Bhan Singh and anr. Vs. State of Haryana Through Collector and anr. - 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. - - the only alternate construction of section 8 is to hold that quite distinctly from the provisions section 7, a tenancy may not be terminated within a period of three years after commencement if the tenancy commenced after the commencement of the pepsu tenancy and agricultural lands (second amendment) act, 1956, that is to say, while the provisions of section 7 would always be available in the case of tenancies commencing after the second amendment act, a tenant may also be evicted on the termination of the period of tenancy which shall not be less than three years.t.h.b. chalapathi, j.1. the petitioners are invoking the writ jurisdiction of this court under article 226 of the constitution of india for issuance of a writ of certiorari to quash the order of the assistant collector, 1st class, jind, dated 22.12.1972 as confirmed by the collector on appeal and by the additional commissioner and financial commissioner, haryana, vide annexures p-1 to p-4. challenging the said orders, the petitioners filed this writ petition.2. the 2nd respondent, who is the land holder, filed an application before the assistant collector, 1st grade, jind for the eviction of the petitioners from the land in question under section 5 of the pepsu tenancy and agricultural lands act, 1955. according to the land holder, the petitioners were inducted as tenants after 1956. they are liable to be evicted from the land. the authorities below held that the petitioners became the tenants of the land in dispute in 1959. as they had completed minimum term of 3 years, they are liabie to be evicted from the land and accordingly, the assistant collector, 1st grade by his order dated 22.12.1972 ordered the eviction of the petitioners. the said order was confirmed by the collector on 21.3.1975. the revision petition filed by the petitioner was dismissed by the additional commissioner, hissar division by his order dated 20.1.1982. the financial commissioner also dismissed the further revision.3. learned counsel for the petitioners contended that the petitioners were old tenants and they were inducted as tenants even prior to 1956. section 8 of the pepsu tenancy and agricultural lands act, 1955 (hereinafter referred to the as the 'act') is not applicable. therefore, the orders of the authorities below are liable to be set aside. the assistant collector, on the basis of the jamabandis on record, found that the petitioners became the tenants from the year 1959. this finding was also confirmed by the collector on the basis of the material placed on record. the authorities below relied upon exhibits p-l to p-6 to show that the petitioners, who are not the that the petitioners, who are not the tenants prior to 1955-56, got the land from shankar in kharif 1959. they also considered the documents marked as exhibits d-1 to d-4 filed by the petitioners. according to the collector, khasra girdawaris which are marked as exhibits d-1 to d-4 proved that shankar got the possession of the disputed land from kharif 1959 and continued thereafter. this is purely a finding of fact arrived at by the authorities below on the basis of the evidence adduced by both the parties. the court while exercising its extraordinary writ jurisdiction under article 226 of the constitution of india, will not ordinarily interfere with the finding of fact unless it is shown that the said finding has been arrived at on the basis of no evidence or on the basis of evidence which is not legally admissible. such is not the case here. therefore, there are no grounds to interfere with the said finding of fact.4. the learned counsel for the petitioners further contended that section 8 of the act does not furnish a ground for eviction. it only protects the right of the tenant said to be in possession of the land for a period of three years if he was inducted as a tenant after 1956. he further contended that section 8 of the act shall apply subject to provisions of section 7 of the act. therefore, a tenant can be evicted even during the period of three years if the grounds enumerated in section 7 are present. he also argued that section 7-a which was introduced alongwith section 8 in the main act furnishes additional grounds for evicting the tenants, but section 8 was not made subject to the provisions of section 7-a. therefore, according to the learned counsel for the petitioners, the grounds mentioned in section 7 of the act are available to the landlord to evict the tenant during the period of three years while the tenant cannot be evicted during that period of three years on any of the grounds mentioned in section 7-a of the act. thus according to the learned counsel for the petitioners, section 8 of the act does not furnish a fresh ground for eviction on the basis that the tenant completed three years of tenancy on being inducted as a tenant after 1956. though this argument appears to be appealing, on a reading of the provisions contained in sections 7, 7 a and 8 of the act, but in view of the decision