Ranjit Kaur and ors. Vs. Jaipal Singh 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. - aw 3 mohinder singh is no doubt the brother of the two deceased, jaswant singh and darshan singh, but he has clearly come forth with a plausible explanation to account for his presence there at that time. gurmit kaur 1979 acj 170 (p&h), 16' would clearly be the appropriate multiplier to be applied. the tribunal clearly fell in error in absolving the insurance company from liability on the ground that the claimants had not been able to prove that the truck driver jaipal singh had a valid driving licence and that he was an employee of the truck owner, som pal. the insurance company in the present case is thus clearly liable for the entire amount awarded as compensation to the claimants. the amount payable to the minor claimants shall be paid to them in such manner as the tribunal may deem to be in their best interest.s.s. sodhi, j. 1. three persons travelling on the motor cycle pul 6560, namely, the two brothers jaswant singh and darshan singh as also harpal singh who was driving it, were killed in a road accident that occurred near village gill on the ludhiana-malerkotla road. this happened at about 3.30 p.m. on january 13, 1983.2. according to the claimants, they being the widows and the children of jaswant singh and darshan singh deceased, the accident took place when the truck pux 6775 coming from the opposite direction, being driven in a rash and negligent manner, came on to the wrong side of the road and hit into the motor cycle.3. the truck driver jaipal singh and som pal, the owner thereof, however, denied that the truck had struck against the motor cycle of the deceased and instead put forth the plea that jaipal singh had been falsely implicated in this accident at the instance of mohinder singh son of mool singh and randhir singh son of hazura singh, in order to claim compensation for the dependants of the deceased.4. the case of the claimants rests upon the testimony of aw 3 mohinder singh and aw 5 randhir singh, who deposed that they were going along the road and were near village gill when the truck pux 6775 being driven in a zigzag manner passed them at a very fast speed. the motor cycle driven by harpal singh was coming from the opposite direction and the truck went and struck against it. the motor cycle got entangled with the front portion of the truck as a result of which the truck stopped after covering some distance. the truck, at that time, was being driven by jaipal singh, who ran away from the spot after causing this accident.5. soon after the occurrence, aw 3 mohinder singh deposed that he left to inform the police of this accident. he met the police party near a chowk in the area of village gill where he made his statement on the basis of which the first information report exh. a-1 was recorded.6. the only witness, who came forth to depose to the accident from the side of the respondents, was rw 1 jaipal singh, the truck driver, who deposed that he was going from hamira to nabha when on reaching village gill, he saw a mob standing in the middle of the road. he thereupon stopped his truck. the mob asked him to take the injured persons to the hospital, but he expressed his inability to do so as his truck was already loaded. the mob then started quarrelling with him. he further deposed that he had been falsely implicated in this case at the instance of mohinder singh and randhir singh and denied that his truck was involved in the accident.7. the tribunal, after taking into account the evidence on record, however, came to the finding that the accident had not taken place on account of the rash and negligent driving of the truck and consequently held that the claimants were not entitled to any compensation. this finding cannot indeed be sustained.8. a reading of the testimony of aw 3 mohinder singh and aw 5 randhir singh would show that both these witnesses have given a straightforward and consistent account of the occurrence and counsel for the respondents could point to no discrepancy or contradiction to create any doubt therein. aw 3 mohinder singh is no doubt the brother of the two deceased, jaswant singh and darshan singh, but he has clearly come forth with a plausible explanation to account for his presence there at that time. what is more, valuable corroboration to the testimony of both these witnesses is to be found in the first information report, which was lodged with the utmost promptitude. what is recorded there is again in consonance with the testimony of these two eye-witnesses. it is also pertinent to note that there is no suggestion to account for either of these witnesses seeking to falsely implicate jaipal singh in this accident.9. turning now to the respondents' case, it must, at the very outset, be noticed that the reason for false implication, as given by jaipal singh in the witness-box, namely, that the mob wanted him to take the injured to the hospital and his refusal to do so is quite at variance with the plea put forth in his return where it was said that he had been falsely implicated in order to enable the dependants of the deceased to recover compensation.10. it is also pertinent to note that jaipal singh admitted in his cross-examination that he had been challaned under section 304a of the indian penal code for this very accident and had been arrested by the police too, but significantly, he had not moved any application to any higher authorities regarding his alleged false implication in this accident. he was constrained to admit that he had not even made statement in court regarding his alleged false implication.11. next to note is the photograph now marked 'x' taken soon after the accident showing the position of the truck and the motor cycle. this photograph has now been admitted as additional evidence on the application of the claimants to which no objection was raised by the counsel for the respondents.12. considered in the totality of the circumstances of the case and the evidence on record, there can be no escape from the conclusion that there was indeed an accident between the motor cycle and the truck and that it was caused by the rash and negligent driving of the truck. the finding to the contrary of the tribunal is accordingly hereby set aside.13. turning now to the quantum of compensation payable to the claimants, the evidence on record shows that jaswant singh deceased was 40 to 42 years of age at the time of his death, while his younger brother darshan singh was only 25 years old. both brothers died leaving behind young widows and minor children. according to aw 1 ranjit kaur, the widow of jaswant singh and aw 2 paramjit kaur, the widow of darshan singh, they and their children were solely dependent upon their deceased husbands. further, that both jaswant singh and darshan singh were engaged in the cultivation of land. it was claimed that besides cultivating some land, which they owned, they also used to take other land for cultivation on contract. besides this, it was said that they also supplemented their income by sale of milk and poultry. no evidence is, however, forthcoming to corroborate the statements of the widows with regard to the ownership or cultivation of land or the extra income from poultry or selling of milk. this being so, no exception can be taken to the tribunal assessing the loss to the dependants by calculating the earnings of the deceased on the basis of them being agricultural labourers.14. keeping in view the general level of agricultural wages around the time when the present accident took place and the fact that such occupation is, by its very nature, seasonal and also the aspect of the amount that the deceased would have spent upon themselves had they lived as also the circumstances of the claimants and their expenses of maintenance that the deceased were meeting, it would be fair and just to assess the loss to the claimants at rs. 5,000/- per annum in both cases. keeping in view the principles laid down by the full bench in lachman singh v. gurmit kaur 1979 acj 170 (p&h;), '16' would clearly be the appropriate multiplier to be applied. so computed, the compensation payable to the claimants in each case would work out to rs. 80,000/- which they shall, of course, be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded.15. the liability for the payment of the amount awarded shall be joint and several and all the respondents, including the respondent insurance company, namely, the national insurance co. ltd. the tribunal clearly fell in error in absolving the insurance company from liability on the ground that the claimants had not been able to prove that the truck driver jaipal singh had a valid driving licence and that he was an employee of the truck owner, som pal. it is settled law that such a burden does not lie upon the claimants. if the insurance company seeks to avoid liability on such ground, the burden lies upon it to establish it. the insurance company in the present case is thus clearly liable for the entire amount awarded as compensation to the claimants.16. in the result, the claimants ranjit kaur, harpal singh and balraj singh are hereby awarded a sum of rs. 80,000/- along with interest at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded. out of the amount awarded, a sum of rs. 15,000/-each shall be payable to the minor claimants and the balance to their mother ranjit kaur. similarly, a sum of rs. 80,000/- is hereby awarded to paramjit kaur and her minor children guddi and kaka along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. out of the amount awarded, a sum of rs. 15,000/- each shall be paid to guddi and kaka and the balance to their mother paramjit kaur. the amount payable to the minor claimants shall be paid to them in such manner as the tribunal may deem to be in their best interest.17. both the appeals are thus hereby accepted with costs. counsel's fee rs. 500/-one set only.