Smt. Swaran Kaur and anr. Vs. Sardari Lal Kapur 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. - the respondents are various office bearers of the said trust as well as functionaries of the school. 1. the respondents having failed to award compensation, the petitioners moved the commissioner claiming rs. 6, it was held that the petitioners failed to prove that budh singh was employed by the aforesaid trust and further that his employment was of casual nature and was thus not covered under the act. (c&cr) 175 the aforesaid decision in raj rani's case (supra) was followed and it was held that the employer having failed to establish that the employment of the workman was of a casual nature, the person concerned was covered by the provision of the act. the law laid down in raj rani as well as rakha ram clearly applies to the facts and circumstances of the present case. arjunan, 1992 acj 762. it was ob- served in paragraph 12 that a poor workman who committed a mistake in claiming compensation in a sum less than that to which he would be legitimately entitled will not, however debar the commissioner from awarding compensation in a sum to which he is legitimately entitled under the provisions of the act.a.p. chowdhri, j.1. this appeal is directed against order dated april 23, 1993, passed by the commissioner under workmen's compensation act, dismissing the appellants' petition for compensation.2. brief facts of the case are that one budh singh (50), who was employed as a mason, was working along with other masons and workers for the replacement of roof of the building of b.k.e. & i higher secondary school, ghee mandi, amritsar, in june 1985. the school is run by bal mukand khatri education trust, amritsar. the respondents are various office bearers of the said trust as well as functionaries of the school. the roof fell down as a result of which budh singh and others also fell down and received injuries. budh singh succumbed to his injuries the same day at 1 p.m. in s.g.t. hospital, amritsar. the petitioners are his widow and minor daughter. they served a notice under section 10 of the workmen's compensation act, 1923 (hereinafter referred to as 'the act') on sardari lal kapoor, joint secretary of the trust, respondent no. 1. the respondents having failed to award compensation, the petitioners moved the commissioner claiming rs. 30,000/- as compensation, besides interest from the date of accident till the date of payment.3. the petition was contested.4. on the pleadings of the parties, the following issues were framed:-1. whether respondent no. 2 is manager of b.k. trust and is liable as such opa (piara lal kapoor, vice president of b.k.e & i trust c/o principal b.k. e. & i higher sec. school).2. whether respondent no. 10 is principal of b.k. school and is liable for claim in question opd (o.p. dhawan).3. whether the application can be made against sardari lal respondent opa (jt. secy of trust).4. whether respondent no. 13 is a trustee of society (mohan lal verma, advocate, member of trust).5. whether applicant no. 1 is widow of budh singh and applicant no. 2 is her daughter opa.6. whether the employment of budh singh was made by the trustee of the registered society if not, its effect opa.7. whether budh singh was a 'workman' under workmen's compensation act opa.8. whether budh singh died because of injuries in accident as alleged opa.9. whether notice of alleged accident was duly served, if not, its effect opa.10. what was the wages of budh singh deceased opa.11. to what amount of compensation applicants are entitled and from whom opa.12. whether any of the respondents is personally liable for the compensation opa.13. whether this commissioner has got jurisdiction to try this suit, opa.14. relief.5. issue no. 1 to 3 were decided against the petitioners and it was held that the manager of the trust, principal of the school and sardari lal kapoor, joint secretary of the trust, were not liable to pay the compensation in their individual capacity. issue no. 4 was rendered infructuous as during the pendency of the proceedings mr. mohan lai verma, one of the trustees, died. under issue no. 5, it was held that the petitioners were the widow and minor daughter of budh singh deceased. under issue no. 6, it was held that the petitioners failed to prove that budh singh was employed by the aforesaid trust and further that his employment was of casual nature and was thus not covered under the act. issue no. 7 was also decided against the petitioners and it was held that budh singh was not a workman under the act. issue no. 8 was, however, decided in favour of the petitioners and it was held that budh singh died because of the injuries received in the accident in question. under issue no. 9, with regard to service of notice, it was held that the same was not served on the proper person and was thus not valid. under issue no. 10 it was held that budh singh was being paid wages at the rate of rs. 40/- per day a the material time. as a result of the decision under issues 6 and 7 the amount of compensation was not determined and it was further held under issue no. 12 that the petitioners were not entitled to recover compensation from any of the respondents in their individual capacity either jointly or severally. under issue