Gram Sabha Vs. Shiromani Gurdwara Prabandhak Committee - 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. - the committee was perfectly entitled to constitute itself as the managing committee under section 87(1) of the act. 3 as reproduced above also clearly indicates that defendant gram sabha was not in possession of the property in dispute. thirdly, as observed, the estimate of the income may differ as property efficiently managed may bring larger income the legislature never intended that the basis on which the board has to form it's opinion should be so flckering that different consequences may follow in different situations.a.l. bahri, j.1. on account of difference of opinion expressed by s. s. grewal, j and g. r. majithia, j. the matter has come up before me.2. shiroraani gurdwara parbandhak committee (for short called 'the s. g. p.c.') filed a suit for possession of land in dispute against gram sabha, dhade, under section 25 a of the sikh gurdwara act, 1925 (hereinafter called 'the act'), inter alia, alleging that siri gurdwara sahib' buij-wala dhada, tehsil and district bhatinda, was a notified guidwara and the petition filed under section 10 of the act by the gram sabha had been dismissed and the suit should be decreed against the gram sabha. the suit was contested by the gram sabha, inter alia, asserting that the gram sabha was not in possession of the property the suit was time-barred and was not maintainable. on the pleadings the following issues were framed :-(1) is the suit within time opp.(2) is the suit not maintainable opd.(3) does the suit not lie because the property declared to be the property of the gurdwara is already in possession of the gurdwara and not in possession of the defendants opd.3. issue no. 1 was decided in favour of the plaintiff. the suit was held to be within time. under issue no. 2 the suit was held to be maintainable. under issue no. 3 it was held the gurdwara was entitled to remain in its possession as dohlidar. ultimately the suit was decreed. the appellant gram sabha has come up in appeal.4. s. s. grewal, j. held that since the income from the land did not exceed more than rs. 3 00/- per annum, the s. g. p. g. was competent to take a decision to constitute itself as managing committee of the gurdwara in dispute and file a suit and thus the suit was maintainable. it was further held that the 'gurdwara' was entitled to remain in possession of the land in dispute as dohlidar. it was so held by the sikh gurdwara tribunal in its judgment dated december 19.1973 in petition no. 601 of 1966, gram sabha dhade v. s. g.p.c. amritsar, exhibit p-2, and thus ordered dismissal of the appeal. with respect to the finding that the suit was within time he agreed with the view expressed by g. r. majithia, j on the other band g. r. majithia j., holding the suit to be within time, expressed the view that the suit was not maintainable as the income of the gurdwara was more than rs. 3000/- and the s. g. p. c: was to nominate a committee for management of the gurdwara in dispute under section 87 (1) (a) of the act. reference was made to the decision of the division bench in jalaur singh and anr. v. shiromani gurdwara parbandhak committee, amritsar1, decided on october ; 8, 1975, wherein it was observed that the income of the gurdwara being virtually nonexistent; the committee was perfectly entitled to constitute itself as the managing committee under section 87(1) of the act. this view was upheld by the full bench in gurdwara sahib padshahi daswin tittarsar v. mahant kesar singh chela tirath singh of gurdwara sahib tittarsar 2, and observed that the ratio of the decision aforesaid was that income of the gurdwara was to be taken into consideration and since evidence was produced in the present case that the mahant had let out the land of the gurdwara for a sum of more than rs. 3000/- per annum, the s. g. p. c. was required to nominate committee of management for the gurdwara in dispute and could not convert itself as committee of management of the gurdwara in dispute and thus was not competent to file the suit5. on going through the evidence produced, it was observed by g. r. majithia, j. that in the revenue records in the column of possession the entry was m the name of 'dohli be ehtmam kishan singh mahant dohlidar'. the defendant gram sabha was, the owner of the disputed property, but the mahant was the dohlidar entitled to remain in possession as such as long as he fulfils the conditions for grant of dohli. thus decree for possession could not be passed in this case since on the facts proved mahant was in possession as dohlsdar. the appeal was to succeed while setting aside the judgment and decree of the tribunal.6. i have gone through the judgments of the two hon'ble judges, referred above, and i am of the view that the appeal deserves to be allowed while setting aside the judgment and decree of the tribunal on the short ground that it was neither alleged in the plaint that gram sabha was in possession of the property in dispute nor the same was admitted by the defendant in the written statement to be so. the frame up of the issue no. 3 as reproduced above also clearly indicates that defendant gram sabha was not in possession of the property in dispute. that being the position it was unnecessary to refer to the evidence produced in the case as to who was actually in possession of the land which was owned by the gram sabha of which rights of dohlidar were being claimed either by the gurdwara in dispute or by mahant kishan dass. learned counsel for the sgpg referred to the decision of the tribunal made on a petition filed under section 10 of the act between gram sabha and the sgpc. a perusal of the judgment aforesaid does not indicate that gram sabha was in possession of the land in dispute. the entries in the revenue records, as already reproduced above, was interpreted to mean that mahant as mohatmin of the gurdwara was recorded as being in possession of the land. it is not considered appropriate in the present suit to make any comment with respect to such