Haryana State Through the Chief Secretary to Haryana Government Vs. Chander Singh (Deceased) and ors. - 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. - even in appeal filed before the commissioner, ambala division, he remained unsuccessful as the commissioner upheld the order of ejectment. 8. in view of the above discussed legal position, the orders passed by the collector and the commissioner for the ejectment of chander singh from the suit land were clearly illegal and without jurisdiction and were as such, rightly so declared by the trial court and the first appellate court.kiran anand lall, j.1. in this regular second appeal, the appellant-state has challenged judgment and decree dated 9.8.1982 of the learned additional district judge, sonepat vide which he upheld the verdict of trial court decreeing the suit of chander singh plaintiff (since deceased) for possession of the suit land. chander singh having died. dharam pal etc. were substituted as his legal representatives.2. the claim of chander singh, in the suit, was that he had been in possession of the suit land, as a tenant under its previous owner viz, the proprietary body of village purkhas, since kharif 1967, and prior to him, his father was tenant on it since the year 1954. later on, the appellant-state became its owner and mutation was sanctioned in its favour on 31.7.1971. but, possession over it, even thereafter, remained to be his. however, the appellant-state got an application under section 4 of the punjab public premises and land (eviction & rent recovery) act, 1973 (for short 'the act') filed for his ejectment on the ground that this possession over it was unauthorised. the collector, sonepat allowed the application and ordered his ejectment vide order dated 24.7.1974, copy ex.p2. even in appeal filed before the commissioner, ambala division, he remained unsuccessful as the commissioner upheld the order of ejectment. he, thereupon, filed civil writ petition no. 4585 of 1975 for the quashing of orders of the collector and the commissioner, and obtained stay order against his ejectment, on 5.8.1975. inspite of that, the appellant took forcible possession from him and got a fictitious entry made in the rojnamcha of the patwari, indicating that possession had been taken from him on 14.7.1975, in execution of the ejectment order. the proprietary body of the village filed a suit against the appellant-state for cancellation of the mutation, while chander singh filed the present suit against it, for obtaining possession of the land.3. in written statement, the appellant-state admitted that chander singh had remained in cultivating possession of the suit land, as a tenant under the proprietary body of the village, from kharif 1968 upto 30.7.1971 i.e. the date it was mutated in its (of appellant) favour. it was further admitted that the possession of land continued to remain with chander singh even after the appellant became its owner. but it was pleaded that the revenue authorities delivered possession of the land to the state, on 14.7.1975, in execution of the ejectment orders. it was denied that chander singh had been dispossessed on 6.8.1975.4. both the courts below found that the suit land had remained in the possession of chander singh, as a tenant, since kharif 1967. the trial court further found that he was dispossessed therefrom on 6.8.1975 while the first appellate court slightly modified this finding by holding that he was dispossessed on 14.7.1975 i.e. before the passing of stay order in the writ petition.5. i have heard mr. alok jain, learned counsel for the appellant-state, and mr. j.l.malhotra learned counsel for the respondent and have also carefully gone through the records.6. as stated above, it is admitted case of the appellant-state that chander singh remained in cultivating possession of the suit land from kharif 1967 to 30.7.1971, as a tenant under the proprietary body of the village and further, that he continued to remain in possession even after its ownership was mutated in the name of appellant-state. the revenue records including the copy of jamabandi ex.pl also show that the land remained in his possession as a tenant, since kharif 1967. the appellant had admitted this fact even in ex.p4 which is copy of written statement filed by it in a suit filed against it by the proprietary body of the village. it may also be mentioned that in the present suit, it was. not the case of the appellant, in the written statement that chander singh had ceased to be a tenant on the land before the ejectment order was passed against him on 24.7.1974.7. the position which, therefore, emerges is that chander singh had entered into possession of the suit land as a tenant much before the appellant-state became its owner and he continued to remain in its possession even after it was mutated in the name of the appellant. in other words, he was in authorised possession of the land when the ejectment order under section 4 of the act was passed against him. as such, by no stretch of imagination, he could be termed as an unauthorised occupant over it, at the time ejectment proceedings were started against him. that being so, the provisions of section 4 of the act could not be made applicable to him for seeking his ejectment on the ground of being in unauthorised occupation of public premises. reference in this connection may be made, with advantage, to air 1973 supreme court 66 raj kumar devinder singh and anr. v. state of punjab and ors., wherein it was held that if a person was in possession of the property, before the date of the sale of the property to the government, it could not be said that he entered into possession of public premises, for, at the time when he was in occupation of the property,the property was not public premises and clause (a) of section 3 of the punjab act no. 31 of 1959 cannot obviously apply. the ratio of this case is fully applicable to the facts of the present case, as the definition of unauthorised occupation of public premises in the punjab act and the one in the haryana act is the same. it was also held in the case of raj kumar devinder singh and another (supra) that the collector would get jurisdiction to issue a notice under section 4(1) of the act only when the person to whom notice is given is in unauthorised occupation of the property in question and not otherwise and that the issue of notice by the collector to the person who is not in unauthorised occupation of the public premises, as defined in section 3 of the act, is without jurisdiction and is liable to be quashed. this case applies on all fours to the facts of the case in hand.8. in view of the above discussed legal position, the orders passed by the collector and the commissioner for the ejectment of chander singh from the suit land were clearly illegal and without jurisdiction and were as such, rightly so declared by the trial court and the first appellate court.9. admittedly, chander singh was dispossessed from the suit land in execution of the ejectment orders. and, as those ejectment orders were illegal and without jurisdiction, his dispossession from the land was also illegal. that being so, both the courts rightly held that he was entitled to get back possession of the land.10. there is, thus, no merit in the appeal and the same is dismissed, leaving parties to bear their own costs.