Sh. Janak Raj Ahuja Vs. Sh. Navneet Sehgal and anr. - 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. - ' petitioner also failed to produce the record regarding payment of salary to his employee. r-2, clearly show that it was an arrangement to run a branch in sector 8, chandigarh, and then another branch in sector 17, chandigarh was opened by the petitioner. as well as records of income-tax and sales-tax to show genuineness of the partnership-deed. he has also failed to produce the record to show that in a year, profits had not exceeded rs. tenant-petitioner also failed to produce any record to show that a sum of rs. in my view, from the statement of tenant himself, it has rightly been found by the authorities below that tenant has failed to prove that respondent no.v.k. jhanji, j.1. this is tenant's revision directed against the order of the rent controller as affirmed by the appellate authority.2. navneet sehgal (respondent no. 1 herein) filed an ejectment application against his tenant, namely, j.r. ahuja (petitioner herein) on the ground that the premises in dispute, i.e. scf no. 14, sector 8-b, chandigarh, were let out to him and he had sub-let the same to r.n. sethi (respondent no. 2 herein). petitioner contested the ejectment application by saying that he has not sub-let the premises to respondent no. 2, but he is his employee at a salary of rs. 1000/- per month. however, respondent no. 2 in his written statement stated that he is in possession of the premises as a partner on the basis of partnership-deed dated 1.8.1984. rent controller on the basis of pleadings and the evidence brought on record found that petitioner is running the business in the name and style of m/s universal sports company in another premises, i.e. sco no. 52-54, sector 17-c, chandigarh and has patted with possession of the premises in dispute to respondent no. 2. partnershipdeed set up by respondent no. 2 was found to be a camouflage. rent controller also placed reliance on the report of the local commissioner, sh. ravinder arora, advocate, who in his report dated 15.1.1987 had observed that respondent no. 2 was present in the disputed premises and he had told him that he is also in possession of first floor of s.c.f. petitioner in order to show that he had been paying salary to respondent no. 2 tried to prove certain entries of accounts-books showing payment of salary to respondent no. 2, but since the income-tax record did not support the entries the same were not believed. rent controller in para 16 of the judgment observed 'though the plea of partnership has been alleged by respondent no. 2, but respondent no. 1 has alleged respondent no. 2 as his employee but all these facts about partnership are not proved from the income tax department record and had respondent no. 2 been partner he was supposed to know profit and loss shown before the income tax department.' petitioner also failed to produce the record regarding payment of salary to his employee. rent controller thus, ordered ejectment of the petitioner on finding that respondent no. 2 has neither been proved to be his employee, nor the partner and the partnership-deed was only a paper transaction and was not to be acted upon. having felt aggrieved of the order of the rent controller, petitioner filed an appeal before the appellate authority. appellate authority vide a detailed judgment dated 22.8.1996 dismissed the appeal. hence, the present revision petition.3. learned counsel for the petitioner has contended that the authorities below have committed an error in law in finding that the petitioner has sub-let the premises to respondent no. 2. he has contended that the terms and conditions contained in partnership-deed, exh. r-2, clearly show that it was an arrangement to run a branch in sector 8, chandigarh, and then another branch in sector 17, chandigarh was opened by the petitioner. he further contended that a reading of the partnership-deed shows that salary was being paid to respondent no. 1 being a working partner and he was to be paid profit at the rate of 5 per cent if the sale of goods in a year was to exceed rs. 76,000/- and if it was to exceed rs. 1,50,000/- then profit was to be shared equally and salary of rs. 1000/- was liable to be adjusted in his share of profit. counsel also contended that it is a settled law that taking a partner would not amount to sub-letting.4. there is no dispute that so long as the tenant continues to be partner in the partnership, there is no sub-letting because being a partner in the business such tenant would be deemed to be in possession of the demised premises. however, in the present case, firstly, it is not the case of the petitioner in the written statement that respondent no. 2 is his partner but his definite case is that he is his employee; and secondly, both the courts below have held that partnership alleged is not a genuine one and is merely a camouflage to conceal real transaction of sub-letting. for genuine partnership business real intention of the parties thereto has to be found, conduct of the parties in this regard to be considered. in the instant case, tenant has produced only partnership-deed and no other document in the shape of account-books etc. as well as records of income-tax and sales-tax to show genuineness of the partnership-deed. he has also failed to produce the record to show that in a year, profits had not exceeded rs. 76,000/- or rs. 1,50,000/- and so, the profit was not shared. the statement of tenant-petitioner, while appearing as rw-2, as has been made available to me by the counsel for petitioner, shows that the tenant in his cross-examination has admitted to have handed over the premises to respondent no. 2 in the month of june, 1984. in his cross-examination, he also stated that he does not remember as to when he has visited the shop last time. he admitted to be correct that all the cash-memos were issued from the shop in sector 17-c, chandigarh, even for the sales of goods effected in sector 8, chandigarh. he further admitted that in the cash-memos, there is no mention of sector 8 shop. he further admitted that he did not furnish any information to the labour department that respondent no. 2 is his employee. tenant-petitioner also failed to produce any record to show that a sum of rs. 5000/- was invested by respondent no. 2, as finds mention in the partnership-deed. in my view, from the statement of tenant himself, it has rightly been found by the authorities below that tenant has failed to prove that respondent no. 2 is his employee and the partnership-deed is not a genuine one. in this view of the matter, no interference is called for in the finding of the authorities below.5. consequently, this revision petition being without any merit is to be dismissed. it is so ordered. however, petitioner is allowed three months' time to vacate the premises provided he deposits the entire arrears of rent, including that of three months, with the rent controller within one month and also files an undertaking to the effect that he shall hand over the vacant possession of the premises to respondent no. 1 on or before the expiry of period allowed by this court.