Pritam Singh Vs. Jaskaur Singh - 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.r. majithia, j.1. this regular second appeal is directed against the judgment and decree of the first appellate court affirming on appeal those of the trial judge dismissing the plaintiff appellant's suit for possession by pre-emption of the suit land.2. the facts :-one sarwan singh sold his land measuring 70 kanals 7 marlas to the defendant-respondent, vide sale deed dated august 16,1988. on may 23, 1989, the plaintiff appellant filed a suit for possession by pre-emption on the ground that he was a co-sharer in the suit land at the time of sale and continued to maintain such status till the filing of the suit and decree. the defendant-respondent contested the claim of the plaintiff and alleged that he was not a co-sharer in the suit land.3. from the pleadings of the parties, the following issues were struck :-1. whether the plaintiff has a superior right of pre-emption regarding the suit land for a consideration of rs. 1,17,000/-? o. p. p.2. if issue no. 1 is not proved what was the market value of the suit land at the time of sale o.p.p.3. whether the plaintiff is a co-sharer in the suit land, as alleged o. p.p.4. whether the plaintiff is estopped by his own act and conduct to file the present suit o p.d5. whether the plaintiff has got no cause of action o.pd.6. whether the defendant had made an improvement over the suit land to the tune of rs. 24,000/- if so, its effect 7 o.p.d.7. whether the defendant is entitled to charges of stamp and registration as alleged o.p.d.8. whether the defendant is entitled to special costs under section 35a of the code of civil procedure o. p.d.9. relief.4. the only dispute which was raised before the first appellate court was whether the plaintiff was a co-sharer and could maintain his claim for possession by pre-emption. the first appellate court ostensibly relying upon an order, dated october 1, 1990. exhibit d- 4, whereby naksha be was approved since no objections were filed to it, held that the suit land stood partitioned and the plaintiff ceased to be a co-sharer after partition. in coming to this conclusion he relied upon smt. harden v. ram jas, 1974 p. l. j. 3455. the first appellate court has not correctly understood the ratio of the judgment in hardevi's case (supra). in that case, after the sale of the land, one of the co-sharers moved for partition of joint land. on may 21, 1968, it was ordered as under : -'demarcation has been effected on the spot. partition has been effected according to the plan. now, naqsha jeem be obtained for june 4, 1968.'on june 17, 1968, an order was passed reccording that the period of limitation for filing an appeal against the order dated may 21, 1968 had expired and, therefore instrument of partition be prepared and partition would take effect from rabi, 1968. the bench found as a matter of fact that the instrument of partition had been prepared. although it was also observed that on the happening of an event anterior to the date of preparation of the instrument of partition, the partition was complete. these observations when read alongwith subsequent events indicate that the bench was conscious of the provisions of section 121 of the punjab land revenue act, 1887 (for short, the act).6. in the instant case, what has come on record is that on october 1, 1990, naksha be, ex. dx-5, was approved and it was ordered that 'naksha jeem' be sent for from halqa kanungo for october 14, 1990. there is no other order on record to establish that order, exhibit d-4, was complied with.7. the first appellate court did not correctly understand the ratio of the judgment in hardevi's case (supra) and read the observations in the judgment in isolation of the subsequent observations made therein it is in error in holding that the plaintiff ceased to be a co-sharer once 'naksha be' has been prepared and after the preparation of 'naksha be', the partition was complete the conclusion arrived at by it cannot be sustained8. the term 'completion of partition proceedings' appearing in section 121 of the act says that when partition is completed, the revenue officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect recorded therein. the plain reading of section 121 provides that instrument of partition? is to be prepared after, the partition had been completed which means that once the distribution or revenue, rent etc. had been determined under section 120 of the said act, partition is complete. the joint status of the parties comes to end once partition order has been passed. partition is not effective in the absence of instrument of partition. no severance of status of co-sharers takes place in the absence of instrument of partition and delivery of possession of the allotted portion of joint land to parties. the term 'completion of partition proceedings' as mentioned in section 121 of the act came up for interpretation in hadayat khan and ors. v. shahamand, a.i.r. 1924 lah. 155, wherein it was held thus :--'it means simply that all disputes raised before the revenue officer had been decided by him but to that date the joint estates remained joint