Sher Singh Vs. State Bank of Patiala and anr. - 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. - however, for the reasons best known to the decree holder, the application was withdrawn and the warrants directing sale of the property were issued again. learned counsel for jd failed to show as to how these facts effect, the auction conducted as per law. learned counsel for jd failed to point out any infirmity in this regard. from these facts and my above discussion, the jd has failed to raise any valid objection to the auction proceedings. state bank of mysore, where it has been held that if jd alleges material irregularity or fraud in conducting the sale, the burden of proof is on jd to show that substantial injury resulted due to irregularities and fraud failure to do so, will entail dismissal of the application for setting aside the auction. the ratio of this authority is also applicable to the facts of present case as jd has failed to substantiate, his objections by any positive evidence. he has further contended that the executing court in it impugned order has failed to appreciate this entry of jamabandi and has illegally dismissed the objection of the jd-petitioner. it is further pertinent to mention that the jd-petitioner failed to point out to the executing court that the gair mumkin house situated in the khasra no. the executing court has specifically held that the jd-petitioner has failed to produce any evidence which may be sufficient to conclude that the jd-petitioner has a house on the land in question and it is occupied by him. therefore, the petitioner has failed to discharge the onus placed on him and has not been able to show that there is residential house in the land in question which is in his occupation.m.m. kumar, j.1. this revjsion petition is directed against the order dated 16.3.2002 passed by the civil judge (junior division), sunam dismissing the objections of the petitioner to the sale conducted on 28.1.2002.2. brief facts of the case are that judgment and decree dated 20.2.2001 was passed in civil suitno.83 dated 16.4.2002 decreeing the suit for a total sum of rs. 3,98,142/-. the decree holder-respondent filed an application seeking execution of the decree. it is during the execution proceeding that attachment orders were issued and the petitioner filed objections under order xxi rule 66 of the code of civil procedure, 1908 (for brevity the code) which were dismissed. thereafter the attached property was put to auction. warrants directing sale of the property were received back unexecuted with the report that no one was ready to bid for the property. thereafter, the bank filed an application under order xxi rule 12 of the code seeking permission of the court to itself bid at the auction. however, for the reasons best known to the decree holder, the application was withdrawn and the warrants directing sale of the property were issued again. sale was conducted on 28.1.2002 to which the jd-petitioner filed objection. the decree holder, however, pleaded for confirming the sale of the land. as per auction proceedings, the attached land of the jd-petitioner measuring 12 kanals 19 marlas were sold for rs. 3,20,000/- and the auction purchaser deposited on the spot a sum of rs. 80,000/ i.e. 174th of the total amount. the balance 374th of the amount was deposited in the court on 31.2.2002 i.e. within the prescribed period of 15 days as provided by order xxi rule 85 of the code. the executing court while dismissing the objection of the jd-petitioner held as under:-'the withdrawal of application under order 21 rule 72 cpc filed by d.h. does not vitiate the proceedings. learned counsel for jd failed to show as to how these facts effect, the auction conducted as per law. the jd has taken further objection that there was no publication as provided. however, perusal of sale warrants show that munadi was duly effected in the village and thereafter auction was conducted as per rules. learned counsel for jd failed to point out any infirmity in this regard. perusal of auction proceedings show that the details of auction proceedings have been given and names of the persons who bid at the auction is also given in the attached list. the names of father of those persons and residences are also given. there is no bar to bid at the auction by the persons resident out of the village. the jd has further pleaded that rate of land is more than rs. 4 lacs per killa. the d.h. on the other hand has placed on file certified copy sale deed dated 2.6.99 executed by jd sher singh whereby he has sold his land at the rate of rs. 1-172 lac per killa.jd has further took objection that his residential house is constructed in the disputed land and he has also installed electric motor. however, there is no evidence in this regard. no bill or pass book of electricity or any other process regarding the existence of house has been procured. moreover, the jd had taken the objection to the application under order 21 rule 66 cpc but he did not took such objection, at that time. it shows that he has taken these objections only to avoid auction proceedings. from these facts and my above discussion, the jd has failed to raise any valid objection to the auction proceedings. learned counsel for dh has also cited 2000(2) c.c.c. karnataka 184 rana enterprises, banglore and ors. v. state bank of mysore, where it has been held that if jd alleges material irregularity or fraud in conducting the sale, the burden of proof is on jd to show that substantial injury resulted due to irregularities and fraud failure to do so, will entail dismissal of the application for setting aside the auction. the ratio of this authority is also applicable to the facts of present case as jd has failed to substantiate, his objections by any positive evidence. the objections of jd to the sale are therefore, dismissed and sale in favour of auction purchaser. jaswant singh son of lakha regarding 12 kanals 19 marlas of land conducted on 28.1.2002 for rs. 3,20,000/- is hereby confirmed. 