Jarnail Singh Vs. Gurmail Singh 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. - in the written statement filed by him, various technical objections were taken, he claimed that harnam kaur was his grand-mother as well as she had given the suit land to mehar singh, according to his share. it is, thus, clear that the defendant had merely remained satisfied by pleading that his possession was within the knowledge and with no objection from the landowner, harnam kaur. 15. accordingly, 1 am satisfied that the findings recorded by the learned first appellate court do not suffer from any infirmity.viney mittal, j.1. the defendant has approached this court through the present regular second appeal. he has challenged the judgment and decree dated december 24, 1980 passed by the learned additional district judge, ferozepur whereby the appeal filed by the plaintiffs against the judgment and decree dated february 6, 1978 passed by the learned sub judge, ferozepur was allowed and consequently, the suit filed by the plaintiffs for possession was decreed.2. the plaintiffs filed a suit for possession of land measuring 27 kanals 12 marlas. it was claimed by the plaintiffs that harnam kaur wife of bagga singh was the original owner of the suit land. bagga singh had three sons, namely, parampal singh, gurmail singh and sukhminder singh. bagga singh was earlier married to mann kaur. mann kaur gave birth to a son mehar singh. defendant, jarnail singh, is son of mehar singh. harnam kaur executed a power of attorney on may 35, 1973 in favour of her grandson, parampal singh. on the basis of the said power of attorney, parampal singh sold 90 kanals 12 marlas of land including the land in dispute. the land in dispute was sold by parampal singh in favour of his two sons bhupinder singh and jaswinder singh and his two brothers gurmai! singh and sukhminder singh through a registered sale deed dated september 3, 1973 for a consideration of rs. 24,000/-. on the basis of the aforesaid sale deed, the present plaintiffs claimed that they are the owners of the suit land. they also claimed that harnam kaur had executed a registered will on july. 6, 1966 in favour of gurmail singh, sukhminder singh and parampal singh with regard to her property. the plaintiffs further claimed that taking advantage of their absence from the village, the defendant had taken illegal possession of the suit land in rabi, 1973. he was asked to vacate the possession but did not do so. accordingly, the suit for possession was filed by the plaintiffs.3. the defendant contested the suit. in the written statement filed by him, various technical objections were taken, he claimed that harnam kaur was his grand-mother as well as she had given the suit land to mehar singh, according to his share. mehar singh remained in possession of the same without paying any share of the produce to harnam kaur for the last about twenty years and after the death of mehar singh, he being a son, started cultivating the land as owner without paying anything to harnam kaur. it was alleged that sdle deed in question was illegal, void and inoperative on the rights of the defendant. the defendant claimed that he had become owner of the suit land by way of adverse possession.4. the learned trial court dismissed the suit filed by the plaintiffs. it was held that the sale deed ex.pl dated september 3, 1973 relied upon by the plaintiffs was a sham transaction, since no consideration was paid by the vendees for transfer of the land. it was held that the defendant had remained in continuous possession of the suit land, as such, had become owner of the same by way of adverse possession. the plaintiffs gave up their claim on the basis of the will, ex.p2, because of the fact that they relied upon the sale deed ex.p1.5. the plaintiffs took up the matter in appeal. the learned first appellate court reappraised the entire evidence. on such reappraisal, the learned first appellate court found that the sale deed ex.p 1 was duly proved by the plaintiffs and the same had been executed for due consideration. it was also held that harnam kaur, having died on april 20, 1975, had never challenged the aforesaid sale deed during her life time and the defendant being a stranger to the said transaction had no right or locus standi to challenge the sale deed. the plea taken by the defendant that he had become the owner of the suit land by way of adverse possession was also rejected. it was held that the revenue record produced by the defendant merely showed that he was recorded in possession of the suit land for the first time in the year 1966-67 vide jamabandi ex.d2 and in the previous jamabandi ex.dl for the year 1958-59, the land in dispute was shown to be in self-cultivation of harnam kaur. since the suit was filed in august, 1975, therefore, it was held that a period of 12 years had not elapsed from the date when jarnail singh came to occupy the land. accordingly, the findings of the trial court regarding adverse possession in favour of the defendant, were reversed. as a consequence of the aforesaid findings, the appeal was allowed and the judgment and decree of the trial court were set aside and resultantly, the suit filed by the plaintiffs was decreed for possession.the defendant has now approached court through the present regular second appeal.6. i have heard shri gaurav chopra, advocate, the learned counsel appearing for the appellant and shri s.c.khunger, advocate appearing for the respondents and with their assistance have also gone through the record of the case.7. at the outset, it may be noticed that defendant-appellant, has filed a civil misc. application no. 2631-c of 2003 for leading additional evidence. a reply to the aforesaid application has been filed by the plaintiff-respondents through cm. no. 6134-c of 2003. the defendant has sought the permission to lead additional evidence by producing the certified copies of shajra nasab of village ratta khera punjab