Pardeep Kumar and ors. Vs. Mahabir 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.v.k. jhanji, j.1. petitioners are the vendees. on purchase, they applied to the assistant collector grade ii, charkhi dadri for getting their land partitioned. respondents, on appearance, raised an objection to the continuance of the partition proceedings. their objection was that they had filed a suit in civil court in which the sale in favour of the petitioners stands challenged on the ground that the property belonged to hindu undivided family and thus, could not be sold without any legal necessity. on the strength of the suit which they had filed in the civil court, they asked the asstt. collector to stay the proceedings since the question of title was involved. assistant collector grade ii, vide order dated november 20, 1990, found as follows :--'counsel for the applicant, counsel for respondents no. 1 to 6 are present. they have been heard. no question of title is involved in the present case. hence the objections filed by the respondents are dismissed, naksha 'k' for 17.12.90 be sum moned.'against this order appeal was preferred by the respondents before the distt judge, bhiwani, who allowed the appeal, set aside the order of assistant collector grade ii and stayed the partition proceedings on the ground that the question of the title was involved and the same is pending decision in the civil court. the order of the district judge is being impugned in this court.2. the only contention of mr. v. k. jain, senior advocate, counsel for the petitioners, is that no appeal was maintainable before the district judge because there was no decision of the revenue court declining the question of title. in reply, mr. rajiv bhalla, counsel for the respondents, contended that the assistant collector did decide the question of title and, therefore, the appeal was rightly entertained by the distt. judge.3. having heard the counsel for the parties at length i am of the view that the order of the district judge cannot be sustained. section 117 of the punjab land revenue act. 1887 deals with appeal. for facility of reference, section 117 is reproduced below :--'117. disposal of questions as to title in property to be divided.(1) when there is a question as to title in any of the property of which partition is sought, the revenue officer may decline to grant the application for partition until the question has been determined by a competent court, or he may himself proceed to determine the question as though he was such a court.(2) where the revenue officer himself proceeds to determine the question, the following rules shall apply, namely,(a) if the question is one over which a revenue court has jurisdiction, the revenue officer shall proceed as a revenue court under the provisions of the punjab tenancy act, 1887.(b) if the question is one over which a civil court has jurisdiction, the procedure of the revenue officer shall be that applicable to the trial of an original suit by a civil court and he shall record a judgment and decree containing the particulars required by the code of civil procedure to be specified therein.(c) an appeal shall lie from the decree of the revenue officer under clause (b) as though that decree were a decree of a subordinate judge in an original suit;(d) upon such an appeal being made the district court or high court as the case may be, may issue an injunction to the revenue officer requiring him to stay proceeding pending the disposal of the appeal.(e) from the appellate decree of a district court upon such an appeal, a further appeal shall lie to the high court if such a further appeal is allowed by the law for the time being in force.'sub-section (1) of section 117 of the act makes it abundantly clear that when any question as to title of property is raised, two modes are open to the revenue officer, the first is that he may stay the application for title until the question has been determined by a competent authority. the second mode is that he may proceed to determine the question as though he was such a court. 'where he himself decided to determine the question of title, then he shall proceed as a revenue court as per the provisions of the punjab tenancy act, 1887. but where the question is one where the civil court has the jurisdiction, procedure of the revenue officer would be the one applicable to the trial of an original suit by a civil court the revenue officer on determination of the question of title, would proceed to record judgment and decree containing particulars required by the code of civil procedure once the judgment and decree is given, appeal lies to the distt. judge as though that may be a decree of a subordinate judge in an original suit second appeal is provided to the high court. thus, once the revenue officer forms his satisfaction that there is a question of title, he would proceed to decide himself or refer the matter to the civil court. in the present case, the order of the assistant collector indicates that the revenue officer found that no question of title was inolved. objections preferred by the respondents to that effect were dismissed. there was no determination of question of title no judgment or decree was passed as provided under clause (b) of sub section (2) of section 117 of the act appeal was maintainable only if judgment and decree had been passed. in this view of the matter, i am of the view that the district judge had no jurisdiction to entertain the appeal against the order of the revenue officer.9. consequently, the revision petition is allowed and the order of the district judge is set aside. now it shall be open to the assistant collector to proceed with the partition proceedings. the respondents, of course, shall be at liberty to challenge the order of the assistant collector in accordance with law before the appropriate court.