Gurpreet Singh Vs. Jaswinder 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. - 6. the learned counsel for the petitioner also contends that the learned lower appellate court failed to notice that it was a case of clever drafting to bring a time barred suit within limitation, therefore, the impugned order deserved to be set aside. (supra), which is relied upon by the learned counsel for the petitioner, the hon'ble delhi high court has been pleased to reiterate that it is well established law, that for consideration of application under order 7 rule 11 cpc, only the plaint and the documents filed with the plaint have to be perused.vinod k. sharma, j.c.m. no. 15027-cii of 2009allowed as prayed forc.r. no. 3582 of 20091. this revision petition is directed against the order dated 24.02.2009 passed by the learned lower appellate court accepting the appeal filed against the order of the learned trial court rejecting the plaint under order 7 rule 11 of the code of civil procedure.2. the respondent/plaintiff brought a suit for declaration claiming himself to be the owner of the property in dispute in pursuance to the purchase, on the pleadings, that the total sale consideration stood paid to the owner of the property in dispute, and possession handed over.3. the case set up was, that due to the death of the owner, the sale deed could not be registered, therefore, he is entitled to get his name entered in the registered ownership. consequently, relief of injunction was also prayed for.4. the learned trial court rejected the plaint by holding it to be barred by limitation. however, the learned lower appellate court reversed the findings on the ground that in the plaint, the relief of injunction against dispossession was also prayed. the respondent/plaintiffs pleaded that they were put in possession of the property in pursuance to the agreement to sell, under which the total sale consideration stood paid, and they were in possession. even prior to the agreement, he was in possession as tenant of the property in dispute. it was also noticed by the learned appellate court that specific pleading was raised in the plaint, that it was in the year 2004 that the petitioner herein sought to dispossess the respondent/plaintiff, thus, relief of injunction was also claimed. the learned lower appellate court held that in view of the pleadings of the parties, specially relief of injunction having been claimed and also that in view of the provisions of section 53-a of the transfer of property act, the suit could not be said to be barred by limitation, to be rejected under order 7 rule 11 of the code of civil procedure. consequently, allowed the appeal and remanded the case back to the learned trial court for decision on merits.5. the learned counsel appearing on behalf of the petitioner contends, that the impugned order of the learned lower appellate court cannot be sustained in law, as the learned lower appellate court has overlooked the fact that the mail' relief claimed by the respondent/plaintiff was that of declaration claiming himself to be owner in pursuance to the agreement to sell, which was entered into in the year 1998. it is also the contention of the learned counsel for the petitioner that the suit for declaration was to be filed within a period of three years, therefore, the learned trial court was fully justified in rejecting the plaint in view of the averments made in the plaint, specially in view of the fact that the respondent/plaintiff was a tenant in the property in dispute.6. the learned counsel for the petitioner also contends that the learned lower appellate court failed to notice that it was a case of clever drafting to bring a time barred suit within limitation, therefore, the impugned order deserved to be set aside. in support of this contention, the learned counsel for the petitioner has placed reliance on the judgment of privy council in probodh kumar das and ors. v. dantmara tea co. ltd and ors. 0043/1939 : a.i.r. 1940 privy council 1 wherein the privy council was pleased to lay down that section 53-a confers no right of action on transferee in possession under unregistered contract of sale. the reliance has also been placed on the judgment of the hon'ble supreme court in shrimant shamrao suryavanshi and anr. v. pralhad bhairoba suryavanshi (dead) by lrs. and ors. : a.i.r. 2002 supreme court 960 wherein the hon'ble supreme court was pleased to lay down that even if the limitation to bring a suit for specific performance of an agreement is barred still the unintended vendee is entitled to protect his possession under section 53-a in case he fulfils the necessary conditions. the contention of the learned counsel for the petitioner is, that though the respondent/plaintiff could defend his possession, however, this was only a right of defence and gave no cause of action to maintain the suit.7. the learned counsel for the petitioner also placed reliance on the judgment of the hon'ble delhi high court in shiv kumar gupta v. kumkum gupta and ors. 2007(5) r.c.r. (civil) 465 wherein the hon'ble delhi high court has been pleased to lay down, that the legal notice could not extend the time period for limitation, which was three years to enforce an agreement by way of suit for specific performance.8. on the basis of the judgments referred to above, the learned counsel for the petitioner contends, that the order passed by the learned lower appellate court is liable to be set aside.9. on consideration, i find no force in the contentions raised by the learned counsel for the petitioner. in the case of shiv kumar gupta v. kumkum gupta and ors. (supra), which is relied upon by the learned counsel for the petitioner, the hon'ble delhi high court has been pleased to reiterate that it is well established law, that for consideration of application under order 7 rule 11 cpc, only the plaint and the documents filed with the plaint have to be perused. once in the plaint, the respondent/plaintiff had made out a case bringing the case within limitation by claiming relief of injunction on the plea that his possession was sought to be disturbed by the petitioner, the court could not have rejected the plaint. it is a question to be adjudicated on merits as to whether the plaintiff is entitled to relief claimed, but in no case the plaint could be rejected when the reading of the plaint made out a cause of action to maintain the suit, and pleading taken on its face value, showed that case was within limitation. the pleading in the plaint can be said to be a case of clever drafting, as possession of plaintiff is not disputed.10. the learned lower appellate court was, therefore, fully justified in reversing the judgment and decree of the learned trial court.no merit.dismissed.