. consequently, this revision petition fails and is dismissed with costs. however, the tenants are allowed three months' time to vacate the premises; provided all the arrears of rent, with advance rent for three months, are deposited with the rent controller within one month from today, with a further undertaking in writing, that after the expiry of the said period vacant possession will be handed over to the landlord.