Surjit Singh Vs. Sh. Gian Singh Gandhi - 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 present case, a valid order of eviction has been passed by the rent controller, which has been affirmed in revision as well.n.k. kapoor, j.1. this revision petition is against the order of the executing court dated 25 3-1991 whereby the objections filed by the judgment debtor have been dismissed summarily.2. briefly put, gian singh-specified landlord of the demised premises-filed an ejectment application against tenant surjit singh- judgment debtor-which was allowed by the rent controller vide order dated 17-7 1989. surjit singh judgment debtor-petitioner filed revision no. 2636 of 1989 before the high court which too was dismissed on 26-7-j989. on 21-9 1989 gian singh decree holder filed the execution application pursuance to the not issued to the judgment-debtor, the judgment-debtor raised a number of objections mainly contending that he has purchased the suit property from ram singh-brother of surjit singh on 9-1-199 and this way gian singh decree holder is left with no right or title in the suit property. decree-holder, on the other hand, submitted that sale deed dated 9 1-1991 was sham and bogus document and the same does not in any manner effect the right of the decree-holder to execute the decree in addition thereto, the decree holder urged that judgment debtor has already filed a suit on 4-12-1989 seeking permanent injunction against the decree-holder. however, in this suit judgment-debtor's prayer for interim injunction was declined by the court the executing court found no merit in any of the objections raised by the judgment-debtor and so dismissed the same vide order dated 25-3-1991.3. before me learned counsel for the petitioner has challenged the order of the executing court on the ground that the various objections raised by him could not have been dismissed by the executing court summarily. he further urged that in view of the specific averments made by the judgment-debtor that there has been a family partition and as per the said family partition, the suit property fell to the share of ram singh and his sister swarn kaur and kulwant kaur who have sold the same to the petitioner vide sale deed dated 9-1-1991 could not be brushed aside only on the ground that the executing court cannot go behind the decree. he further urged that the court/ executing court is to keep in mind the subsequent events/supervening circumstances and mould the relief in the changed circumstances. the counsel relied upon madan lal v. harkishan lal, (1966) 68 p. l. r. d. 14.; zarina begum v. faquir hussain, 1990 p. l. j. 289.; ajaib singh v. saon singh, (1991-2) 100 p. l. r. 318 and charanjit singh v. manmohan singh, (1989-1) 95 p. l. r. 4944. learned counsel for the respondent, however, on the other hand, has laid much emphasis upon the order of the rent controller dated 17-7-1989 and the dismissal of the revision petition by this court vide order dated 26-7-1989 and thus, contended that in view of this accepted position that the judgment debtor has admitted the decree holder to be his landlord, the decree-holder has every right to seek execution of the duly passed order of the court, fn addition to this, the counsel further contended that the sale-deed in favour of the judgment-debtor is a forged document as rim singh or other vendees had no right or title in the suit property. in any case, the matter sought to be adjudged between the parties cannot be subject matter of any execution application, and perhaps for this reason, the judgment debtor before raising even the objections in, the executing court had already filed a civil suit on 4-12-1989-copy of which was placed before the executing court. on these premises, the learned counsel for the respondent urged that revision-petition is wholly without merit and the same be dismissed.5. i have heard the learned counsel for the parties and perused the record.6. it is the admitted position between the parties that gian singh-a specified landlord filed an application for eviction of his tenant-the petitioner -before a rent controller and order of eviction was passed on '7-7-1989 the revision petition filed against the order of the trial court was dismissed on merit on 26 7-1990.7. the judgments cited by the counsel for the petitioner have in fast no applicability on the facts of the present case. in madan lal's case(1966) 68 p. l. r. d. 14, landlord sold the premises after filing of application and so the court came to the conclusion that he ceases to be the landlord. in the present case, a valid order of eviction has been passed by the rent controller, which has been affirmed in revision as well. this way, this authority does not help the stand now set up by the petitioner. similarly, the observation of the court in zan'na begum v. faquir hussain, 1990 p. l. j. 289., that 'supervening facts which come into being during pendency of the litigation can be taken into consideration while deciding the matter' has hardly any application. in ajaib singh's case (supra) the court observed as under : -'the appellate court can take notice of subsequent events to shorten litigation and for doing substantial justice to the parties, because by taking these events into consideration, the original relief claimed in the suit has become inappropriate.'8. last submission of the learned counsel for the petitioner is to the effect that it was incumbent upon the executing court to frame issues and as such, has no jurisdiction to summarily dismiss the objection raised with regard to the execution of the decree. for this the learned counsel relied upon the judgment reported as charanjit singh v. manmohan singh4. in this case a decree passed against m/s. shivalik savings and general investment limited was being executed, when objections were raised against the attachment of the house alleging that the house was owned by both of them who were husband and wife and they had nothing to do with the money decree passed against m/s. shivalik savings & general investment limited. on these facts, it was held that the executing court could not decide the matter without framing issues and allowing the parties to lead evidence. however, in the present case, there is a valid order of eviction passed against the petitioner who on his own has admitted the respondent to be his landlord. the matter attained finality with the dismissal of the revision-petition by this court on 26-7-1990. the present attempt by way of setting up of the sale-deed is merely to frustrate a valid decree passed against the judgment debtor. in any case, the objections raised are beyond the purview of the executing court and can be settled by a civil court in a regular trial, for which, the petitioner has already filed a suit.9. accordingly, i find no merit in this revision-petition and dismiss the same. the parties to appear before the executing court on 15 9-1992.