Smt. Manjit Kaur and anr. Vs. Shri Sat Pal 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 will dispose of f. a.o. no. 783, 784 and 791 of 1987. all these appeals are directed against the award of the motor accidents claims tribunal whereby a claim petitions filed by the claimants were partly allowed.2. in brief, the facts are that car bearing registration no. cha.-2631 driven by ram lok belonging to punjab state university text book board, punjab, mohali, met with an accident and as a result thereof ram lok driver, kapoor singh ghuman and ramesh puri who were travelling in the car, died. widow of ram lok, namely, angrez kaur, three minor daughters, namely, baljit kaur, paramjit kaur and jaswinder kaur and two minor sons, namely, sikramjit singh, jaspal singh, father of the deceased, namely baru ram and mother dyal kaur, filed claim petition claiming compensation on account of the death of ram lok. similarly, manjit kaur widow of kapoor singh ghuman, rammik singh ghuman, son and two daughters, narinderjit kaur, filed claim petition claiming compensation on account of the death of kapoor singh ghuman while prem lata puri widow of ramesh puri, vipan puri, minor son and sonia puri, minor daughter and sudershan wati, mother preferred yet another claim petition claiming compensation on account of the death of ramesh puri.3. all the three claim petitions were decided by the motor accidents claims tribunal. tn the case of ram lok deceased claimants were held entitled to get compensation of rs. 73,000/-. out of this amount, a sum of rs. 5,000/- each was to go to the old parents of the victim, ram lok whereas a sum of rs. 10,000/- each was ordered to be paid to three minor daughters and two minor sons and the remaining amount of rs. 13,000/- was to go to the widow of the deceased i. e. angrez kaur4. in the case of kapoor singh ghuman deceased, total amount of rs. 1,11,000/-was awarded by the tribunal. out of this amount, a sum of rs. 51,000/- was to go to the widow of the deceased, manjit kaur and the balance amount of rs, 60,000/- was ordered to be shared equally by son, ramnik singh ghuman and two daughters, narinderjit kaur and swaraj pinder kaur.5. in the case of ramesh puri deceased, claimants were awarded rs. 1,00,000/-. out of this amount, a sum of rs. 10,000/- was ordered to be paid to sudershan wati, mother of the deceased while the remaining amount of rs. 90,000/- was ordered to be shared equally by the widow and children of the deceased.6. f. a. o. no. 783 has been filed by widow and son of kapoor singh ghuman while f. a. o. no. 784 of 198/ has been preferred by widow, minor daughters, minor sons, father and mother of deceased ram rok. f. a. o. no. 791 of 1987 has been filed by widow, minor son, minor daughter and mother of ramesh puri deceased. in all these appeals, the claim is with regard to the enhancement of compensation.7. so far as f. a. o. no. 784 is concerned, i find that ram lok deceased was 31(sic) years old at the time of his death. by profession, he was a driver it has come on the record that at the time of his death, he was getting a pay of rs. 900/- per month apart from overtime and daily allowances in this salary, he was maintaining his widow, two minor sons, three minor daughters. taking into consideration that apart from salary, he was also earning by doing over-time and daily allowances and thus he must be contributing not less than rs. 700/- per month for his family. therefore, the dependency of the children can be safely calculated at rs. 9,400/- per year. keeping in view that he was 31(sic) years of age at the time of his death, a multiplier of 18 can be applied in his case. tolal compensation thus comes to rs. 1.51,200/- and rounding it off, the same comes to rs. 1 50,000/-. the tribunal awarded compensation of rs. 73,000/- to the claimants in this case therefore, after on hancement of the compensation, the amount now payable to the claimants comes to rs. 77,000/-. out of this, a sum of rs. 15,000/- each shall be paid to the three minor daughters whereas a sum of rs. 10,000/- each shall go to the two minor sons and balance amount of rs. 12,000/- shall go to angrez kaur who shall also be entitled to interest at the rate of 12 percent per annum on the entire enhanced compensation. the amount of enhanced compensation shall be deposited in the individual names of the minors in f. d. r in some nationalised bank of the choice of the claimants. the amount so deposited in the names of the minors shall become payable to them on their attaining majority. in case, the amount now awarded to the minors and lying deposited in f. d. rs. as aforesaid, is required for their benefit and welfare before they attain majority, it shall be open to the mother to make an application to this court for withdrawing the same and if such a prayer is made, the same shall be considered by this court.8. so far f. a. o. 783 of 1987 is concerned, kapoor singh ghuman, deceased was 58(sic) years old when he died in the accident. he had already retired as director from the language department o punjab government. at ths time of his death, he was under re-emloyment of the department and was getting consolidated salary of rs. 2,937/- tribunal found that he must be contributing rs. 2,000/- towards hss family. for two years during the period he was to remain in the re-employment of the department, it would come to rs. 48,000/- and for the remaining period, dependency was determined at rs. 6,00/- per year and multiplier of 10 was applied and thus a total sum of rs. 1,11,000/- was awarded as compensation to his heirs. keeping in view the fact that the deceased was re-employed as a director by the language department of punjab government on a consolidated salary of rs. 2,937/-, the loss of income to the family can safely beheld to be rs. 700/- per month which he could have contributed for the upkeep of his family even after his retirement. he was 58(sic) years of age and thus a multiplier of 10 can be applied in his case. thus, total compensation to be awarded in this case would come to rs. 1,32,000/- and rounding it off, the same comes to rs. 1,30,000/-. the tribunal awarded a sum of rs. 1,11,000- after enhancement, what is now payable to his heirs is rs. 19,000/- out of this, rs. 9,000/- shall be paid to his widow, manjit kaur and the remaining rs. 10,000/- together with interest on the entire enhanced amount of compensation shall go to his son ramnik singh ghuman.9. as regards f. a. o. no. 791 of 1987, ramesh puri deceased was employed as a manager, punjab film and news corporation and was drawing a salary of rs. 1,000/- per month at the time of the accident tribunal found that he must be contributing not less than rs. 600/- per month for his family. since he was 36(sic) years of age at the time of his death, multiplier of 16 was applied in his case. therefore, after applying multiplier of 16, the total amount of compensation awarded worked out to rs. 1 00,00/-. to my mind, he must be contributing not less than rs. 700/- per month for his family and, therefore, the award of the tribunal is liable to be modified. considering his age. i find that multiplier of 16 is justified. thus, i award a sum of rs. 1,35,000/- to the claimants in this case. tribunal awarded rs. 1,00,000/- and, therefore, what is now payable to the claimants to rs. 35,000/-. out of this amount a sum of rs. 10,000/- each would go to the children and rs. 15,000/- alongwith interest on the entire enhanced amount shall be paid to the widow of the deceased ramesh puri.10. in all the claim petitions, tribunal held that the liability of the insurance company was restricted to rs. 1,50,000/- and in appeal compensation has not been awarded more than the statutory limit and, therefore, the insurance company shall pay the amount with interest at the rate of 12(sic) per cent per annum on the enhanced amount over and above the amount now enhanced. there shall be no costs.