Moti Lal Gaur Vs. Amrit Lal Chauhan - 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. - (4) whether the petition is bad for non-joinder of sh. in that case also, one of the objections raised was as to whether one of the co-owners of the premises can file a petition for eviction of the tenant on the ground that the premises is required for his own occupation as well as for the occupation of the members of his joint family.n.k. kapoor, j.1. this revision petition is against the order of rent controller dated 29-5-1989 whereby the petitioner's application under section 13-a of the east punjab urban rent restriction act (for short 'the act') was dismissed.2. briefly put, the petitioner filed ejectment application under section 13-a of the act against the respondent on the ground that he is the owner/landlord of the disputed premises ; that he has retired from the railway department on 18-3-1988 and requires the premises in dispute for his own occupation. the petitioner further stated that the house bearing no. 185--subjecc matter of the eviction application-was earlier owned by his father sh. piyare lal. on his death, lie, his brother bal krishan and his sister prem have inherited the property. it was further stated that presently the petitioner and his brother are in possession of one room, one store and one chobara out of house no. 185, whereas the respondent is in possession of one room, kitchen-cum-store, common v]arandah and a courtyard. the petitioner further stated that other co-owners of house no. 185, namely, his brother bal krishan and sister prem, have consented to the filing of the present petition.3. the respondent put in appearance and sought permission of the court to contest the petition which was granted by the court vide order dated 7-9-1988. by way of reply, the respondent controverted the various submissions made in the application.4. on the pleadings of the parties, following issues were framed :-(1) whether the petitioner is a specified landlord 7 opa(2) whether the tender is short and invalid opa.(3) whether the petitioner requires the premises in dispute for his personal use and occupation opa.(4) whether the petition is bad for non-joinder of sh. bal krishan and smt. prem opr.(5) whether the petitioner has got a suitable accommodation comprising in unit no. 182/13 opr(6) whether the petitioner intends to dispose of the property in dispute as alleged by the respondent if so, its effect opr.(7) relief.5. the rent controller decided issue no. 1 in favour of the petitioner holding that he is a specified landlord issue no. 2 was decided against the petitioner as the amount was tendered within tie stipulated period. issues no. 3 and 4 were decided against the petitioner. issue no. 5 was decided against the respondent. under issue no. 6, it was held that there is no merit in the contention of the respondent that the petitioner intends to dispose of the dispute premises after getting the same vacated. resultantly, the rent controller, in view of findings on issues no. 1 and 4, dismissed the eviction application.6. the first submission of the learned counsel is that the rent controller has, indeed, erred in law in non suiting the petitioner merely on the ground that his brother and sister have not been impleaded as co-landlords. according to the petitioner, even one of the landlords can file eviction application against the respondent. even otherwise, the tenant has no right to challenge the locus standi of his landlord to file the petition. elaborating, the counsel referred to the definition of landlord as contained in section 2(c) of the at which reads as under :-'2 (c) 'landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord.'7. the counsel further urged that this precise point as to whether one of the co-landlords can maintain an application for ejectment against his tenant under section 13 of the act came up for consideration before a division bench in case mathura dass v. ram piari, 1982 c.l. j. (civil) 20 which after considering various judgment came to the conclusion that even one of the many co landlords can singly maintain an application for ejectment against his tenant under the act. the learned counsel for the respondent, however, contends that it was incumbent upon the petitioner to have impleaded balkrishan and his sister pren as co-petitioner or, in any case, as proforma respondents. admittedly, both these persons are also landlords and were thus necessary party to the present petition. mere statement of balkrishan that no has no objection to the present petition or riling of an affidavit by the sister, does not remove the inherent defect in the eviction application.8. i have heard the learned counsel for the parties and perused the relevant material on record. it is proved on record that the petitioner retired as station master from the railway department on 18-3-1988 as per certificate issued by the competent authority. it is also the admitted case of the parties that the house in dispute was owned by piare lal, father of the petitioner, on whose death the same has been inherited by the petitioner, his brother and sister. thus, the sole point which needs close scrutiny is as to whether one of the landlords can maintain a petition under section 13-a of the act for getting eviction from the house in dispute. mathura das's case (supra), in fact, deals with the query put by the counsel for the respondent. the division bench judgment after referring to the various other judgments has come to the conclusion that even one of the landlords can singly maintain an application for ejectment against his tenant under the act. somewhat similar proposition came up for consideration in case reported as sri ram pasricha v. jogannath, 1977 (1) r. c. j. 494. in which their lordships of the supreme court were considering the provisions of the west bengal premises tenancy act. in that case also, one of the objections raised was as to whether one of the co-owners of the premises can file a petition for eviction of the tenant on the ground that the premises is required for his own occupation as well as for the occupation of the members of his joint family. it was held that even one of the members of the family can maintain such a petition. in the given case also, the other co-owners/co-sharers were not impleaded as party, yet the court came to the conclusion that ill the same the petitioner is one of the landlords/co-owners and can maintain such a petition without impleading the other co owners/landlords. the court observed that in our social set up a widowed sister, suddenly shipwrecked in the mid-stream of her married life, with no other help returns to parental home or to her brothers where sympathetic and affectionate shelter is readily made available to her in such a case, the additional requirement of the widowed sister and her children may furnish a reasonable requirement of the father or the brothers for the purpose of eviction of their tenant. on these premises, the court affirmed the views of the various high courts that even one of the members of the family can maintain an eviction application on the ground of personal requirement. the court in the above cited judgment further held that a co-owner is, in fact, owner of every part of the composite property alongwith others and it cannot be said that he is only a part-owner or a fractional owner of the property. as regards the objection of the respondent that other co-owners have not been impleaded as a party and so the eviction cannot be ordered in favour of the petitioner as it cannot be said that he is a specified landlord qua the whole property is also without any meaning, 'specified landlord' means a person who is entitled to receive the rent on his own account. since the co-owner is deemed to be owner in each and every part of the premises, such a person is entitled to receive the rent. merely for the reason that he is accountable to other for landlord or co-owners is no reason to conclude that such a person cannot seek eviction of his tenant in terms of section 13-a of the act. in the present case the petitioner's brother has appeared as a witness in support of the case set up by the petitioner. his sister too has filed an affidavit in this court to the effect that she has no objection if the prayer for the eviction of the respondent as made by the petitioner is granted by the court. thus, i have no hesitation in reversing the finding of the rent controller in respect of issues no. 1 and 4. since other issues have already been decided in favour of the petitioner, i accept this revision petition, set aside the order of the rent controller and order for eviction of the respondent. however, in view of the circumstances of the case, i grant three months time to the respondent to deliver the vacant possession of the premises in dispute to the petitioner subject to his paying depositing all the arrears of rent including the rent for the next three months within a period of one month from the passing of the order. parties to bear their own costs