revenue records as mahant kishan dass or his legal heirs are not parties in the present suit. it is argued by the learned counsel for the sgpc that a petition filed by mahant kishan dass abated as his legal heirs were not brought on record. be that as it may, no comment is considered necessary either with respect to the finding recorded by the sikh gurdwara tribunal on the petition filed under section 10 of the act filed by gram panchayat against the sgpc or with respect to abatement of the petition filed by mahant kishan dass. suffice it to say that since in the present case there is no plea that gram sabha is in possession of the land of the gurdwara obviously no decree for possession against the gram sabha could be claimed or passed in that view of the matter the final conclusion arrived at by g. r. majithia, j. with respect to allowing of the appeal and dismissing the suit filed by the sgpc is correct.7. with respect to the interpretation of section 87(1)(a) of the act, the view expressed by g. r. majithia, j. is not in accordance with the view expressed by the full bench in the case referred to above. the following passage from the full bench decision may be reproduced :-'it would thus be seen that the moment the provisions of part iii of the act are made applicable to sikh gurdwara the stage is arrived for the constitution of the committee keeping in view the provisions of sections 86 and 87(1)(a) and (b) of the act it is at that stage that the board has to sec whether a committee should be nominated or elected one. for coming to that conclusion the board has to take into consideration the gross annual income of the gurdwara or gurdwaras. the income which actually is to fall in the hands of the committee who has to administer the gurdwara in accordance with the provisions of part iii can be the only basis for seeing whether the income of the gurdwara exceeds three thousand rupees annually or not the income from the property which has not passed hands along with the institution and regarding which the suit for possession or other litigation has yet to be fought cannot be taken into consideration for the purposes of section 87(1)(a) and (b) of the act for the simple reason that in that case the income which has not actually accrued will only be an estimated income which can be expected to have accrued or may accrue in future. such estimate is bound to be different in different situations.'8. learned counsel for the appellant argued that it was the income of the gurdwara which was to be taken into consideration by the s.g.p.c. in order to decide whether it itself was to act as committee of management or to nominate one. since as per evidence produced that the land of the gurdwara was being let out and income was more than rs. 3000/- per annum, the s.g.p.c. was to nominate a committee for the management of the gurdwar a in dispute without taking into consideration as to whether any income was going to the coffers of the sgpc or the committee to be nominated. such an argument was also addressed before the full bench in the case supra and harbans lal, j. accepted the same. however, the majority view did not accept the same. in para 33 of the judgment the contention was repelled by observing as under: -'if the contention of the learned counsel for the respondent is accepted that the income has to be calculated from all the property to which the gurdwara may have a claim that will frustrate the very purpose of the act. firstly, this conclusion is not warranted from the wording of the provisions of section 87(1) (a) and (b) of the act in which the word 'income' has been used in its ordinary sense. as in that case the estimate will not be that of the income of the gurdwara but will be regarding the estimated income of the gurdwara which may or may not accrue at a subsequent period. secondly, the relevant point of time for applying the determining test of provisions of section 87 (1) (a) and (b) of the act will be when the provisions of part i'll are made applicable and the committee of the gurdwara shall have to be constituted on the basis of speculated income if the interpretation as put forth by the learned counsel for the respondent is accepted at that juncture even though the same may not be the income. thirdly, as observed, the estimate of the income may differ as property efficiently managed may bring larger income the legislature never intended that the basis on which the board has to form it's opinion should be so flckering that different consequences may follow in different situations.'9. after observing as above, it was held that the view expressed in jalaur singh's case will not become redundant. the contention of counsel for the appellant, therefore, cannot be accepted that the s.g.p.c. should have nominated committee for management of the gurdwara keeping in view the expected income from the land of the gurdwara. factually the possession of the land did not pass to the s.g.p.c. alongwith the gurdwara hence no income was accruing to the s.g.p.c. i.e. committee of management of the gurdwara and thus the s.g. p.c., in exercise of power under section 87(1) (a) proviso could take a decision to constitute itself, a committee of management for the gurdwara in dispute.10. the s. g.p.c. thus rightly constituted itself a committee for management of the gurdwara in dispute while passing resolution exhibit p. 1 as no land of the gurdwara passed to the committee and no income came into the hands of the committee which could be more than rs. 3000/- to attract the provisions of section 87 (!) (a) to nominate the committee of management of the gurdwara in dispute. in that respect the view expressed by s. s. grewal. j. is correct and in accordance with the ratio of the decision of the full bench referred to above.11. for the reasons recorded above, this appeal is allowed. the judgment and decree of the sikh gurdwaras tribunal is set aside and the suit filed by the s.g.p.c. for possession of the land in dispute against the gram sabha, dhaca, is dismissed. there will be no order as to costs.