singh wala. another civil miscellaneous application no.ll799-c of 2003 has been filed by the plaintiff-respondents also for leading additional evidence. through the aforesaid application, the plaintiffs have sought permission to produce copy of death certificate of mano alias manu kaur wife of bagga singh by way of additional evidence.8. i have heard the learned counsel for the parties with regard to the aforesaid civil miscellaneous applications. in my considered view, the applications filed by both the parties seeking permission to lead additional evidence are wholly misconceived. the evidence sought to be produced by the parties by way of additional evidence is wholly irrelevant for the controversy in question. the only relevant fact which requires to be considered in the present regular second appeal is as to whether the defendant has acquired the ownership of the suit land by way of adverse possession or not. any other fact with regard to relationship of the parties or otherwise is wholly extraneous to the said controversy. accordingly, there is no justification for allowing the parties to lead any additional evidence, at this stage.9. in this view of the matter, cm. no. 11799-c of 2003 and cm. no. 2631-c of 2003 are dismissed. cm. no. 6134-c of 2003 is merely seeking permission to file reply to cm. no. 2631-c of 2003. the reply filed by the plaintiffs through the aforesaid cm. is taken on record. the said cm is disposed of accordingly.10. coming to the merits of the controversy, the first question which would arise for consideration is as to whether the sale deed ex.pl was a legal and valid document and as to whether the said sale deed conveyed a valid title in favour of the plaintiffs.11. the learned first appellate court has rightly observed that the said sale deed was executed on september 3, 1973 by parampal singh acting as a attorney of harnam kaur. harnam kaur died on april, 20, 1975. during her life time, harnam kaur never challenged the aforesaid sale deed executed by her attorney. no grievance was ever made by her with regard to the non-receipt of the consideration. thus, when harnam kaur had never made any grievance with regard to the validity of the aforesaid sale deed, then it is definitely not open to defendant, jarnail singh, who is stranger to the said sale deed to claim that the said sale deed was without any consideration or was invalid in any other manner. as a matter of fact, no meaningful argument has been addressed by the learned counsel appearing for the defendant-appellant to show that the said sale deed suffers from any infirmity.12. faced with the aforesaid difficulty, the learned counsel for the appellant argued that the defendant was proved to be in adverse possession of the suit land, since his possession was continuous, hostile and open for a period of more than 12 years. on that basis, it has been asserted that the finding recorded by the learned first appellate court was erroneous and contrary to the record.13. i find myself unable to agree with the aforesaid contention of the learned counsel for the appellant. the learned first appellate court has duly taken into consideration the revenue record produced by the defendant. ex.d2 is jamabandi for the year 1966-67. it is in that jamabandi that jarnail singh has been recorded in possession of the suit land for the first time. even in the said jamabandi, he has been recorded as a tenant at will. in the earlier jamabandi ex.dl for the year 1958-59, the land in dispute has been shown in self cultivation of harnam kaur. the present suit has been filed on august 18, 1975. it is, thus, apparent that the possession of jarnail singh by any stretch of imagination could not be taken to have matured into ownership.14. besides the aforesaid fact, it is also apparent that the defendant in his written statement had merely stated as follows:-'7. para no. 7 of the plaint is wrong and hence denied. the answering defendant is in cultivating possession of the suit land for the last about 12 years and previous to it the father of the answering defendant was cultivating the suit land for about 10 years. neither the answering defendant, nor his father ever paid any share of produce or batai to the landowner regarding the land in dispute. the answering defendant has been cultivating the suit land continuously within the knowledge of the landowner and without any objection from her. therefore, the answering defendant has become the owner of the suit land by adverse possession.'even if the aforesaid plea of the defendant is accepted in its entirety, it is apparent that it is nowhere pleaded by him that the possession of the defendant or his father was, at any time, adverse or hostile to the owner harnam kaur or the present plaintiffs. on the other hand, the defendant had himself stated that he or his father, at any stage, had never paid any share of produce or batai to the landowner regarding the land in dispute and that the defendant had been cultivating the suit land continuously within the knowledge of the landowner and without any objection from her. it is, thus, clear that the defendant had merely remained satisfied by pleading that his possession was within the knowledge and with no objection from the landowner, harnam kaur. thus, at the most the possession of defendant could be taken to be permissive. the said pleadings do not show that the possession of the defendant or his father was, at any stage, hostile to harnam kaur or the plaintiffs.15. accordingly, 1 am satisfied that the findings recorded by the learned first appellate court do not suffer from any infirmity. nothing has been pointed out that there is any misreading of evidence or that the learned first appellate has ignored any material evidence from consideration.no question of law, much less any substantial question of law arises in the present appeal. as a result of the aforesaid discussion, the present appeal is dismissed. there shall be no order.