no. 13 relating to jurisdiction, it was held that the commissioner had necessary jurisdiction as the accident took place within its territorial jurisdiction. as a result of these findings, the petition was dismissed, leaving the parties to bear their own costs. aggrieved against the order, the petitioners have preferred this appeal.6. i have heard mr. premjit kalia for the petitioner-appellants and mrs. surjit bindra for the respondents.7. the findings on certain issues, which have been decided in favour of the petitioner-appellants, have not been assailed. these findings are even otherwise correct and are, therefore, affirmed.8. only two questions remain. these are, whether budh singh was a 'workman' within the meaning of the act and the validity of notice served in this case.9. clause (n) of section 2 of the act defines 'workman' in the following words:-'workman 'means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is -(i) xx xx xx xx(ii) employed in any such capacity as is specified in schedule ii, whether the contract of employment was made before or after the passing of this act and whether such contract is expressed or implied, oral or in writing; but does not include any person wdrkinu in the capacity of a member of the armed forces of the union ; and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them.'the relevant part of schedule-ii in terms of clause (n) (ii) above is as follows:-' the following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say any person who is -xx xx xx xx xx'(viii) employed in the construction, maintenance, repair or demolition of - (a) any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof; orxx xx xx xx xx'10. the contention of mrs. surjit bindra is that it was no where pleaded nor proved that the deceased was working on a building which was more than one storey in height or more than 12 feet from the ground level. in the absence of any such averment, one of the necessary ingredients of being a workman was missing and, therefore, the deceased could not be deemed to be workman so as to attract the applicability of the act. further contention of mrs. bindra is that under section 48 of the trusts act, no trustee can act singly and all must join in the execution of the trust except where the instrument of trust otherwise provides. it was further contended that the deceased had not been employed in connection with the trade or business which was to carry out the objects of the trust including imparting of education. in other words, the deceased was employed for construction work which was distinct from the employer's trade or business which was carrying out the objects of the trust including the imparting of education by running a higher secondary school.11. after careful consideration i am unable to accept any of the these contentions.12. a perusal of clause (viii) of schedule-ii, reproduced above, shows that the various parts of sub-clause (a) are separated by use of the word 'or' and not by the use of 'comma'. this necessarily implies that the various parts of sub-clause (a) have to be read disjunctively and not conjunctively. thus construed, the first part of sub-clause (a) would read 'employed in the construction, maintenance, repair or demolition of any building which is designed to be or is. it follows that a person employed in connection with the aforesaid purposes in respect of any building, which is a building properly so called or which is designed to be one such, would satisfy the requirement of the above definition. it is not disputed that the repair which was being carried out when the accident took place was of the building of the higher secondary school. the other parts of sub-clause (a), namely, a building having more than one storey in height or having a height of 12 feet or more from the ground level are not applicable and the absence of any pleadings on that score is not sufficient to throw out the claim of the petitioner-appellants.13. it was admitted on behalf of the respondents that budh singh had been employed as a mason by sardari lal kapoor who was a member of the trust and also its joint secretary. no doubt, under section 28 of the trust act the trustees could not act singly, but the respondent-trust cannol take advantage of its own default in not passing a resolution regarding the employment of budh singh and other workmen to carry out the work of repair to the school building. it is impossible for a mere mason or labourer to ask the trust to pass the necessary resolution before he is employed. it would lead to an impossibility if such a literal construction were placed on the provisions of section 28 in the facts and circumstances of the case in hand.14. when the trust undertook the work of carrying out extensive repairs or replacement of the roof, that was the employer's trade or business and it was in that connection that budh singh deceased was employed. if the words of the definition appearing in clause (x) are not construed in this manner, it would lead to absurdity.15. coming to the last contention, the word 'casual' occurring in the definition has not been defined under the act. it has been observed in more than one decisions that the word is not capable of a precise definition. the sum and substance of various decisions