Bhag Chand and anr. Vs. Khazan Chand 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. - opd iv) whether the suit is bad for mis-joinder and non-joinder of necessary parties? the plaintiffs (now appellants), shall be granted two effective opportunities, by the trial court, which shall commence, after 21.08.2009. it shall be the responsibility of the plaintiffs (now appellants), to produce the entire evidence on two dates, and, in case, they failed to do so, then the trial court, shall be, at liberty to close the same.sham sunder, j.1. the appeal, is directed, against the judgment and decree, dated 12.10.2006, rendered by the court of civil judge (junior division), karnal, vide which, it closed the evidence of the plaintiffs (now appellants), and dismissed the suit, under order 17, rule 3 of the code of civil procedure, and the judgment and decree, dated 29.05.2007, rendered by the court of additional district judge, karnal, vide which, it dismissed the appeal.2. the plaintiffs (now appellants), filed a suit for permanent injunction, claiming themselves to be the owner, in possession of the cattle verandah marked abcd, measuring 49' 27', total area 147 sq.yards, comprising rectangle no. 177, killa no. 27(0-5), situated in village jundla, tehsil and district karnal, as fully detailed in para no. 1 of the plaint, after having purchased the same from khajan chand son of tulsi ram, defendant no. 1, vide sale deed dated 30.5.1990. it was stated that, at the time of the purchase, the suit property was vacant. the plaintiffs constructed a cattle shed thereon, and immediately after its purchase, also installed hand pump and fodder machine. the defendants tried to take forcible possession of the property, in dispute. they were many a time, asked not to do so, but to no avail. ultimately, the suit, referred to above, was filed.3. defendant no. 2, put in appearance, and filed written statement, wherein, he took up various objections and contested the suit. it was pleaded that the plaintiffs had not come to the court, with clean hands, and, as such, were not entitled to the injunction, prayed for. it was stated that in fact, the father of defendant no. 2 sh. lal chand son of hovna ram, was the owner in possession of the said gair mumkin bora, measuring 5 marlas, as per the revenue record. the father of defendant no. 2, had expired, on 3.3.1990, and after his death, all his legal heirs, became owners of the gair mumkin bora, measuring 5 marlas. later on, on checking the revenue record, the defendants came to know, that their father was also owner of the bora, which was allotted to him in consolidation proceedings by deducting a part of the agricultural land. it was further stated that the plaintiffs had no concern with the property, in dispute.4. on the pleadings of the parties, the following issues were struck:i) whether the plaintiffs are entitled to a decree for permanent injunction as prayed for? oppii) whether the plaintiffs have not come to the court with clean hands and have suppressed the true and material facts? opdiii) whether the suit of the plaintiffs is not maintainable? opdiv) whether the suit is bad for mis-joinder and non-joinder of necessary parties? opdv) whether the plaintiffs have no cause of action to file the present suit? opdvi) whether the suit deserves to be dismissed? opdii) relief.5. when no evidence, was produced, by the plaintiffs, after affording a number of opportunities, their evidence was closed, vide order dated 12.10.2006, and the suit was dismissed, under order 17, rule 3 of the code of civil procedure, by the trial court.6. feeling aggrieved, an appeal, was preferred by the appellants, which was dismissed, by the court of additional district judge, karnal, vide judgment dated 29.05.2007..7. still feeling dissatisfied, the instant regular second appeal, has been filed by the appellants.8. the following substantial questions of law, arise, in this appeal, for the consideration of this court:i) whether the courts below, illegally rejected the medical certificate dated 11.10.2006, placed on record, on behalf of bhag chand, one of the appellants, regarding his illness, and erred, in closing the evidence?ii). whether, on account of the closure of evidence, manifest injustice has been caused to the appellants?9. the counsel for the appellants, submitted that, no doubt, some opportunities, were granted to the plaintiffs, to lead evidence, yet they could not produce the same. it was further submitted by him that, on the date, when the evidence was closed, one of the plaintiffs bhag chand, was having severe back-ache, and, as such, was unable to appear, in the court, for his evidence. it was further submitted that, on that very day, khan chand, the other plaintiff, was away to delhi, and he also could not appear. it was further submitted that there was no intentional or willful default, on the part of the appellants, in producing the evidence. it was further submitted that a reasonable opportunity, be granted to