Nirmal Singh Vs. Kuldip Raj - 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. - ejectment was sought on the ground that he has failed to pay the arrears of rent, w. f 1-6-1982 to 28-2-1983, as well as on the ground that the room in occupation of the respondent is required for use and occupation by the family members of the petitioner. the appeal as well as the cross objections were dismissed and the finding of the rent controller on these counts was affirmed. he failed to examine any person from the office of the municipal corporation to prove that the area in which the building is situated is residential one or there is any sanctioned scheme either under the punjab municipal law or under the punjab town improvement act, to show that the building could not be used for any other purpose except residential. r-1, clearly proves that the area in which the building is situated, is a commercial area where the ground floor is being used for commercial purpose and the first floor is being used for the purpose of residence. both the authorities below on the appreciation of documentary evidence as well as on the basis of statement of witnesses examined in the case, have come to a firm finding of fact that the shop in dispute was let out to the respondent at the rate of rs.v.k. jhanji, j.1. this is landlord's revision directed against the orders of the authorities below dismissing bis petition for ejectment on the ground of personal necessity. according to the petitioner, the wife of the petitioner, smt. kulwant kaur, is stated to be the owner of house no. 5-c, fairland colony, fatehgarh road, amritsar. the building is alleged to be residential one and out of this, one room was rented out to the respondent at a rent of rs. 500/-per month. ejectment was sought on the ground that he has failed to pay the arrears of rent, . w.e.f 1-6-1982 to 28-2-1983, as well as on the ground that the room in occupation of the respondent is required for use and occupation by the family members of the petitioner.2. the ejectment petition was contested by the tenant, who in his written statement admitted that smt. kulwant kaur, wife of the petitioner, is the owner of the property. he therefore, denied that there was any relationship of landlord and tenant between the petitioner and the respondent. the rent was claimed to be rs. 100/- per month and not rs. 500/- per month as alleged by the petitioner. the respondent denied that the property is residential one. he rather took up the plea that the property is a non-residential property, which is situated in a commercial area. he further stated that the property comprises three shops on the ground floor which are occupied by various tenants and one of the said shops is in occupation of the tenant. the tenancy was claimed to have commenced on 15-12-1981.3. the rent controller on the appreciation of entire evidence on record, found relationship of landlord and tenant between the parties ; the rent was held to be rs. 500/- per month and the ground of personal necessity was found to be not available to the landlord as the room in possession of the respondent was held to be shop which was let out for running the business and trade. the petitioner preferred an appeal before the appellate authority. the respondent also filed cross objections on the issue of relationship of landlord and tenant. the appeal as well as the cross objections were dismissed and the finding of the rent controller on these counts was affirmed. the petitioner has impugned the orders of the authorities below by way of this present revision petition.4. mr. m l. sarin, sr. advocate, learned counsel for the petitioner contended that the building is suo residential one and even if a part of it was let out for the purpose of running a shop, then also, the same would remain residential building, and it can be got vacated on the ground of personal necessity. he also contended that the rate of rent was wrongly held to be rs. 100/- per month. on the other hand, mr. b. r. mahajan, advocate, learned counsel for the respondent, submitted that the petitioner in his cross-examination admitted that what was let out to the respondent was a shop and therefore, he cannot seek ejectment on the ground of personal necessity. with regard to rate of rent, he submitted that both the authorities below on the appreciation of evidence, have returned the finding which calls for no interference.5. after hearing learned counsel for the parties, at length. i find no merit in this revision petition. the petitioner though in his ejectment petition has stated the building is residential one and out of the same, one room was let out to the respondent, yet in his cross examination, he has admitted that the room was let out not for residential purpose, but for running a shop, meaning thereby that the room in -occupation of the respondent is a shop and not a residential room as alleged in the ejectment petition by the landlord faced with this situation, mr. sarin relied upon the following observation of the supreme court in c.a. no. 4216 of 1988 sh. dav brat sharma v. dr. jagjit mehta, c. a. no. 4216 of 1988:'in course of submissions advanced at the bar reliance was placed on