Keshva Nand Vs. Smt. Krishna Rani 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.g.c. garg, j.1. this order will dispose of civil revision nos. 516 and 684 of 1993 as the question of law involved therein is the same.2. facts are being taken from civil revision no. 516 of 1993. smt. rrishna rani and others filed a civil suit being 254 of 1984 against harbans lal son of gurditta mal and the firm jattu ram rekha ram, balachaur through keshva nand, for recovery of arrears of rent or compensation for use and occupation of the shop in dispute for the period november 1, 1983 to may 31, 1984 and also for ejectment of the aforesaid defendants from the said shop. keshva nand (defendant no. 2), petitioner herein and counsel for the defendants made a joint statement on august 4, 1987 in the suit, the relevant portion of which is reproduced below :-'as regards the matter in controversy in this case, the suit of the plaintiff shall stand dismissed. however, we will pay rs. 2,000/- towards the arrears of rent in lump sum by 10 8.1987, in case, the defendant no, 2 undertakes to execute the rent note in respect of the shop in dispute in this case w. e. f. 10.8.1987, for a period of 4 1/4 years. this rent note will be executed by keshva nand as proprietor of m/s. keshva nand gopal krishan in favour of the plaintiffs or any one of their representatives on their behalf the costs of the rent note will be borne by us'.statement of the plaintiff no. 2 as also counsel for the plaintiffs was recorded on the same date which reads as under: -'we have heard the above statement of defendant no. 2 and his counsel. we admit the same to be correct. the suit may be disposed of in terms of according to the above statement of defendant no. 2 and the parties be left to bear their own costs'.3. in terms of the above statements, a rent note dated august 5, 1987 was executed between the parties. it has been placed on the file of the revision petition as annexures p 3/1. the suit was disposed of by the learned sub judge, garhshankar by order dated august 10, 1987. the suit was dismissed as compromised and the parties were left to bear their own costs it is appropriate to notice the said order of the learned sub judge, which reads as under :-'the rent note has been executed and the photostat copy of the same has also been placed on the file shri sant ram, learned counsel for the plaintiff has made a statement that the plaintiff has compromised the suit and that the same be dismissed as compromised. accordingly this suit is dismissed as compromised and the parties are left to bear their own costs. file be consigned to the judicial record room'.after expiry of 4 1/2 years of the date of the order passed by the learned sub judge, the plaintiffs in the suit filed an execution application on november 14, 1992 in civil suit no. 254 of 1984, in the court of addl. senior sub judge seeking warrant of possession of the shop by requesting as under : -'the dispute was compromised between the paities. as per the compromise keshwa nand son of jattu ram, defendant no. 2 gave a statement dated 4.8,1987 by which he agreed to vacate the shop in dispute after expiry of four and half years. now the said period has been expired on 4.2.1992. the defendant no. 2 has not vacated shop and has not delivered possession of the shop in dispute to the decree holders. it is, therefore, prayed that the warrant of possession of shop in dispute may kindly be issued in favour of decree holders and against the j. d. in the interest of justice and equity, the j. d has not paid arrears and rent since january 1992, which may also begot recovered.'4. keshwa nand filed objections to the execution, inter alia, alleging that there was no agreement/compromise to deliver possession of the shop to the plaintiff by february 4, 1992 and that the execution application was not maintainable, suit of krishna fanietc. having been dismissed and no decree having been passed in their favour. after the filing of the objection petition, balachaur where the shop in question is situated, happened to be declared as an urban area on january 1, 1993, objector keshwa nand filed fresh objection petition re-iterating the earlier objections and raising an additional objection to the effect that the decree, if any had become unexcitable, the shop in question having fallen within the urban area. the aforesaid two objection petitions have been dismissed by two separate orders dated february 8, 1993 and these orders have been impugned in the present petitions.5. learned counsel for the petitioner vehemently contended that order dated august )0, 1987 dismissing the suit as compromised could not be termed as a decree which could be executed in other words, the contention of the learned counsel is that there is no decree whatsoever which could be executed by the learned executing court, and the executing court while doing so, has exercised the jurisdiction which was not vested in it by dismissing the objection petitions the other contention of the learned counsel: for the petitioner is that balachaar where the shop in dispute is situated was declared as an urban area after the order dated august 10, 1987 dismissing the suit of the plaintiffs had been passed and that being so, the decree if any could not be executed, in support of his contention, learned counsel for the petitioner relied upon mani subrat jain v. raja ram vohra, a. i. r. 1980 s. c. 299, and diwan chand v. m/s. amar nath prem nath, 1986 (1) rent c. r. 521.6. after hearing learned counsel for the parties, i find that there is a considerable force in the first contention of the learned counsel for the petitioner, it could not be shown that there was a decree what to talk of an executable decree, execution of which was sought. suit for the plaintiffs as noticed above, was dismissed as compromised in view of the statements of the parties and their counsel. nothing is discernible even from the statements of the parties or their counsel that the defendant in the suit now petitioner ever agreed or undertook to vacate the shop after the expiry of 4 1/4 years. what is clear from the statements is that the suit was to be dismissed as defendant no- 2, the present petitioner undertook to execute a rent note in respect of the shop in dispute with effect from august 10, 1987 for a period of 4 1/4 years. from this statement of the petitioner or from the order passed by the court it cannot be inferred that the court ever passed a decree of ejectment which could be executed against the present petitioner. learned counsel for the respondents could only argue that a reading of the statement of defendant no. 2 would indicate that there was no intention to dismiss the suit and the intention of defendant no. 2 was clear that he will vacate the shop after the expiry of 4 1/2 years. even this is not discernable from the statement of defendant no. 2 which has been reproduced above. be that as it may, there was no decree before the executing court which could be executed and the possession of the shop ordered to be delivered to the plaintiff in execution thereof. the only undertaking which defendant no. 2 gave was to execute a rent note which he did nothing more can be read in the statement the suit having been dismissed, there remained nothing thereafter what to talk of a decree which could be executed it is not understood as to how and under what circumstances, learned executing court took a contrary view and dismissed the objection petition and also directed the delivery of possession of the shop in question to the plaintiff the executing court has not only acted with material irregularity and illegality but also wholly without jurisdiction in ordering delivery of possession of the shop by allowing the execution application. the action of the executing court cannot be said to be an honest opinion of merits of the controversy. to me it is apparent that the executing court acted deliberately in ordering delivery of possession. not only this, it has been pointed out that this court by order dated february 11, 1993 stayed dispossession of the petitioner from the shop in dispute till further orders and that this order was brought to the notice of the other party and also the executing court, yet warrant of possession was executed on february 11, 1993 itself.7. since there was no executable decree, it is considered not necessary to go into the other contention, namely, whether the decree could be executed after the area where the shop in question is situated, had been declared as an urban area.8. for the reasons recorded above, these revision petitions are allowed and the orders under revision passed by the executing court on february 8, 1993 are set aside, with costs which are assessed at rs. 1000/- in each petition. the execution application filed by the plaintiffs is consequently dismissed and the objection of the present petitioner accepted.9. civil misc. application nos. 1622/c. 11, 1623/cii of 1993 in civil misc application no. 1406/c. ii of 1993, 1406/c ii and 1405a c. ii of 1993 filed in civil revision no. 516 of 1993 are allowed subject to all just exceptions, in view of the decision aforesaid, the executing court is directed to restore the possession of the shop in question to the petitioner as and when he moves an application for the purpose consequently, civil misc application no. 1406/c. ii of 1992 in civil revision no. 516 of 1993 it rendered infructuous. civil misc. application no. 2297/c. ii of 1993 in civil revision no. 684 of 1993 is also allowed as prayed.