3. i have heard shri k.s. chahal, learned counsel for the petitioner who has raised a sole contention that under section 60(1) (c) and (ccc) of the code as added by the punjab and haryana amendment the only dwelling unit of the jd-petitioner cannot be made subject matter attachment of sale. the provision of section 60(1) (c) and (ccc) of the code reads as under:-'60. property liable to attachment and sale in execution of decree. - (1). the following property is liable to attachment and sale in execution of a decree, namely land, house of other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, government securities bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: provided that the following particulars shall not be liable to such attachment to sale, namely:- (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to agriculturist or a labourer or a domestic servant and occupied by him; (ccc) one main residential house and other buildings attached to it (with the material and sites thereof and the land immediately appurtenant thereto and necessary for this enjoyment) belonging to a judgment debtor other than a agriculturist and occupied by him; provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered. 4. relying on copy of jamabandi for the year 1999-2000 appended as annexure p-1, the learned counsel has pointed out that a perusal thereof reveals that there is a gair mumkin house and a gair mumkin motor in the area of khasra no. 35(0-15) and khasra no. 26(0-8) and the same cannot be made subject matter of sale or attachment. he has further contended that the executing court in it impugned order has failed to appreciate this entry of jamabandi and has illegally dismissed the objection of the jd-petitioner.5. having heard learned counsel and closely examining his submissions, i am constrained to observe that the same are devoid of any merit.6. a perusal of section 60(1)(ccc) of the code shows that the protection from attachment afforded to the residential house has not been extended to a property specifically charged with the debt sought to be recovered. in other words, if the judgment debtor has created a lien or charge over a residential house then the same shall not be granted the protection postulated by section 60(1)(ccc) of the code. in this regard, the note made in the remarks column of the copy of jamabandi for the year 1999-2000 reveals that khasra no. 35(0-15) which comprised gair mumkin house and khasra no. 26(0-8) which comprised gair mumkin motor in addition to other parcels of land comprised in various other khasra numbers, the total land being 12 kanals 19 marlas has been under the charge created in favour of state bank of patiala branch jakhepal. the note in the remarks column reads as under:-'note: vide rapat no. 384 dated 20.12.98 land comprised in killa no. l93//25 (1-18), 194//34 (0-4), 35(0-15), 226//5(7-4), 6/1(2-9), 26(0-8) is pledged against consideration of rs. 2,40,000/- in favour of s.b.q.p. branch jakhepal.'7. therefore, it is crystal clear that even if it is presumed for the sake argument thatthere is a house and motor in the land which is subject matter of sale the protection provided by section 60(1)(ccc) cannot be extended to the jd-petitioner because there is a specific charge created on the property as it postulated by section 60(1)(ccc) of the code. it is further pertinent to mention that the jd-petitioner failed to point out to the executing court that the gair mumkin house situated in the khasra no. 35 (0-15) is occupied by him. the executing court has specifically held that the jd-petitioner has failed to produce any evidence which may be sufficient to conclude that the jd-petitioner has a house on the land in question and it is occupied by him. the basic object of these provisions made under section 60(1) (c) and (ccc) is for the benefit of agriculturists, yet clause (ccc) withdraws that protection in cases where the property is specifically charged with the debt sought to be recovered.8. it is also clear that the burden to prove that the house or the building attached constituted his residential house and the same was in his occupation is on the judgment debtor. in this regard, the judgment of the delhi high court in main ram and sons and anr. v. elgin mills co. ltd. and ors., a.i.r. 1974 (delhi) 205 and brij mohan v. bank of baroda, a.i.r. 1988 (delhi) 321 can be cited in addition to the judgment of the karnataka high court relied upon by the executing court. therefore, the petitioner has failed to discharge the onus placed on him and has not been able to show that there is residential house in the land in question which is in his occupation. the revision petition is thus, liable to be dismissed.9. for the reasons recorded above, this revision petition fails and is dismissed.