Tirath Ram Vs. Mohan Lal - 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. - 1. this is an appeal by a plaintiff who was unsuccessful in both the courts below. it is interesting to see that after the name of the plaintiff written with ink on the cyclostyled document, there is some erasure visible to the naked eye. he has also stated that he added the name of partna shah (sahay) on the original records as well as on the copy of the same and put his signatures. 9. the admission of the plaintiff tirath ram of the property being taken by his father as karta of a joint hindu family goes against his own case and even though the plea is not taken by the defendant, the admission of the plaintiff is the best evidence. 100 it has been held that admission, though not conclusive, is the best evidence.s.s. sudhalkar, j.1. this is an appeal by a plaintiff who was unsuccessful in both the courts below. the appellant-had filed suit no. 69 of 14.2.1977 in the court of sub judge iind class, ballabgarh contending therein that he is the owner of the house in dispute and that he had purchased this house from the government of india, ministry of rehabilitation vide sale deed dated 28.7.1961 (ex.p.1) and that by virtue of the same he was the sole owner of the property in dispute and that the defendant mohan lal (predecessor in title of the present respondents) who was his real brother had no right, title or interest in it. mohan lal was allowed to use and occupy the said portion as a licensee and that he was bound to vacate the same as and when the plaintiff wanted to vacate the same.2. the courts below had not accepted the contentions of the plaintiff because there is another document on record ex.d3 which is a certified copy of the sale deed in which along with the name of the plaintiff, the name of the father of the plaintiff is also written as a purchaser. the crux of the whole case is whether from the document annexure p/1, the name of the father of the plaintiff is removed subsequently. another aspect to be considered will be whether the change could have been effected by the authorities after the sale deed ex-p1 was issued in the name of the plaintiff alone and then to consider the alternative argument of the property being of joint hindu family.3. the case of the defendant is that parma shah who was father of the plaintiff and deceased-defendant was allowed the adjustment of the compensation claim to the extent of rs. 2810.65 against the sale consideration of the house in question and the rest of the sale consideration i.e. rs. 29.97 was paid in cash. it is averred that because of a clerical mistake the names of parma shah and the plaintiff were inserted as purchasers though in fact parma shah alone was the owner of the suit property. the other contentions are regarding gift deed being executed by parma shah in favour of the defendant-deceased.4. it was argued on behalf of the plaintiff-appellant that though the sale certificate ex.p1 was issued in the name of the plaintiff alone, the name of father of the plaintiff was subsequently got written along with his name and, therefore, his father had not acquired any right in the suit property. before proceeding further, it may be mentioned that the suit property was sold by the document executed on behalf of president of india and the amount of rs. 2810.65 was by adjustment against the compensation payable under the displaced persons (compensation and rehabilitation) act, 1954 and the property was placed as a displaced person. sub-rule (8) of rule 91 of the displaced persons (compensation and rehabilitation) rules is as under:'where any property purchased by any person under this rule and the full purchase price has been paid by him or adjusted against the compensation as provided in sub-rule (5) a deed of transfer shall be executed in the form specified in appendix xxiv or xxv, as the case may be.if the tenderer is a displaced person and has associated with himself any other displaced person having a verified claim whose net compensation is to be adjusted in whole or in part against the purchase price, the deed of transfer shall be made out jointly in the name of all such persons and shall specify the extent of interest of each in the property.'5. in this case, it has been contended by learned counsel for the respondents that by clerical mistake the name of the plaintiff alone was entered and thereafter it was amended and the name of the father of the parties i.e. plaintiff and deceased-defendant i.e. parma shah was mentioned along with the plaintiff but subsequently the plaintiff erased the name of his father from the document. it is interesting to see that after the name of the plaintiff written with ink on the cyclostyled document, there is some erasure visible to the naked eye. the document was executed on 28.7.61 and the certified copy of the same was issued on 12.7.62 i.e. much prior to the filing of the suit. moreover evidence to that effect has also been