Dr. G.S. Saharia Vs. Haryana Roadways 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.amarjeet chaudhary, j.1.this judgment of mine will dispose of f.a.o. nos. 598, 599, 600 and 601 of 1986, which have arisen out of common award of motor accident claims tribunal, sonepat, dated march 6, 1986.2. the judgment is being recorded in f.a.o. no. 598 of 1986.3. in an accident between the haryana roadways bus no. hrl-5549 and car no. dli-7752 on december 14 1978, rattan ram driver of the car was killed while three other persons travelling in it namely g.s. saharia, his wife asha saharia and his brother i.s. saharia sustained injuries. separate claim petitions under section 110-a of the motor vehicles act were filed by the widow and minor children of rattan ram deceased and also by g.s. saharia, asha saharia and i.s. saharia. the widow and children of rattan ram in f.a.o. no. 601 of 1986, had claimed compensation of rs. 1,00,000/-. smt. asha saharia had also claimed compensation of rs. 1,00,000/- while g.s. saharia and i.s. saharia made a prayer for the grant of compensation of rs. 2,00,000/. the motor accident claims tribunal, sonepat, however did not award any amount to any of the claimants on the ground that the accident had not taken place due to rash and negligent driving of bus no. hrl-5549 by its driver. this finding was arrived at by the tribunal on the basis of writing exhibit r-1 and exhibit r-2 given by shri g.s. saharia and the car driver to the effect that there was no negligence on the part of the driver of the bus.4. the finding of learned motor accident claims tribunal has been challenged on the ground that writings exhibits r1 and r2 have not been properly appreciated with reference to the injuries that had been sustained by car driver and shri g.s. saharia. it was also urged that rattan ram, driver of the car had died within two days of the accident.5. the learned counsel for the appellants have urged that in the facts and circumstances of this case, it can reasonably be inferred that it is a case of contributory negligence of both the drivers of the vehicles involved in the accident.6. shri j.c. sethi, additional advocate general, haryana has supported the finding of the tribunal on the ground that the driver of the ill fated car had in his writing admitted that the driver of the bus was not at fault. he contends that no interference regarding the manner of accident is called for and the claimants are not entitled to any compensation.7. i have considered the submissions of counsel for the parties and perused the evidence on record.8. it has come in the statements of g.s. saharia (p.w.1), i.s. saharia (p.w. 2) and smt. asha saharia (p.w.3) that it was drizzling slightly and the car in which they were travelling was moving on its proper side at a reasonable speed. a bullock-cart loaded with sugar cane was ahead of the car at a distance of 15/16 meters. on seeing the bullock cart, the driver of car further slowed down the car. a haryana roadways bus came from the opposite side and struck against the right side to the car. these witnesses have further stated that the car driver applied brakes. these witnesses have denied that the car had come in the centre of the road. shri n.k. jain, yamuna grameen bank, agra appeared as p.w. 6 and stated that he was proceeding to karnal in the bus. he has claimed that he was sitting on the front side of the bus and saw the accident. according to him a cart loaded with sugarcane was going ahead followed by a car which was going at a slow speed. according to him, the bus came with a high speed and struck against the car on its driver side and turned turtle. according to him, the injured were taken to the hospital where they were admitted. he also stated that one of the children had supplied him the telephone number of the claimants and he had told his name and other particulars to an old man sitting in the bus. in his cross-examination, he has stated that he had seen the car two or three minutes before the accident and at that time the car and the bus were at some distance. it has also come in his statement that it was drizzling at that time which had started 15/20 minutes prior to it. he denied that the road had gone slippery. he also denied that any of the. occupants of the car was his friend or relation.9. this evidence was rebutted by niamat ali, respondent-driver of the bus who had stated that the car came on the right hand side from behind of a bullockcar. he and the car driver applied brakes. the car driver could not control the car as the brakes did not work. it took a turn and struck against the bus. it has also come in the statement of niamat ali that the bus fell in the pits on the left side of the road.10. considering the facts and circumstances of this case, this court is of the view that the statements of the injured and that of shri n.k. jain, who is an independent witness, that the bus came at a high speed and struck against the car, should have been given credence by the tribunal and should not have been discarded. keeping in view all the aspects of this case, it is held that the accident was caused due to negligence of both the drivers. had the driver of the bus applied brakes, the accident would not have taken place. similarly, had the driver of the car taken the car to its extreme left side, the accident would have been averted. in this view of this matter fault lies with both the drivers. the driver of car is held liable to the extent of 3/4th while the driver of the bus to the extent of 1/4th.11. as a result of foregoing discussion, all the appeals are allowed to the extent that the claimants will be entitled to 1/4th of the compensation amount as determined by the motor accident claims tribunal.12. motor accident claims tribunal has held the claimants entitled to the following compensation:g.s. saharia rs. 50,000/-i.s. saharia rs. 40,000/-smt. asha saharia rs. 25,000/-leela wati widow gopal, rs. 48,000/-.om parkash ramesh minorsons and manju alias madhuminor daughter ofshri rattan ram13. since niamat ali driver of the bus in question has been held to be negligent to the extent of 1/4th, the claimants will be entitled to recover only 1/4th of the amount awarded by the tribunal. the amount falling to the shares of minors will be deposited in some nationalised bank till the time they attain majority.14. the claimants will also be entitled to the interest at the rates of 12% per annum on the amount of compensation to which they are entitled from the date of filing the claim petitions, till payment.15. the appeals are allowed to the extent indicated above. no costs.