Luxmi Chand Vs. the State of Haryana Through the Deputy Secretary Co-operation 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.t.h.b. chalapathi, j.1. this writ petition is filed challenging the award passed by the assistant registrar of c-operative societies dated march 30, 1982, (annexure p-2).2. respondent no, 3 entered into an agreement with luxmi chand, the manager of the nuh primary co-operative land development bank limited, district gurgaon, for supply of diesel engines to the members of the bank on credit. on the ground that respondent no. 3 committed irregularities in supplying diesel engines the managing committee of the bank black listed the firm and adjusted the security furnished by the firm towards the loan instalments of the complainant one shri rahimuddin. thereafter, the firm filed an application before the assistant registrar of co-operative societies raising a dispute under sections 55 and 56 of the punjab co-operative societies act. by the impugned order the assistant registrar, cooperative societies, directed the petitioner to pay a sum of rs. 2,000/- which was illegally adjusted by the manager luxmi chand towards the loan amount of shri rahimuddin. the award passed by the assistant registrar shows that he exercised his powers under section 55 and 56 of the act. the appeal filed by the petitioner was rejected on the ground that the dispute raised by the firm will not come within the purview of either section 55 or section 56 of the act and any dispute between the parties has to be referred to the registrar of co-operative societies, haryana, under the agreement which was entered between the parties and, therefore, no appeal lies and accordingly the appeal was rejected, however, the petitioner was given the liberty to challenge the dispute before the competent authority. therefore, the petitioner has approached this court.3. in this writ petition, the only point to be decided in whether the assistant registrar is competent to decide the dispute between respondent no. 3 and the petitioner. admittedly, an agreement was entered between respondent no. 3 and the respondent no. 4 for the supply of agricultural machinery to the farmers of the area who were the members of the bank. the security amount was forfeited in pursuance of the agreement entered between the parties. clause 9 of the said agreement provides as follows:-'in case of any dispute between the parties, the matter will be referred to the registrar, co-operative societies, haryana, for arbitration and his decision will be final and binding on the parties.'the assistant registrar, co-operative societies, purported to exercise his power in a petition filed by respondent no. 3 under section 55 of the punjab co-operative societies act, 1961. under the said section,'if any dispute touching the constitution, management or the business of a co-operative society arises-a) among members, past members and persons claiming through members, past members and deceased members; orb) between a member, past member, or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present; orc) between the society or its committee and past committee, any officer, agent or employee, or any past officer, agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society; ord) between the society and any other co-operative society, between a society and liquidator or another society or between the liquidator of one society and the liquidator of another society;such disputes shall be referred to the registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.'4. admittedly, the dispute in this case is not between the members or past members of the society or between the members and the society or its committee or officer or between the society and its employees or between the two co-operative societies. this is a dispute raised by the firm which entered into an agreement with the bank for supply of agricultural machinery. therefore, such a dispute is not covered by section 55 of the act. so, the assistant registrar cannot decide the dispute under section 55 of the punjab co-operative societies act.5. clause 9 of the agreement provides that any dispute between the parties to the said agreement will be referred to the registrar of co-operative societies, haryana for arbitration and his decision will be final and binding on the parties. it is, therefore, to be seen whether the assistant registrar can be deemed to be the registrar for the purposes of clause 9 of the agreement. admittedly, there is a registrar of the co-operative societies for the state of haryana but the registrar was defined in section 2(j) of the punjab co-operative societies act according to which registrar means a person appointed to perform the functions of the registrar of co-operative societies under this act.therefore, any other person who has been appointed to perform the functions of the registrar under this act can also be deemed as registrar for the purposes of the act only. the dispute which was raised by respondent no. 3 is not the dispute while deciding the dispute between the respondent no. 3 and the petitioner and the bank is not discharging or performing the functions of the registrar under the act. the dispute is outside the purview of the co-operative societies act in which case the assistant registrar has no power to decide the same. it is the person who has been named as the arbitrator, alone, has the power to decide the dispute. the person named in the agreement is the registrar, co-operative societies, haryana. therefore, the assistant registrar cannot decide the dispute raised by the private party claiming any relief either against the society or its employees. it is the arbitrator who has been named in the agreement alone has the power to decide such a dispute.6. in this view of the matter, i am of the opinion that the orders of the assistant registrar, co-operative societies in exercise of his powers under section 55 of the act are liable top be quashed as those orders have been passed without jurisdiction. therefore, the award passed by the assistant registrar, dated march 30, 1982, is hereby quashed.7. writ petition is accordingly allowed.