Jaili Ram Bansal Vs. Jai Pal - 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. - sarin, learned counsel for the petitioner, contended that on record the respondent has failed to prove that the shop in dispute was let out to the petitioner. in view of the admission of the respondent, the relationship of landlord and tenant between the parties is clearly established on the record.v.k. jhanji, j.1. this is tenant's revision petition directed against the orders of the authorities below whereby the tenant was ordered to be ejected2. landlord (respondent herein) sought ejectment of the petitioner from the tenanted premises under section 13 of the haryana urban (control of rent and eviction) act, 1973. the ejectment was claimed on the ground of non-payment of rent w. e. f. february 8, 1982. in the written statement, tenant (petitioner herein) denied the relationship of landlord and tenant. the petitioner in his written statement stated that the site underneath the shop belonged to hukam chand and others from whom the respondent took the site and thereafter constructed the shop. petitioner also alleged that on february 9, 1982, the respondent surrendered possession of the vacant site to hukam chand and others and sold the malba on the site to him for rs. 6,000/- which was to be paid in eight instalments of rs. 750/- each. the instalments were stated to have been paid through cheques. petitioner claimed to have taken the site on rent from hukam chand and others since february, 1980 at the rate of rs. 140/- per month.3. the rent controller on appreciation of the evidence on record found that there was relationship of landlord and tenant between the parties and since the tenant had not paid the rent to the landlord w. e. f. february, 1982, the petitioner was ordered to be ejected. on appeal, the appellate authority affirmed the findings of the rent controller these orders of the authorities below have been challenged in this revision petition.4. mr. h. l. sarin, learned counsel for the petitioner, contended that on record the respondent has failed to prove that the shop in dispute was let out to the petitioner. he further contended that the site underneath the shop did not belong to the respondent and, therefore, the respondent is not a 'landlord' within the meaning of the act. his precise submission is that the shop was not let out by the respondent to the petitioner with the consent of hukam chand and others and, therefore, the rent controller had no jurisdiction under the act to entertain the petition.5. after hearing the learned counsel for the petitioner, i find no merit in the revision petition petitioner in his written statement specifically denied the relationship of landlord and tenant. he never took up the plea that the shop in dispute was let out to him by the respondent. he in fact took up the plea that site underneath the shop in dispute was let out by hukam chand and others and malba was purchased by him from the respondent. when he gave his statement in the court as r.w.-2, he admitted that he took the shop in dispute on rent from respondent in the year 1977-78 and has been paying rent at the rate of rs. 250/ per month. in view of the admission of the respondent, the relationship of landlord and tenant between the parties is clearly established on the record.6. i also find no force in the second argument of the learned counsel for the petitioner as this stands concluded by a full bench judgment of this court in hari parshad gupta . v. jitender kumar kaushik, (1982) 84 p. l. r. 150 (f. b.), wherein it was held that when the land belongs to the municipal committee and the building thereon is constructed by the lessee, who lets out the same to the tenant, there are two distinct ownerships, i.e. municipal committee is owner of the land while the lessee is owner of the building. when an application for ejectment of tenant from such a building is filed by its owner, the same would be maintainable irrespective of the fact that the land underneath the building belongs to the municipal committee.7. faced with this situation, mr. sarin submitted that tenancy in favour of the respondent was surrendered and. thereafter the petitioner took the premises on rent from hukam chand and others. i find no merit in this argument too. petitioner firstly has taken no plea that he was a tenant under the respondent and secondly surrendering of tenancy is also not proved though the petitioner in his written statement has stated that malba of the shop was purchased by him from the respondent, but no such writing has been brought on record to show that the respondent ever sold malba to the petitioner or there was such an agreement.8. in view of the above discussion, i find no fault with the judgments of the trial court and the appellate authority directing the ejectment of the1 petitioner undder section 13 of the act. consequently, the revision petition, is dismissed with no order as to costs the petitioner is allowed three months' time to hand over the vacant possession of the shop in dispute to the landlord subject to the condition that he shall pay or deposit the entire arrears of rent, including the three months' rent in advance, within one month from today, failing which he shall be liable to be ejected forthwith.