Sarwan Singh Vs. Ranjit 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. - through his land for the supply of electricity to the tube well of respondent no. 3. the suit as well as the application were contested.n.c. jain, j.1. the petitioner filed a civil suit for restraining the sub-divisional officer, respondent no. 4 from taking the electric connection to electric motor of respondents no. 1, to 3 and from installing poles and stretching the wire through his land comprised in khasra nos. 12/13 and 10/15 measuring 8 kanals situated in village dharamgarh.2. it is the case of the petitioner that respondent no. 4 could not instal pipe line etc. through his land for the supply of electricity to the tube well of respondent no. 1 to 3 along with the suit, an application for ad-interim injunction was filed.3. the suit as well as the application were contested. the courts, below declined the interim injunction thus giving rise to the filing of the present revision petition.4. it has been argued by the counsel for the petitioner that the authorities acting under the electricity (supply) act, 1948 (for short the act') are bound to sanction and publish the scheme before installing the pipe line etc. in the land of an individual. when the aforesaid argument was raised on the last date of hearing, i vide my order of july 7, 1992, adjourned the case for today for providing an opportunity to the counsel for respondent no. 4 to produce before this court the records of the case showing the publication of the scheme as required by section 29 of the act. mr. r. l. sharma, learned counsel appealing. ,for .respondent no. 4, was not in a position to submit that any publication was done. the petitioner's counsel has drawn the pointed attention of .his court to the. provisions of section 29 of 'the act. on the other 'hand, he has argued that since the scheme dealt with installation of large number tube wells, it must have been published.5. after hearing the learned counsel for the parties, i am of the view that this revision petition deserves to be allowed. section 29 of the act envisages not only the sanctioning of the scheme but also the publication of the scheme in the official gazette and in such local newspaper as the authorities consider it . necessary, i am further of the view that prima facie the action of respondent no. 4 is hit by section 29 of the act which appears to be mandatory in nature. the basic object of publishing the scheme by public notice is that persons who are likely to be affected may give representation and the authorities after considering the representation may make up their mind regarding the installing of pole lines etc. elsewhere by using the land of another licensee if there is force in the representation. until .and unless the schema is published such an object cannot be achieved.6. for the reasons recorded above, the revision petition is allowed and the order of the courts below are quashed. ad-interim injunction is issued restraining respondent no. 4 from taking the pipe lines and installing the poles in the land of the petitioner. however, nothing observed herein would mean expression of any opinion on the merits of the case, if the contest is made on the aforementioned point and the respondents are able to show that publication was made the court would decide the case after taking the factual position into consideration the trial court is directed to dispose of the main suit within a period of six months from today.7. the parties through their counsel are directed to appear before thermal court on 23rd july, 1992.