Sunil Sood Vs. Roshan Lal - 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. - 10.4.1994 till date, subject to the condition, that in case of success, the amount be refunded/adjusted against the future rent. the learned counsel for the appellant prays for three week's time for payment of the mesne profit assessed to the plaintiff/respondent, subject to refund/adjustment in case of success in case. 4. while deciding the second appeal, however, the high court had failed to take notice of the application under order 41 rule 27 of the code of civil procedure and decide whether additional evidence could be permitted to be admitted into evidence.vinod k. sharma, j.c.m. no. 6384c of 20091. this application under order 22 rule 4 read with section 151 c.p.c. has been moved for bringing on record the legal representatives of respondent roshan lai, who is stated to have died lifter the decisiqn of appeal by the learned addl. district judge. for the reasons statedirr the application, persons named in para no. 2 of the application are ordered to be brought on record as legal representatives of deceased roshan lal-respon-dent, subject to all just exceptions.office is directed to carry out necessary correction in the memo of parties.mr. sanjiv peter, advocate accepts notice on behalf of the newly added respondents.this application under section 151 of the code of civil procedure has been moved on behalf of the applicant/appellant for placing on record annexures p-l to p-ll. in absence of an application under order 41 rule 27 of cpc making out a case for leading additional evidence, there is no provision under law by which the documents can be placed on record in regular second appeal. the application is dismissed being not competent.this regular second appeal is directed against the judgment and decree dated 26.3.2009, passed by the learned courts below vide which suit filed by the plaintiff/respondent roshan lal for possession and mesne profit, stands decreed.2. it is not in dispute, that the respondent is the owner of the property in dispute. the dispute is only as to whether the defendant/appellant is in unauthorized occupation or is a tenant. the learned trial court while decreeing the suit for possession has also held, that the respondent/owner would be entitled to mesne profit for use and occupation of the shop in question @ rs. 45,000/- per annum from 10.4.1994 till the possession of the shop in dispute is handed over. it is also not in dispute that no payment has been made by the appellant/defendant to the owner by way of rent or by way of mesne profits for use and occupation.3. the learned counsel for the appellant states, that appellant is willing to make the payment of assessed mesne profit w.e.f. 10.4.1994 till date, subject to the condition, that in case of success, the amount be refunded/adjusted against the future rent. the learned counsel for the appellant prays for three week's time for payment of the mesne profit assessed to the plaintiff/respondent, subject to refund/adjustment in case of success in case.4. in the appeal the substantial question of law raised is:whether the judgment and decree passed by the learned lower appellate court without deciding an application moved under order 41 rule 27 of the cpc is sustainable in law?the contention of the learned senior counsel for the appellant is, that the judgment and decree passed by the learned lower appellate court cannot be sustained in view of the law laid down by the hon'ble supreme court in the case of jatinder singh and anr. minor through mother v. mehar singh and ors. 2009(1) r.c.r. (civil) 253, wherein the hon'ble supreme court has been pleased to lay down as under:4. while deciding the second appeal, however, the high court had failed to take notice of the application under order 41 rule 27 of the code of civil procedure and decide whether additional evidence could be permitted to be admitted into evidence. in our view, when an application for acceptance of additional evidence under order 41 rule 27 of the code of civil procedure was filed by the appellants, it was the duty of the high court to deal with the same on merits. that being the admitted position', we have no other alternative but to set aside the judgment of the high court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.in view of the law laid down by the hon'ble supreme court in the case of jatinder singh and anr. (minor) through mother v. mehar singh and ors. (supra) the substantial question of law is answered in favour of the appellant and against the defendant/respondents.5. for the reasons stated, this appeal is allowed. the judgment and decree passed by the learned trial court is set aside, subject to the condition that the amount of mesne profit assessed shall be paid by the defendant/appellant within three week's from today.6. on furnishing of proof of deposit, the learned lower appellate court shall redecide the appeal after disposing of the application for leading additional evidence. however, it is made clear, that in case the amount is not paid, as undertaken, this regular second appeal would be deemed to have been dismissed. the parties, through their counsel, are directed to appear before the learned lower appellate court on 20.7.2009.