the parties had not been even inducted into the several shares which it was proposed to allot to them under the scheme of any partition and apparently no formal order of that kind was ever passed. after appeals to the settlement officer and applications for revision to the financial commissioner had been rejected the revenue officer gave orders for the drawing up of the deed of partition and the deed of partition was accordingly drawn up on the 1st december, 1905, and in obedience to the provisions of section 121 of the land revenue act it was provided in that deed that the partition should take effect from kharif 1905. it is, of course, quite possible that a partition should be made, and possession of the several lots be given and taken and that no format instrument of partition be prepared, in which case no doubt the giving and taking of possession by the several shares of their several lots would be held to be the date on which the joint holding ceased to be joint and became severalty. the present, however, is not such a case. there was no doubt proceedings taken with a view to effect partition long before kharif, 1905, but those proceedings culminated and found their ultimate result and expression in the instrument of partition, and that instrument provided that the land should remain joint up to kharif 1905, and become severally only in that harvest. from this it follows that even if the sharers took possession of the plots allotted to them before kharif 1905 their possession upto that date was merely the possession of co-sharers in separate possession of portions of the joint estate.'9. the right to partition flows from the notion of individual ownership of property. the right is one of the ordinary legal incidents of joint ownership. it is merely an arrangement whereby co-owners having an undivided interest in one or many properties take by arrangement specific property in lieu of their shares in all. section iii of the act provides that any of the joint owners, or a person having a decree for partition or any written acknowledgement of the right is competent to apply for partition. on ' receiving the application the revenue assistant will summon all the interested parties, shareholders and legal heirs of the deceased shareholder according to the procedure prescribed by section 20 of the act. after the summoning is complete any of the co-sharer or co sharers who have been joined as respondent may file an application for separating his share in the joint holding. a co-sharer can file objections as mentioned in section 112 of the act. if the objection is regarding the question of title, the revenue officer is at liberty to decide such question himself or direct the parties to get it decided from the civil court and stop the partition proceedings until such question of title is decided. it the revenue officer comes to the conclusion, that there is no question of title involved, he will ask the patwari to prepare a map of the land to be. partitioned and share of the persons asking partition, popularly known as 'naksha alf'. this naksha alf contains the details of the possession of the co-sharer asking for partition, excess or less area cultivated by that co-sharer. on receipt of naksha alf the revenue officer shall ask the parties to file objections to it after disposing of those objections he will frame the mode of partition. any of the parties to the partition proceedings can challenge the mode of partition decided by the revenue officer in appeal under section 118(2). if the mode of partition is not challenged it becomes finality the revenue officer shall ask the patwari to get the shares separated of the joint owners. according to the mode of partition, the patwari prepares the map. which is popularly called 'naksha be'. any party aggrieved against 'naksha be' can challenge it in appeal on the ground that it was not prepired according to the mode of partition. when 'naksha be' becomes final or is agreed to by the parties, it is deemed to be sanctioned. the order of sanction is popularly known as 'naksha jeem''. the order is communicated to the patwari, kanungo and the parties after the expiry of period of limitation, instrument of partition is drawn on the stamp paper by the revenue officer. it is to be specified therein as to from which harvest partition will be effective and till then the status is joint. the revenue officer puts the parties in possession according to the instrument of partition within three years from the date of its preparation. in the instant case, no instrument of partition was drawn and hence there was no severance of status.10. the first appellate court dismissed the claim of the plaintiff without examining the merits. we think it proper to remit the case to the first appellate court to decide, it afresh in the light of the observations made above.11. for the reasons stated above, the appeal succeeds and the judgment and decree of the first appellate court are set-aside. the parties through their counsel are directed to appear before the first appellate court on august 20, 1992 and the first appellate court will dispose of the appeal thereafter expeditiously.