Smt. Maina Devi and anr. Vs. Subhash Kohli 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.v.k. jhanji, j.1. this is landlord's revision directed against the order of the appellate authority, who reversed the order of the rent controller vide which the tenant was ordered to be ejected on the ground of sub letting.2. the petitioner in his ejectment petition claimed ejectment of the respondents on the ground that respondents no. 1 to 3 have sublet/ tiansferred their tenancy rights in favour of respondents no. 4 and 5 without the knowledge of the petitioner in writing.3. the petition was contested by the respondents no. 1 and 4 who in their written statement denied that respondents no. 1 to 3 have sub-let the premises to respondents no. 4 and 5. they rather stated that previously shri banwari lal, father of respondent no. 1 to 3 had been doing business in the shop in question as partner with respondent no. 4 under a regular partnership deed and after the death of banwari lal, business of partnership was continued by respondents no. 1 and 4 in the same shop under a partnership-deed dated 29th of december, 1977. they further stated that respondent no. 5 has nothing to do with the shop in dispute or the business co ducted therein. the ejectment of the tenants was also sought on the ground that respondents no. 1 to 3 ceased to occupy the premises for a continuous period of four months.4. the rent controller ordered ejectment after finding that the partnership deed set up by the respondents is a sham transaction, created to cover the act of subletting. however, the finding with regard to cease to occupy the premises was returned in favour of the respondents. on appeal by the tenants, the finding of the rent controller on the ground of sub letting was set aside and consequently, the ejectment petition of the landlord was dismissed. the landlord has now impugned the order of the appellate authority in this revision petition.5. mr. ajay mittal, advocate, learned counsel for the landlord contended that respondent no. 4 is in exclusive possession of the tenanted premises and the alleged partnership deed is a sham transaction and is only a camouflage. in support of his arguments, he placed reliance upon judgments of this court in ramji lal alias ramji dass and anr. v. smt. naurati devi, (1990-2) 98 p. l. p. 400. basant kaur and ors. v. shanti devi and ors., (1991-1) 99 p. l.r. 115 and hazara lal v. lachhmi chand, (1991-2) 100 p. l. r. 85.6. on the other hand, ms alka sarin, advocate, counsel for the tenants has defended the order of the appellate authority by placing reliance upon decision of the supreme court in helper girdharhhai v. saiyed mohmad mirasaheb kadri, a. i. r. 1987 s. c. 1782.7. the only question involved in the present revision petition is whether there is a genuine partnership between respondents no. 1 and 4 or the same is a sham transaction, created to cover the act of subletting. in order to determine this, the court has to examine all the incidents of relationship between the parties as evident from the partnership-deed itself, from surrounding circumstances at the time when the partnership was entered into. in order to ascertain whether the parties have formed a valid, legal and genuine partnership, the reai intention of the contracting parties appearing from the whole transaction is also to be ascertained. in a given case, some persons may unite and say that they are partners with a view to circumvent the rent laws, while in the actual sense, the said partnerships may be fictitious. the supreme court in helper girdharbhai's case (supra) while discussing the essentials of partnership, considered the scope of sections 4 and 6 of the indian partnership act. 1932 (hereinafter referred to as 'the act') and held as under :--'in order to establish partnership :(1) there must be an agreement entered into by all parties concerned.(2) the agreement must be to share profits of business and(3) the business must be carried on by all or any of the persons concerned acting for all.'the supreme court further approved the decision of gujarat high court in mehta jagjivan vane chand v. doshi vane chand harakh chand, a. i. r. 1972 guj 6. wherein it was held 'that the mere fact that tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assignment or subletting in favour of the partnership firm entitling a landlord to recover possession.'8. considering the facts of the present case in the light of aforesaid principles, i am of the view that respondents no. 1 and 4 have successfully proved on record that partnership between them is not a camouflage or a sham transaction, but is a genuine partnership. counsel for the petitioner has not seriously disputed the partnership between banwari lal and respondent no. 4. banwari lai who took the premises on rent. entered into partnership with respondent no. 4 on ist of may, 1977. the partnership-deed as executed between them has been placed on record as exhibit r-1. it gives reasons as to why banwari lal entered into partnership with respondent no. 4. it has been recited therein that he was finding it difficult to carry on the business on account of his ill health and also due to paucity of funds. both of them agreed to share profit and loss to the extent of 35:65. banwari lal died on 26.6 1977. thereafter, on 29.12.1977, respondent no. 1, who is one of the sons/heirs of banwari lal, executed a partnership-deed with respondent no. 4. in the partnership deed dated 29.12.1977. exhibit r-2, it has been mentioned that father of respondent no. 1 was earlier carrying on the business in the partnership with respondent no. 4 and on his death, the business of erstwhile partnership was continued by respondents no. 1 and 4 on the same terms and conditions. according to the terms of the partnership respondents no. 1 and 4 agreed to share profit and loss to the extent of 35:65. by other clauses of the agreement, it was agreed upon that the entire business will be looked after by respondent no. 4 as respondent no. 1 had no experience about the work of business. the partnership was to be continued under the name and style of 'chhabra disposal store'. exhibit r-2 further shows that respondent no. 1 at the time of execution of partnership-deed, was resident of rohtak whereas respondent no. 4 was the resident of ambala cantt where the tenanted premises are situated. in order to prove that it was an effective partnership and not a camouflage, as alleged by the petitioner respondents no. 1 and 4 have proved on record exhibit r-3 trading account for the year 1977-78, balance-sheet for the year 1977-78. and exhibit r-4 trading account for the year 1978-79, and balance-sheet for the year 1978-79. in exhibit r-3, in the column of capital account, investment of respondent no. 4 is shown to be rs. 9845-40, whereas investment of banwari lal is shown to be rs. 1880-35 p. in exhibit r-4, in the capital account of respondent no. 1, share of his father was transferred to his account and after adding the net profits of rs. 1657-05 p. a sum of rs. 3537-40 p is shown in the capital account of respondent no. 1. in the capital account of respondent no. 4, the last balance coincides with the amount shown in the balance-sheet for the year 1977-78 (exhibit r-3). his share of net profit is shown to be rs. 3077-80 p, and after withdrawal of rs. 3536-00 p, the total balance is reflected as rs. 9396-78 p. it is thus, apparent that the shop was taken on rent by banwari lal in his individual capacity. during his life-time, he entered into a partnership with respondent no. 4. on his death, business was being carried on by one of his sons, who was his legal heir, with respondent no. 4. the fact that, respondent no. 1 entered into partnership and agreed to share profit and loss only to the extent of 35:65; he shifted to rohtak, and the account books are to be maintained by respondent no. 4, does not make the partnership a bogus one. to my mind, it is a case of contisuing of earlier partnership and for that reasons, no fresh investment was made by respondent no. 1. the other circumstance that respondent no. 1 is not residing at ambala cantt. where the tenanted premises are situated, but has shifted to rohtak, is also not enough to conclude that respondent no. 1 has transferred his rights in the tenanted premises to respondent no. 4 in this case, sub-letting cannot be inferred because respondent no. 1 is not only sharing profit and loss to the extent of 35:65, but is also having control over the business. the judgments cited by the learned counsel for the petitioners are not at all applicable to the facts of the present case as the same were decided on the basis of facts and circumstances of each case.as a result thereof, the revision petition is dismissed. however, the parties are left to bear their own costs.