of the full bench of this court and also of the supreme court, i am not able to accept the contention of the learned counsel for the petitioners.5. in piara singh v. the financial commissioner, revenue, punjab and ors., (1977 plj 151) a full bench of this court by a majority, held as follows:-'the question whether section 8, as re-enacted, provide an additional ground of ejectment of a tenant came for consideration before this court in randhir singh and ors. v. financial commissioner and ors., 1970 plj 519 and it was held by learned brother p.c. jain, j. that section 8 provides an independent ground of eviction and a tenant inducted after the enforcement of the pepsu tenancy and agricultural lands (second amendment) act, 1956, can be ejected after the expiry of three years without proving any of the conditions specified in section 7 of the act. the view of the learned single judge was affirmed by a division bench of this court in devi chand v. financial commissioner, haryana and ors., 1971 plj 200. the correctness of the view taken by that division bench was assailed before a division bench in the present case and, therefore, their lordships referred the questions of law referred to above, to a full bench. it may not be out of place to mention here that earlier the learned financial commissioner of punjab in dina v. dalip singh and ors., 1967(46) llt 232 = (1967 plj 278), and avtar singh and anr v. smt. kaki and ors., 1968(47) llt 193 = (1968 plj 70) also took the same view.after hearing the learned counsel for the parties, we are of the considered opinion that no fault can be found with the view taken by a division bench of this court in devi chand's case (supra).......it would be seen that the interpretation given to the provisions of section 8 of the act by the division bench in devi chand's case (supra) brings out a clear intention of the legislature in providing that all the tenants inducted on the land after the enforcement of the second amendment act of 1956, should in general terms have three years protection from being ejected by the big landowners from their reserved area and by the small landowners from the area within their permissible limits.'6. dealing with the same question, the apex court in bhartu v. randhir singh and ors., (air 1985 s.c. 413) held as follows:-'the only alternate construction of section 8 is to hold that quite distinctly from the provisions section 7, a tenancy may not be terminated within a period of three years after commencement if the tenancy commenced after the commencement of the pepsu tenancy and agricultural lands (second amendment) act, 1956, that is to say, while the provisions of section 7 would always be available in the case of tenancies commencing after the second amendment act, a tenant may also be evicted on the termination of the period of tenancy which shall not be less than three years. so construed it may appear as if the words 'subject to the provisions of section 7; are being read by us as 'notwithstanding the provisions of section 7: but that may not be a correct way of looking at what we have said. the proper way of looking at the scheme of sections 7, 7-a and 8 is to hold that while section 7 enumerates the ground on which any tenancy may be terminated, section 7-a provides for additional grounds on which tenancy subsisting at the commencement of the pepsu tenancy and agricultural lands (second amendment) act, 1956 may be terminated as section 8 provides for the termination of a tenancy commencing after the commencement of the pepsu tenancy and agricultural lands (second amendment) act, 1956 apart from the grounds mentioned in section 7. that is why section 7 itself uses the words 'no tenancy shall be terminated except in accordance with the provisions of the act or except on any of the following grounds that is to say, a tenancy may be terminated either on the grounds mentioned in section 7 or in accordance with the provisions of the act. we think that this is the only reasonable and permissible way of construing section 8 in the setting of sections 7, 7-a and 8. the view taken by us appears to have been taken consistently by the punjab high court in the last 15 years and construing as we are doing the state act, we do not think that there are any compelling reasons justifying any departure from the view taken by the punjab high court for so long.'7. thus, the supreme court held that section 8 provides for the termination of tenancy commencing after the commencement of the pepsu tenancy and agricultural lands (second amendment) act, 1956 on the expiry of the period of tenancy which should not be less that three years apart from the grounds mentioned in section 7 of the act. thus, it is clear that the petitioners, who have been inducted into possession as tenants of the disputed land after 1956 can be evicted on the expiry of three years by terminating their tenancy. i, therefore, do not find any grounds warranting interference with the orders of the authorities below.8. the result is the writ petition fails and is, accordingly dismissed. however, there will be no order as to costs.