led before the trial court. the plaintiff has been examined as p.w.i. he stated in his deposition that he was allotted house no. i-h-17 and ex.p1 is the sale deed of the same. in his cross-examination, he has stated that he had purchased a house out of the share paid to him from the claim of rs. 2800/- which his father had received. if this statement was correct, then the whole of rs. 2810.65 has been a part of the consideration in addition to the cash amount of rs. 29.97. the father of the plaintiff and defendant-deceased was examined as d.w.2. he has stated that he and bhagwan are the owners of house no. 1-h-17, and that they have purchased the said house in claim. he has also stated that the plaintiff had not made any payment towards that house and that the registration, was in his name and that of the plaintiff. in cross-examination, he has stated that it is incorrect that the plaintiff has given an amount of rs. 29.81 in cash.6. d.w.4 chhabil dass is the clerk of rehabilitation department, faridabad. he has stated in his deposition that parma shah had filed an application to the effect that how the registration was sent in the name of tirath ram i.e. the plaintiff whereas the money has been adjusted in his account (parma shah), and on the basis of said application they had sent a letter in the office of sub registrar on 27.11.1961 and informed him that the registration deed had been issued in the name of tirath ram which had already been registered on 3.11.1961 and the name of parma shah had been left out gautam parkash duggal, managing officer, department of rehabilitation, faridabad was examined as d.w.5. he has stated in his deposition that on 27.11.1961 they had sent a letter to the sub-registrar, ballabgarh which is marked as ex.dw5/2, and that he came to the office of the sub-registrar, ballabgarh and that after taking permission of the sub-registrar showed the said letter and added the name of parma shah (sahay) in the records of sub-registrar on which he put his signatures. he has also stated that he added the name of partna shah (sahay) on the original records as well as on the copy of the same and put his signatures. he has also stated that ex.p1 was issued by their office and that it was written by their office and that he had written the name of parma shah in it which has been erased. tirath ram pw1 again examined on 27.3.1978 when he has stated that his father parma shah had taken the house in question from rehabilitation department in the capacity of a karta (manager) of joint hindu family and that thereafter his father effected partition amongst them, the four brothers. he has also stated that his father had admitted that whenever he would get the claim, he would give its share to all of them. he (father) purchased a plot in punjabi colony for his brother mohan lal and gave rs. 7500/- in cash to dwarka nath after selling front portion of house no. 1-h-16. his father constructed a room in house no. 1-h-16 and gave it to his third brother kidar nath. he has also stated in his cross-examination that at the time of filing of the suit, he had disclosed the fact of partition to his counsel. the story of partition is subsequently taken up in the above deposition.7. learned counsel for the appellant has argued that the appreciation of facts by the courts below is not properly made. it was argued before the lower appellate court that the application, copy of which is ex.dw5/l, was given by parma shah to the managing officer to the effect that as the claim got adjusted against sale consideration of the suit property was joint property of himself, and his sons and wife, the deed was to be executed in his favour and not in favour of the plaintiff and that a letter was written to sub registrar on 27.11.1961 by the managing officer, copy of which is ex.dw5/2, that he name of parma shah be added in the sale deed as purchaser of the suit property, the lower appellate court held that the sale deed ex.p1 was executed initially in favour of the plaintiff exclusively in respect of the house in question on 28.7.61 by the then managing officer and that it was handed over to the plaintiff, who presented it for registration in the office of the sub registrar on 3.11.1961 and an endorsement of its registration was made by sub registrar on the same day and that the contents of this sale deed were transcribed in the registration book on 11.12.1961. it was also held that earlier thereto i.e. on 22.10.1961 parma shah submitted an application to the managing officer that the sale deed has not yet been registered and his name be added in the sale deed as purchaser as he had paid the sale consideration by getting it adjusted against the compensation claim of joint hindu family. it was also held that this application was accepted. the lower appellate court of course held that it was certainly illegal on the part of the rehabilitation authorities to get the name of parma shah added in the original sale deed through