Gaj Raj and ors. Vs. Kunj Bihari 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. - the submission of the counsel for the revision-petitioners, being without merit, must fail, and the same stands rejected. 11. for the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same, is dismissed.sham sunder, j.1. this revision-petition, under article 227 of the constitution of india, for setting aside the order dated 26.04.2008, passed by the motor accident claims tribunal, rewari, vide which, it dismissed the application, under order 9, rule 13 of the code of civil procedure, filed by the revision-petitioners, for setting aside the ex-parte award, dated 12.11.2002, has been filed by the revision-petitioners.2. the claim petition, arising out of motor vehicle accident, bearing mact case no. 68 of 19.3.1998/7.6.2000, titled as 'kunj bihari and anr. v. gajraj alias sahabu and anr. was decided exparte, on 12.11.2002, by the motor accident claims tribunal. in that petition, vide the exparte award dated 12.11.2002, compensation, in the sum of rs. 98,000/-, was awarded, alongwith interest, to kunj bihari etc. (now respondents).3. an application, was moved by the petitioners, for setting aside the ex-parte award, referred to above, on the averments, that they were arrayed as respondents, in mact case no. 68 of 1998, in the capacity of owner and driver of vehicle bearing no. rj-14g-5389, but they were never summoned, in that claim petition, at the address, given in the title of the petition by registered post, or through process server of the court. it was further stated by them, that they never engaged sh. a.k. gulati, as counsel, to defend their case. it was further stated that had there been a valid and proper service of the respondents, they would have come present, in the court, and participated in the proceedings. it was further stated that they would have furnished the driving licence of respondent no. 1, registration certificate of the offending vehicle, and insurance particulars of the vehicle, with a view to implead proper parties, in the petition, for the just and fair decision of the petition, without, prejudice to either party. it was further stated that since the petitioners, who were respondents, in the claim petition, were never served, nor they acquired knowledge of the pendency thereof, ex-parte award was wrongly passed. it was former stated that they acquired knowledge of the aforesaid award, on receipt of a notice, in the execution proceedings, and ultimately, they came to file the petition, under order 9, rule 13 of the code of civil procedure.4. the respondents/decree-holders, put in appearance, and filed reply, wherein, they opposed the application, stating therein, that sh. a.k. gulati, advocate, had put in appearance, on behalf of the petitioners, who were respondents in the main claim petition, and filed power of attorney, duly executed by them. it was further stated that, later on, he did not appear, and the respondents (now petitioners) were proceeded against exparte. it was further stated that it was not that the respondents (now petitioners), were never summoned, nor anybody put in appearance, on their behalf. it was further stated that there was no sufficient cause for setting aside the ex-parte award.5. on the application, under order 9, rule 13 of the code of civil procedure, the following issues, were struck:i) whether the order and decree dated 12.11.2002 is liable to be set aside as alleged? oppii) whether the petitioner-respondent is estopped from his own act and conduct from moving the application as alleged, if so its effect? opriii) whether the application for setting aside the order of exparte is not maintainable as alleged? opriv) relief.6. after hearing the counsel for the parties, and, on going through the evidence, on record, die application, was dismissed.7. feeling aggrieved, the instant revision-petition, has been filed, by the revision-petitioners.8. i have heard the counsel for the revision-petitioners, and have gone through the record of the case, carefully.9. the counsel for the revision-petitioners submitted that the revision-petitioners, were never served, as respondents, in the main claim petition, by any mode. he further submitted that sh. a.k. gulati, advocate, was never engaged by them, in the claim petition. it was further submitted by him, that a criminal case was registered, against petition no. 1, under sections 279, 338, and 427 of the indian penal code. initially, sh. a.k. gulati, advocate, was engaged to contest that case, but there was some dispute, with regard to his fee. so they (revision-petitioners), engaged sh. h.k. yadav, advocate, to contest that case. it was further submitted that even petitioner no. 1, was acquitted, in that criminal case. it was further submitted by him that, as such, the revision-petitioners, were wrongly proceeded against ex-parte, and the ex-parte award, was wrongly passed, against them. it was further submitted that they came to know of the ex-parte award, on receipt of notice, in the execution. it was further submitted that the vehicle, in question, at the relevant time, was insured with the united india insurance company limited. he further submitted that, thus, there was sufficient cause for setting aside the ex-parte award, but the motor accident claims tribunal, was wrong, in disposing the application.10. after giving my thoughtful consideration, to the contentions, i used by the counsel for the revision-petitioners, in my considered opinion, the revision-petition deserves to be dismissed, for the reasons to be recorded, hereinafter. no doubt, it was the case of the revision-petitioners, that they never engaged sh. a.k. gulati, advocate, in the claim petition, in which, the ex-parte award, was passed, against them, yet, this plea of the revision-petitioners, was refuted by sh. a.k. gulati, advocate, when he appeared as rw1. he, in clear-cut terms, stated that he was engaged by the revision-petitioners, who were respondents, in the claim petition, and that they had executed vakalatnama exhibit rw1/a, in his favour, duly authorizing him, to appear, in that petition. there was no reason, on the part of sh. a.k. gulati, advocate, to appear, on behalf of the respondents, in the main claim petition, who are now revision-petitioners, unless he had been engaged and authorized by the concerned party, or its duly authorized person. the case of the revision-petitioners, was also not that the address, given in the claim petition, was not their correct address. sh. a.k. gulati, advocate, rw1, also stated that the revision-petitioners, in that case, approached him with summons, in the claim petition, which they had received. it is further evident from the order of the court below, that the zimni order, dated 26.08.1998 of mact case no. 68 of 1998, titled as 'kunj bihari and anr. v. gajraj and ors. showed that the summons were issued for the service of the respondents (now revision-petitioners), but the same were not received back served or otherwise. the question, whether the summons were not received back served or otherwise, was hardly of any consequence, especially when, sh. a.k. gulati, advocate, on behalf of the respondents (revision-petitioners), put in appearance, on 17.05.1999, and placed power of attorney, executed in his favour, by them, on the file of the court. it was not the case of the revision-petitioners, that sh. a.k. gulati, advocate, colluded with the petitioners (now respondents), or their counsel. the court below, was, thus, right in holding, that the plea of the revision-petitioners, that they never came to know of the claim petition, during the pendency thereof, as they were never served, was completely falsified by sh. a.k. gulati, advocate, who put in appearance, on their behalf, 4n that claim petition, and filed vakalatnama. the court below, was, thus, right in holding that there was no sufficient cause for setting aside the ex-parte award, dated 12.11.2002, passed in mact no. 68 of 19.03.1998/07.06.2000. the order rendered by the court below, is based, on the correct appreciation of evidence, and law, on the point. the same does not suffer from any illegality, material irregularity, or perversity, warranting the interference of this court, in its revisional jurisdiction under article 227 of the constitution of india. the submission of the counsel for the revision-petitioners, being without merit, must fail, and the same stands rejected.11. for the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same, is dismissed.