Rameshwar and ors. Vs. Ram Gopal 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. - it was stipulated in the mortgage deed exhibit p1 that no interest was chargeable on the mortgaged money as the house in question was enjoyed by girdhari lal. (4) whether the suit is bad for misjoinder and non-joinder of necessary parties? by now, it is well established that a person in order to seek the relief as provided under section 53a of the transfer of property act, 1882, is required to prove the following essential ingredients :(1) that the transferor has contracted for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;b. rai, j.1. this appeal arises out of a suit for possession of a house fully described in the heading of the plaint by way of redemption. that suit was decreed by the subordinate judge, third class, sirsa, vide his judgment and decree, dated february 4 , 1978. the judgment and decree aforesaid were challenged in appeal before the learned additional district judge, sirsa, who vide his judgment and decree, dated august 9, 1979 dismissed the appeal with costs and affirmed the findings of the trial court.2. defendants rameshwar and bhagirath have come upto this court in second appeal.3. the facts of the case are that on october 28, 1965, ram gopal, rameshwar and bansi dhar mortgaged with possession house in question to girdhari lal for rs. 2,000/- vide mortgage deed exhibit p1. it was averred that rameshwar, bhagirath and hari ram sons of bakshi ram were in possession of the house. it was stipulated in the mortgage deed exhibit p1 that no interest was chargeable on the mortgaged money as the house in question was enjoyed by girdhari lal. in fact, the suit is against rameshwar, bhagirath and hari ram sons of bakshi ram for possession, as possession of the house was given by girdhari lal to them. after the redemption of the house, they had to go with mortgagee and had no right to retain the possession.4. on notice, girdhari lal filed admission written statement. the suit was contested by rameshwar, bhagirath and hari ram by filing a separate written statement, contending that the mortgage was simple one and the possession was never delivered to girdhari lal. they pleaded that rameshwar son of surja ram, plaintiff, for himself and for bansi dhar had entered into an agreement exhibit d1 to sell the suit house for rs. 3800/- to rameshwar and bhagirath sons of bakshi ram and had received rs. 2,000/- as advance. bansi dhar brother of rameshwar was minor who had half share in the house and it was argued that balance amount of rs. 1800/would be paid after obtaining the permission of the guardian judge, hissar, for selling the share of bansi dhar. the sale was to be completed by october 15, 1969. vide exhibit d2, the time of execution of sale deed was extended by two months by virtue of which the sale deed was to be completed by december 15,1969.5. in replication, it was pleaded that rameshwar son of bakshi ram, defendant had taken rs. 2,000/ from rameshwar son of surja ram, plaintiff, for payment to girdhari lal mortgagee and he had agreed that the mortgage will be redeemed after payment of mortgage money. however, this contract was not honoured by rameshwar son of bakshi ram and that plaintiffs did not get any amount as alleged by rameshwar and bhagirath sons of bakshi ram. from the pleadings of the parties, following issues were framed by the trial court:(1) whether the defendants nos. 2 to 4 are either tenants or licensees of defendant no. 1 as alleged if so to what effect opp.(2) whether the defendants nos. 2 and 3 are in possession of the suit property on the basis of agreement for sale as alleged if so to what effect opd.(3) whether the impugned mortgage deed dated 28.5.1965 was a simple mortgage as alleged if so to what effect opd.(4) whether the suit is bad for misjoinder and non-joinder of necessary parties? opd.(5) whether the suit is not maintainable in the present form opd.(6) whether there is a collusion between the defendant no. 1 and the plaintiff? if so to what effect opd.(7) relief. -6. at the trial issue no. 5 was not pressed. as such, the trial court after appreciation of the evidence led by the parties, decided all the issues in favour of the plaintiffs. the suit was decreed with costs and it was held that plaintiffs were entitled to get the possession of the house in dispute after payment of rs. 2,000/- to girdhari lal mortgagee.7. i have heard learned counsel for the parties and have carefully gone through the record as also the judgments of the courts below.8. it was argued by the learned counsel for the appellants that rameshwar and bhagirath sons of bakshi ram, appellants, were not in possession of the suit house as tenants or licensee of girdhari lal. they were in possession of the suit house by virtue of the agreement of sale exhibit dl and, as such, they were entitled to retain the possession of the house in their own right. it was further urged that when the possession of the suit house was delivered to the appellants in part performance of the agreement, they were entitled to the equitable relief enshrined in section 53a of the transfer of property act.9. on the other hand, it was argued by the learned counsel for the respondents that, in fact, the appellants were in possession of the house as tenants or licensees under girdhari lal mortgagee and once the mortgage is redeemed the tenants /licensees under the mortgagee are bound to go out of the house with the mortgagee who on redemption is to deliver the possession to the mortgagor. i have given my thoughtful consideration to the rival contentions but do not find any substance in the arguments of the learned counsel for the appellants. its pertinent to note that in support of his contention, the learned counsel for the appellants could not point out by evidence on record to show that the appellants were in possession of the house in dispute in their own right in pursuance of the agreement exhibit dl and they were not in possession as tenants or licensees under girdhari lal.10. the second limb of the contention that the appellants are entitled to the equitabte relief as provided under section 53a of the transfer of property act also does not carry any weight. by now, it is well established that a person in order to seek the relief as provided under section 53a of the transfer of property act, 1882, is required to prove the following essential ingredients :(1) that the transferor has contracted for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;(2) that the transferee has, in part performance of the contract, taken possession of the properly or any part thereof, or the transferee being already in possession continues in possession in part performance of the contract;(3) that the transferee has done some act in furtherance of the contract; and(4) that the transferee has performed and is willing to perform his part of the contract - nathulal v. phool chand, air 1970 sc 546.assuming that the appellants were in possession of the house in dispute in part performance of the agreement exhibit dl, though not proved, in order to take the benefit of section 53a of the transfer of property act, they are required to prove the essential ingredients which they could not. both the courts-below have consistently found as a fact that appellants were not in possession of the suit house in their own right in pursuance of the agreement exhibit d1, and were in possession either as tenants or licensees of girdhari lal, defendant no. 1. it was not disputed that at the time of execution of the agreement, exhibit d1, bansi dhar was minor who had half share in the suit house. rameshwar had agreed to sell the suit house on his own behalf and in behalf of his minor brother bansi dhar after obtaining the permission from the guardian judge, hissar, to sell the share of the minor, but the requisite permission was not granted. when ramesh was appeared as dw5 in the trial court, it was suggested to him that he may get the sale deed executed in respect of the half-share in the house, but he categorically stated that he was not ready to purchase that half share. that by itself goes to show that the appellants were not ready and willing to perform their part of the contract. the authorities, viz. dr. c.l . katial and ors. v. mrs. c w v maddan, aj.r. 1963 punjab 136, maruti gurappa and anr v. krishna bala and anr., a.i.r. 1967 bombay 34, chhanka ram v. rehman and anr., 1973 p.l.j. 641 and nagar khan and ors. v. gopi ram agarwala, a.i.r. 1976 patna 2, cited by the learned counsel for the appellants, in peculiar facts of instant case, are of no avail to the appellants. therefore, the appellants are not entitled to the protection under section 53a of the transfer of property act.11. consequently, the appeal being without merit, is dismissed. no costs.