Bachan Singh Vs. Sher Singh 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. - it was stated that the suit was not maintainable in the present form and was also bad for non-joinder of necessary parties; 26, had held that any change in khasra girdawaris without following the procedure laid down in the instructions issued by the financial commissioner for effecting change in the khasra girdawaris was bad in law.ashok bhan, j.1. plaintiff-respondent sher singh (hereinafter referred to as the plaintiff) filed a suit out of which the present revision petition has arisen under section 6 of the specific relief act, 1963, for possession in respect of land measuring 6 kanal 15 marlas and of the land measuring 4 kanals 17 marlas out of the land measuring 27 kanals 7 marlas bearing khewat no. 1200, khatoni no. 1878 and khasra no. 131 on the basis of possessory title. the suit was contested by bachan singh and other defendant-petitioners. the present revision petition has been filed by bachan singh petitioner defendant (hereinafter referred to as the defendant). shortly stated, facts are:2. plaintiff in his plaint averred that he was in possession of the land measuring 27 kanals 7 marlas for the last more than 12 years, that the said land 20 kanals belonged to punjab wakf board. out of the said land 20 kanals land was cultivable while rest of the land was lying uneven and the plaintiff made the same cultivable. it was further averred that land measuring 20 kanals was on lease with him from the wakf board which was renewed from time to time and the remaining land was in his possession as he occupied the same.3. defendants resisted the claim of the plaintiff in the written statement filed by them through their counsel. it was stated that the suit was not maintainable in the present form and was also bad for non-joinder of necessary parties; that the suit had become infructuous as the possession had been delivered to the defendants legally by the punjab wakf board. on facts, it was stated that the defendants were in possession of the land in suit as per the revenue record for the last more than 30 years. it was denied that the defendants had taken possession of the land in suit forcibly.4. from the pleadings of the parties, following issues were framed by the trial court:-1. whether the plaintiff was in possession of the suit land for a period more than 12 years? opp2. whether the defendants have encroached upon the suit land forcibly on 15.8.1987 as detailed in para no. 2 of the plaint? opp3. whether the plaintiff is entitled to the possession of the suit land? opp4. whether the suit is not maintainable in the present form? opd5. whether the suit has become infructuous? opd6. relief.5. on issues no. 1 and 2 which were dealt-with together, trial court found that the plaintiff was in possession of the suit land for more than 12 years and the defendants had encroached upon the suit land forcibly in august 1987. issue no. 3 was decided against the defendants and in favour of the plaintiff. on the basis of findings recorded on these issues, it was held that suit of the plaintiff deserved to be decreed partly for possession of land measuring 7 kanals 7 marlas out of the land measuring 27 kanals 7 marlas. being aggrieved, defendants have filed the present revision petition.6. i have heard the counsel for the parties at length.7. a perusal of the revenue record shows that the plaintiff was shown to be in possession for the last more than 20 years immediately prior to august 1987. a reference in this regard may be made to exs. p. 19, p. 20 and which are jamabandis and khasra girdawaris in which the possession of the plaintiff has been recorded. according to the revenue record, defendants came in possession of the suit land in kharif 1987. earlier the entries of kharif 1987 were in favour of the plaintiff but later on were changed on the basis of an inspection held by assistant collector iind grade. it has not been shown as to how the defendants came in possession of the suit property. it has not been shown as to how the khasra girdawaris came to be changed in the year 1987. this court in amal kumar and ors. v. bhupinder singh and ors., 1976 p.l.j. 26, had held that any change in khasra girdawaris without following the procedure laid down in the instructions issued by the financial commissioner for effecting change in the khasra girdawaris was bad in law. it was held therein as under :-' the financial commissioner has prescribed the mode for effecting changes in the existing khasra girdawaris. according to the instructions, it is the duty of the patwari before making any change in the existing entry at the time of harvest inspection to notify in writing the person or persons likely to be adversely affected by such a change of the entries and retain on record proof of the notifications. further, the changes so made should be attested by thee lambardar or the panch of the village. entries made in violation of the said instructions shall be treated null and void at the time of attestation of the jamabandi or at an earlier stage. under section 11 of the punjab land revenue act, the financial commissioner has the general power of superintendence and control over all revenue officers and in that capacity, he has got a right to issue such instructions. these instructions have been issued to put a curb on the unrestricted powers of the patwaris to manipulate the khasra girdawaris in the way they desired.it is the duty of the patwari before changing the khasra girdawan and making an entry in favour of the tenant to inform the landowner so that he can come and contest the new entry, which is to be made by him, if he so desires.'8. in this case, admittedly the procedure as given in the instructions issued by the punjab financial commissioner under section 11 of the punjab land revenue act, 1858, has not been followed. plaintiff was shown to be in possession for the last more 20 years as per the revenue entries with regard to 7 kanals 7 marlas land. the trial court rightly decreed the suit filed by the plaintiff.9. for the reasons recorded above, i find no merit in this revision petition which is dismissed. no costs.