Karam Singh (Died) Through Lrs. Vs. Chaudhri Auto Division - Court Judgment

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- 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. - 400/- as rent for all the three shops upto 25.9.1978 have executed this rent deed to the effect that i will continue paying rent every month like this to the owner. the proposition in law is well settled and is not to be controverted. this evidence of the petitioner's own witness coupled with the above said facts clearly shows that walls, if any, were removed. 10. for these reasons, the revision petition being without merit must fail and is dismissed.v.s. aggarwal, j.1. the present revision petition has been filed by karam singh (since deceased) and now represented by legal representatives against the order of the learned rent controller, hoshiarpur dated 22.12.1980 and of the appellate authority, hoshiarpur dated 6.11.1982. the learned rent controller had dismissed the petition for eviction and the order was upheld by the appellate authority. 2. the relevant facts are that petition for eviction had been filed by karam singh against the respondent-m/s. chaudhri auto division. it was asserted that the property in question which comprises of three shops was let out to the respondent on a monthly rent of rs. 400/- vide rent note dated 26.8.1978. shri r.k.k. chaudhary had executed the rent note. the respondent was alleged to be in arrears of rent since 26.9.1978 and converted three shops into one by removing the intervening walls without the consent of the landlord. it was in this process that it was asserted that value and utility of the premises has been impaired. 3. the respondent contested the eviction petition. according to the respondent, property had been let out for purposes of a show room. three shops were converted in to one shop by the agent of the petitioner because the purpose of the tenancy was to run a showroom. it was denied, therefore, that value and utility of the property has been impaired. 4. on framing of the issues, the learned rent controller had recorded the evidence. it was held that tender of arrears of rent was valid. it was further held that the respondent has not impaired the value and utility of the property. it was concluded that it was let out as a show-room and intervening walls had been removed with the consent of the petitioner. accordingly, the eviction petition was dismissed. an appeal was preferred and the appellate authority agreed with the findings of the learned rent controller. hence, the present revision petition. 5. the short question which was only agitated during the course of arguments was as to whether the intervening walls which admittedly had been removed from the three shops had been so removed with the consent of the petitioner or not 6. on behalf of the petitioner it had vehemently been urged that as per rent agreement, three shops had been let out. oral evidence contrary to the terms of the written agreement will not be considered and further that within 3 months of the letting out of premises, the petition for eviction had been filed which indicates that permission had never been granted to remove the intervening walls. on the contrary respondent's learned counsel highlighted that it was let out for a show room. the petitioner's son had attended the opening ceremony and the walls were removed with the implicit consent of petitioner's son. he also urged that it is a finding of fact arrived at by the learned rent controller and the appellate authority which should not be disturbed in the revision petition because there is no illegality or impropriety in arriving at those findings. 7. learned counsel for the petitioners had made available the translation of the rent deed which reads:- 'i am manager of m/s. chaudhary auto engine, jalandhar road, hoshiarpur, near polytechnical college through r.k.k. chaudhary, proprietor. it is situated in the abadi, jalandhar road, gokal nagar, hoshiarpur. there are three single storeyed shops bounded as under:- east: shop of the owner. west: plot of sohan singh. north: road.south: kothi of the owner.it is in the ownership of sh. karam singh, son of sh. tara singh, ramgaria by caste, resident of gokal nagar, hoshiarpur. i have taken all the three shops on rent at the rate of rs. 400/- per month since 26.8.1978. now, i having received rs. 400/- as rent for all the three shops upto 25.9.1978 have executed this rent deed to the effect that i will continue paying rent every month like this to the owner. i shall receive the receipt in lieu of the payment or make an entry on the back of the rent deed. nothing will be demanded apart from this. i will not effect any demolition or construction etc. in the shops without the consent of the owner. i shall hand over the possession of the shops at the time of eviction in the same condition in which i have received. i shall pay the electricity bill besides the rent. i shall not further sublet the said shops to any person. i have taken the above mentioned shops for running the show room. hence, i have executed this rent deed so that it may serve as an authority at the time of need. dated 26.8.1978 the word ' manager' in line no. 2 may be read as correct. the above mentioned shops have been taken on rent for 11 months'. perusal of the same certainly shows that specifically there is no mention that intervening walls of the three shops can be removed. but it has been mentioned that the shops have been taken for running of the show room. it obviously implied that one show room had to be set up and not three show room in three shops. it had to be described as three shops because admittedly at the time when the same were let out, there were three shops as such. 8. reliance was placed on the decision of this court in the case of ram chander v. mangal singh and anr., air 1981 punjab and haryana 94. in the cited case terms of the lease had been reduced into writing. it was held that oral evidence to prove existence of lease different from written agreement cannot be taken into account. the proposition in law is well settled and is not to be controverted. but when the lease deed itself as mentioned above shows that one show room has to be set up, then certainly if walls are removed it will be deemed to be with the consent of the landlord or not. 9. learned counsel for the petitioner had drawn the attention of the court to the facts that in the written statement filed, the respondent had pleaded that premises were taken on rent for purposes of a show room and has converted into a show room by the petitioner's agent himself and the respondent did nothing as alleged. according to him this is contrary to the evidence produced by the respondent. shri r.k. k. chaudhary, manager of the respondent appeared as rw-1. he stated that intervening walls were not removed by him. pardip singh had removed those parda walls and then the premises were given on rent. he had obtained the premises on rent for purposes of a show room. raj kumar rw-2 further deposed that rent was settled at rs. 400/- p.m. son of karam singh had got the parda walls removed. thus, the evidence in not very different from what has been pleaded. in fact petitioner's witnesses lashkar singh aw-3 admitted that when the respondent had converted the three shops into one shop, he was present. pardip singh attorney of the petitioner was also present at the spot. he has not raised any objection. he even admitted that respondent started the business after converting the same into a show room. this evidence of the petitioner's own witness coupled with the above said facts clearly shows that walls, if any, were removed. but it cannot be stated that these were removed without the consent of the petitioner. the findings of fact in this regard, therefore, require no disturbance. 10. for these reasons, the revision petition being without merit must fail and is dismissed.