dealing with this aspect of the mater whether employment is of a casual nature or otherwise, depends on the facts and circumstances of each case. the onus of proving that the employment was of a casual nature is on the employer and where the employer fails to discharge that onus, it would follow that the workman was covered under the act. in raj rani v. firm nursing dass mela ram and another, a.i.r. 1964 punjab 315 the facts were that a person was employed on wages for painting the premises of a shop, while painting the premises, he touched a live electric wire and died on account of electric shock. it was held that the deceased was a workman within the meaning of the act. shamsher bahadur, j. (as he then was) observed that in construing what is an employment of a casual nature, it is the nature of the service which has to be looked at and not its duration. it was further observed that with the progress of times the concept and the circumstances in which a workman is entitled to compensation has considerably widened and a liberal construction has to be put on this phrase. the learned judge made reference to several other authorities of various high courts, which included cases where a person employed for executing repairs to the building fell from the scaffolding while executing repairs and the heirs were held entitled to compensation under the act. in a more recent case in rakha ram v. harcharan dass, 1983 c.l.j. (c&cr;) 175 the aforesaid decision in raj rani's case (supra) was followed and it was held that the employer having failed to establish that the employment of the workman was of a casual nature, the person concerned was covered by the provision of the act. the law laid down in raj rani as well as rakha ram clearly applies to the facts and circumstances of the present case. it is, therefore, held that budh singh was a workman with the meaning of the act and petitioner-appellant are entitled to succeed.16. in the municipal commissioner baroda v. patel engineering co. ltd. 1976 acj 104 their lordship of the supreme court, while considering the provisions of the section 4a of the act laid down as under :-'sub-section (1) of section 4a of the act provides that compensation under section 4 shall be paid as soon as it falls due. sub-section (3) of section 4a of the act provides that where any employer is in default paying the compensation due under the act within one month from the date it fell due, the commissioner may direct that, in addition to the amount due together with, if in the opinion of the commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount shall be recovered from the employer by way of penalty. a bare reading of these provisions indicates that the employer is under the obligation to pay the amount of compensation as soon as it falls due on the date on which the incident occurred. if the employer fails to do so the law cast a duty on him to pay interest at the rate of 6 per cent if the commissioner so orders. the employer who does not pay compensation on the date when it falls due can be made liable to pay interest to the amount of compensation because there is a delay in the payment which the statute requires him to pay as soon as it falls due.'17. with regard to the validity of the notice, all that was pleaded in the written statement on behalf of the respondents was that the notice had been duly replied to. in other words, no objections was taken as to the person on whom the notice was required to be served or any infirmity in the notice on that account. even otherwise, the notice was admittedly served on sardari lal kapoor, who was joint secretary of the trust. i find no infirmity in the notice.18. the only question which remains to be considered is whether the claim of the petitioner-appellants must be confined to a sum of rs. 30,000/-on the ground that that was the amount claimed by them. the contention of mrs. bindra, learned counsel for the respondents, is that the petitioner-appellants must be held bound by their pleadings. mr. kalia, on the other hand, submitted that sections 4a and 5 of the act lay down the method for calculating compensation and there is no estoppel against the statute. i find force in the submission of mr. kalia. in fact, this view finds support from the observations appearing in hastimal v. arjunan, 1992 acj 762. it was ob- served in paragraph 12 that a poor workman who committed a mistake in claiming compensation in a sum less than that to which he would be legitimately entitled will not, however debar the commissioner from awarding compensation in a sum to which he is legitimately entitled under the provisions of the act. i am in respectful agreement with the above observations.19. for the foregoing reasons, the appeal is allowed and the order of the commissioner is set aside. it is directed that the commissioner shall work out the compensation in accordance with the provisions of the act and shall also work out the interest at the rate of 6 per cent per annum besides penalty in accordance with the provisions of section 4a of the act, within two months from the dale of receipt of a copy of this order. the amount so determined shall be payable/recoverable according to law. the appellants shall be entitled to their costs, which are required as rs. 2500/-.