the full beach decision of the punjab and haryana high court in hari mittal's case (air 1986 punjab 119). we find that this decision has followed the two judge bench judgment of this court in kamal arora v. aman singh's case the provisions of the punjab municipal act, 1911, were also placed before us. under section 192 of the municipal act building schemes are contemplated and in case a building scheme is in force, restriction on the nature of use is imposable and consequences of violation thereof arc also provided for.we gather that in respect of the jullundur city some portions have schemes under section 192 in force while for other portions, there is no such scheme. applicability of the ratio in hari mittal's case would depend upon whether the house in dispute is located within an area covered by a scheme since that information is not available on the record it would be necessary to gather information and the requirement would be with reference to 1973 when the tenancy was created. this question arisen be determined with reference to section 11 of the east punjab urban rent restriction act, 1949.we direct that the rent controller shall receive evidence for parties and collect such other evidence as he considers necessary to provide satisfactory factual data to this court after putting parties to notice of such material. the report should be received within two months hence. the matter shall be called immediately thereafter. both the parties are directed to appear before the rent contoller on 5-3-90 to take his orders. copy of this order be sent to the controller immediately this appeal shall be shown as a part-heard matter. liberty to mention after the report is received.'and submitted that a report may be called from the controller as to whether any scheme framed by the municipal corporation exists under which room forming part of the building in dispute could not be used for any other purpose except residential. i am-affraid to accept this contention of learned counsel for the petitioner the respondent in his written statement has categorically averred that the property is non-residential one and is situated in a commercial area. he also stated that there are three shops which are occupied by various; tenants and one shop is in his possession. despite this specific averment, no evidence was led by the petitioner to prove that the property is residential one or the area in which it is situated, is purely residential. he failed to examine any person from the office of the municipal corporation to prove that the area in which the building is situated is residential one or there is any sanctioned scheme either under the punjab municipal law or under the punjab town improvement act, to show that the building could not be used for any other purpose except residential. respondent also produced on record photograph, exh. r-1, in which, not only building in dispute has been shown, but also the adjoining building. i find from the photograph that the ground floor of the building consists of three shops and the first floor is shown to be residential. the adjoining building is also having shops on the ground floor and residence on the first floor. photograph, exh. r-1, clearly proves that the area in which the building is situated, is a commercial area where the ground floor is being used for commercial purpose and the first floor is being used for the purpose of residence. in this view of the matter, i am of the view that the petitioner is not entitled to seek an order of ejectment on the ground of personal necessity. the room in occupation of the tenant is nonresidential.6. i also find no merit in the contention of learned counsel for the petitioner that the shop was let out at the rate of rs. 500/- per month. mr. sarin in support of his argument on the other ground, i.e. rate of rent, referred to mark 'x/1' and 'rx', entries in register made by bhagi lal, postman, and maintained by the post office. he pointed out entry no. 888 for showing that a money-order of rs. 150/was remitted to the petitioner who refused to accept the same. he also submitted that if the respondent was paying a rent of rs. 100/- per month, then why he chose to send a money-order of rs. 150/-. this submission is also without any merit. firstly, these documents are not proved on record, secondly, it has also not been proved that the money order was sent by the respondent. the respondent in his statement as r.w-4 has categorically stated that he never sent any money-order to the petitioner. the petitioner also examined aw-5 jujhar singh, junior accountant of the office of the director, accounts, kapurthala, who in his statement stated that the record has already been destroyed and he is not in a position to say whether any money-order was sent to the petitioner by the respondent. both the authorities below on the appreciation of documentary evidence as well as on the basis of statement of witnesses examined in the case, have come to a firm finding of fact that the shop in dispute was let out to the respondent at the rate of rs. 100/- per month. this finding calls for no interference by this court.7. as a result thereof, the revision petition is dismissed with costs.