a clerk after the sale deed had been registered and for this reason the addition of the name of parma shah in the registration record of the sale deed as joint purchaser of the suit property is absolutely of no legal effect, and that if at all there was any error or omission, the authorities were supposed to execute a fresh deed. however, the lower appellate court further observed that even on the assumption that the sale deed is in favour of the plaintiff to the exclusion of parma shah, the plaintiff cannot be held to be exclusive owner of the suit property. it is also held that the plaintiff/defendant and also parma shah have stated that they constituted joint hindu family and the claim submitted by parma shah to rehabilitation authorities was in respect of the joint hindu family. the lower appellate court has also held that the plaintiff has himself admitted that he did not make the payment of even a single paisa towards sale consideration of the suit property and that the entire sale consideration was paid by parma shah. it was also observed by the lower appellate court that no order of allotment of the suit property in the name of the plaintiff has been placed on the file or has otherwise established and that it is still a mystery as to how the sale deed ex.p1 happened to be executed in the name of the plaintiff when the entire sale consideration was paid by his father-shri parma shah.8. learned counsel for the appellant has relied on the judgments of saddik mahomed shah v. mt. saran and ors., a.i.r. 1930 privy council 57(1) and bhagat singh and ors. v. jaswant singh, a.i.r. 1966 s.c. 1861. in both these cases it was held that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. as against this, the fact is that plaintiff tirath ram in his subsequent deposition dated 27.3.1978 has stated that his father parma shah had taken this house from rehabilitation department in the capacity as a karta of the joint hindu family. thereafter he goes to say that his father effected partition.9. the admission of the plaintiff tirath ram of the property being taken by his father as karta of a joint hindu family goes against his own case and even though the plea is not taken by the defendant, the admission of the plaintiff is the best evidence. in narayan bhagwantrao gosavi balajiwale v. gopal vinayak gosavi and ors., a.i.r. 1960 s.c. 100 it has been held that admission, though not conclusive, is the best evidence. this admission made by tirath ram is not rebutted except by saying that subsequently there was a partition, which is not proved. therefore, having made an admission to the effect mentioned above, the contention that no evidence can be looked into on the contention which is never pleaded, cannot come to the help of the appellant. in view of this position also the variance in both the documents ex.pl and ex.d3 assumes importance. the finding of the courts below that parma shah was allottee as a displaced person cannot be over looked. it is to be seen that department of rehabilitation working on behalf of president of india was the vendor and if there was a mistake in the document executed, the vendor could apply for amendment of the mistake. the fact remains that document ex.p1 is with erasure and courts would be slow in such cases where the parties produce important documents with erasure made therein. in the light of these facts, the contention regarding the plea of property being of the joint family not taken has to be considered. the lower appellate court has dealt with this matter. the lower appellate court has held that the defendant did not plead that parma shah was not the exclusive owner of the suit property and that from the evidence it emerges that the joint hindu family of which parma shah is the head is owner of the suit property. if from the evidence as it is, it is found that the plaintiffs say is not correct and that the nature of the property as being of the joint emerges, the courts will be slow in passing decree on the document which appears to be forged. leaving aside the question as to whether the name of parma shah could have been erased subsequent to the registration, the removal of the name from the document speaks volume against the plaintiff. the party which comes to the court has to come with clean hands. therefore, when the plaintiff is not coming with clean hand and the fact shows that the consideration was paid from the compensation to parma shah a displaced person, the fact remains that the property did not belong to the plaintiff. moreover the department of rehabilitation committed mistake and the document, according to the lower appellate court, instead of being executed again, was corrected. this mistake cannot prejudice the rights of the parties because it was a mistake of the rehabilitation department to get the document issued in the name of a person to whom the compensation was not given.10. in view of the above, this appeal is without merit and is hereby dismissed.