Lajpat Rai Tayal Vs. Maman Ram Dalmia - 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. - 2. in revision, it is contended by learned counsel for the petitioner that the appellate court had fallen into serious error in misappropriation of evidence, who failed to take into account relevant factors that showed that a property, which had been let for residential purpose has used as a godown. learned counsel appearing for the petitioner argued that the rejection of the evidence of pw-4 only on the ground that he earlier had some transactions with petitioner's father and therefore, his evidence as witness was interested, was clearly wrong. 3. the reliance on the statement of witnesses alone where both parties have given varying versions relating to the mode of user may not be safe or appropriate.k. kannan, j.1. the petition for eviction by the landlord survives for consideration whether the tenant had unauthorisedly changed the residential building for a non-residential purpose. the rent controller granted eviction on the said ground but in appeal to the appellate authority, the decision of the rent controller was reversed and the order of the eviction was set aside.2. in revision, it is contended by learned counsel for the petitioner that the appellate court had fallen into serious error in misappropriation of evidence, who failed to take into account relevant factors that showed that a property, which had been let for residential purpose has used as a godown. while the landlord's own evidence was that the building had been let only for residential purpose, yet another witness pw-4 had referred to the fact that the property had been let out to the tenant for residential purpose and he had his own residence in the immediate vicinity. learned counsel appearing for the petitioner argued that the rejection of the evidence of pw-4 only on the ground that he earlier had some transactions with petitioner's father and therefore, his evidence as witness was interested, was clearly wrong. he would also urge that the evidence of the witness that he had a shop far away from the disputed premises was taken in isolation without adverting to his own evidence that he had his residence in the vicinity and that had given him a special advantage to speak from his personal knowledge of how the property had been originally put to use and how there had been a change of user subsequently. the appellate court also rejected the evidence of another witness pw-6 on the ground that he did not state categorically that the tenant had been using the premises only for the residential purpose and he found in his evidence a prevarication that he did not know for what purpose the property was let out to the tenant. yet another witness examined was pw-5, whose evidence was pre-received by the appellate authority as supporting the case of the tenant himself when he had stated that ever since he was an occupier of premises nearby he had known the tenant only to be using the property as a godown. elsewhere in the same evidence, he had also stated that originally the property had been rented out only for residential purpose.3. the reliance on the statement of witnesses alone where both parties have given varying versions relating to the mode of user may not be safe or appropriate. it is for this reason that the counsel for the petitioner places reliance on the tax authority ex. p-8, which was an application made by the tenant to sales tax department where he had made a declaration that 'w.e.f. 15.09.1967, i have made a godown in the residential house on first floor opposite my shop'. this statement makes clear two aspects: (i) that the property was a residential one and (ii) one room in that residential property had been used as a godown. the site plan produced by the landlord is itself not in dispute and it refers to the property as comprising of three rooms, a godown and three small rooms. if it should be seen that the tenant was contending that he was using only one room as a godown from the year 1967, as found express in his statement to the sales tax authority, admittedly, the whole of property is now being used only as a godown. it is admitted again by the tenant that he was no longer residing in the property but he was residing in his own house since the year 1972-73 and before residing in his own house he was residing in his baglawala house. otherwise too, learned counsel for the petitioner points put to the reasoning of the rent controller, which according to him, was appropriate that in the municipal assessment, it had recorded baglawala property as a shop and therefore, he, could not have resided there and the residence was only on the disputed premises initially. the evidence relating to the so-called residence of the tenant in some other property and how the matter had been dealt with by the rent controller has not been discussed at all by the appellate court. the finding of fact given by the rent controller has been set aside only be taking different view on the quality of evidence of witnesses and without adverting to the documentary evidence placed by the landlord, which was more clinching and established that the property had been put to use for a wholly residential purpose and that at some point of time, the tenant had only been using the property for his residential purpose. a non-residential building itself has been defined under section 2(d) of the haryana urban (control of rent and eviction) act, 1973, as a building used mainly for the purpose of business or trade or partly for the purpose of business and partly for the purpose of residence subject to the condition that the person, who carries on business or trade in the building resides there. the definition contains references of a proviso, which is not immediately necessary for reproduction. the residential building itself has been defined under section 2(g) as a building which is not a non-residential building. the act prohibits conversion of a residential building to non-residential building under section 11 of the act and grants the rights of eviction against a person and makes it as a ground of eviction under section 13(ii)(b) for a person, who used the building for the purpose other than for which it was leased. the statement by the tenant to the public authority that he was having a godown in a residential building constitutes an admission that it was let out only for a residential purpose and the subsequent change that he had made renders his act actionable.4. i find that the landlord has established the ground as urged by him and finding of the rent controller is restored and the order of the appellate authority is set aside.5. under the circumstances, civil eviction is allowed. there shall be, however, no directions as to costs.