Ajaib Singh Vs. Sukhdev Singh - Court Judgment

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- 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. - 431. 8. considering the facts of the present case, in the light of the judgment of the supreme court in dev brat sharma's case, i find that the landlord is not entitled to seek order of ejectment as he has failed to prove on record any sanctioned scheme under the punjab municipal law or the punjab town improvement act in order to show that the building of which the premises in dispute form part, cannot be used for any other purpose except residential.v.k. jhanji, j.1. this is landlord's revision directed against the orders of the authorities below dismissing his petition for the ejectment of his tenant on the ground of personal necessity.2. the tenant (respondent herein) vide rent-note dated 15th september, 1971, took on rent two rooms including courtyard at the rate of rs. 100/- per month, the front portion for the running of the shop and the back portion for the purpose of his residence. in 1974, a compromise took place between the landlord and the tenant vacated the back portion and retained front portion i.e. shop on rent of rs. 55/- per month. he also executed a rent-note dated 20th november, 1974. ejectment of the tenant was sought on the ground that the landlord required the premises for his own use and occupation and for the accommodation of his family.3. the tenant contested the petition. in the written-statement he denied that the premises were required by the landlord for his personal use and occupation. it was also claimed that the premises cannot be got vacated for personal necessity as the premises in occupation of the respondent is not 'residential building' as defined under the east punjab urban rent restriction act but is a shop. the rent controller dismissed the ejectment application after finding that the ground of personal necessity is not available to the landlord as the premises in occupation of the tenant is a shop.4. the landlord preferred an appeal before the appellate authority vide order dated 9th october, 1981 called for the report from the rent controller by the order of appellate authority, sangrur as the rent controller had not given any finding as to whether the premises in dispute were required by the landlord for his personal use and occupation the rent controller submitted report dated 24th november, 1981. in his report he found that the premises in dispute are bona fide required, by the landlord for his own use and occupation. however, the appeal of the landlord was dismissed by the appellate authority as it was of the view that the premises in dispute which are described as a shop and were let out for business purpose and are being used as such by the tenant, and thus the same cannot be got vacated on the ground of bona fide personal requirement of the landlord, this order is being challenged by the landlord in this revision petition.5. mr. r. k. battas, learned counsel for the petitioner, contended that the shop in dispute in possession of the tenant is an integral part of the 'residential building', and, therefore, the same can be got vacated on the ground of personal necessity. he has placed reliance on the full bench judgment of this court reported as hari mittal v. b. m. sikka, (1986-1) 89 p. l. r. 1 (f. b.).6. after hearing the learned counsel for the petitioner i am of the view that there is no merit in the revision petition in hari mittal's case (supra) the question was whether residential building can be converted into non-residential one by putting it for non-residential use. however, this is not the question here. in the present case, the shop in dispute is an independent unit of a residential building. the shop in dispute was let out for the purposes of carrying on business. therefore, she ratio of hari mittjl's case (supra) is not applicable to the case in hand moreover, hari millars case (supra) related to a building in the union territory of chandigarh where the user of every building is specified by law and, therefore, in that context it was held that the residential building cannot be converted into non-residential without the consent of the rent controller. hari mittal's case was considered by the supreme court in civil appeal no. 4216 of 1988. the relevant portion of the order of the supreme court in civil appeal no. 4216 of 1988, is reproduced as under :-'in course of submission advanced at the bar reliance was placed on the full bench decision of the punjab and high court in hari mittal's case (1986-1) 89 p. l. r 1. we find that this decision has followed the two judge bench judgment of this court in kamal arora v. amar 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 are 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 as created. this question arises 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 controller on 5.3 1990 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'.7. in pursuance of the directions of the supreme court, the rent controller after enquiry made a report to the effect that no such scheme exists. after considering the report of the rent controller, the supreme court dismissed the appeal of the landlord after finding that there has been no change of user in as much as tenancy was created for the purpose of locating the clinic and, therefore, the same cannot be got vacated on the ground of personal necessity. for this see dev brat sharma v. dr. jagjit mehta, 1990 (2) rent c.j. 431.8. considering the facts of the present case, in the light of the judgment of the supreme court in dev brat sharma's case, i find that the landlord is not entitled to seek order of ejectment as he has failed to prove on record any sanctioned scheme under the punjab municipal law or the punjab town improvement act in order to show that the building of which the premises in dispute form part, cannot be used for any other purpose except residential. this being the position the ground of personal necessity is not available to the landlord.9. consequently, the revision petition is dismissed. no order as to costs.