the appellants, to lead evidence, by setting aside -the judgments and decrees of the courts below.10. on the other hand, the counsel for respondent no. 2, submitted that, there was deliberate, and willful default, on the part of the plaintiffs, in producing the evidence, though they were granted a number of opportunities, and, as such, the trial court, was right, in closing their evidence, and dismissing the suit, under order 17, rule 3 of the code of civil procedure. he further submitted that the first appellate court, was also right, in dismissing the appeal. it was further submitted by him, that the judgments and decrees of the courts below, did not suffer, from any illegality, and were liable to be upheld. v11. after giving my thoughtful consideration, to the rival contentions, raised by the counsel for the parties, in my considered opinion, it is a fit case, in which, the appeal, deserves to be accepted, for the reasons to be recorded, hereinafter. no doubt, the perusal of the judgments of the courts below, reveal that opportunities, were granted to the plaintiffs to lead their evidence, yet they could not lead the same. however, it is evident from the judgments of the courts below, that, on the day, when the evidence, was closed, the absence of the plaintiffs, could not be said to be wholly intentional and willful. it is true that the party must be diligent and vigilant, in producing the evidence, within the reasonable time. however, it is settled principle of law, that procedure is the hand-maid of justice, meant to subserve the ends thereof, than to thwart the same. the procedural wrangles, cannot be allowed to stay, in the grant of substantial justice. when substantial justice, and the procedural wrangles are pitted, against each other, then the former will prevail over the latter. it is also settled principle of law, that every lis, should be decided, on merits, and short-cut methods, should not be adopted, for the purpose of putting an end to the litigation, by the cows. the prineiple of law, laid down, in state of punjab v. shamlal murari : a.i.r. 1976 s.c. 1177, was to the effect that, the procedure is, in the ultimate, the hand maid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. a procedural rule, therefore, has to be liberally construed, and care must be taken, that so strict an interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. it has to be kept in mind, that an overly strict construction of procedural provision may result in the stifling of the material evidence of a party, even if, for adequate reasons, which may be beyond his control. we must always remember that procedural law is not to be a tyrant, but a servant, not an abstraction, but an aid to justice. procedural prescriptions are the hand maid, and not mistress, a lubricant, not a resistant, in the administration of justice. if the breach can be corrected without injury to a just disposal of the case, the court should not enthrone a regulatory requirement into a dominant desideratum. after all, the courts are to do justice, not to wreck this end product on technicalities. in my considered opinion, the courts below, were wrong, in discarding the medical certificate of bhag chand, showing that, he was ill, and, thus, unable to appear, in the court, on the date, when the evidence was closed. the courts below were also wrong in coming to the conclusion that the absence of khan chand was not justifiable. on account of this reason, manifest injustice, stood occasioned, to the appellants, as their lis was decided, not on merits, but by default. therefore, in my opinion, in the larger interest of justice, it is a fit case, in which, reasonable opportunity, is required to be granted, to the appellants, to lead their evidence, though the opposite party, can be compensated, by way of costs. both the substantial questions of law are answered in favour of the appellants.12. for the reasons recorded above, the appeal is accepted with no order as to costs. the judgments and decrees of the courts below, are set aside. the trial court shall restore the suit at its original number. the plaintiffs (now appellants), shall be granted two effective opportunities, by the trial court, which shall commence, after 21.08.2009. it shall be the responsibility of the plaintiffs (now appellants), to produce the entire evidence on two dates, and, in case, they failed to do so, then the trial court, shall be, at liberty to close the same. after the evidence is closed by the plaintiffs, reasonable opportunity shall be given to the defendants (now respondents), to lead their evidence, and thereafter, the case, shall be decided, afresh, in accordance with the provisions of law. however, the appellants, are burdened with costs of rs. 2,000/-, for causing somewhat delay, in the disposal of the case. the payment of costs of rs. 2,000/-, shall be a condition precedent, to the leading of evidence. the parties, are directed to appear, in the trial court, on 21.08.2009, at 10.00 a.m.