Rajender Datt Vs. the State of Haryana - 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. - after completion of investigation, the accused was arraigned for trial on such like allegations. 12. the conviction of the appellant for offence under section 506 ipc is also not maintainable as the alleged threats to kill the injured are not borne out by the conduct of the appellant in causing both the injuries on his left shoulder and that too with blunt weapon like hockey stick.jai singh sekhon, j.1. rajinder dutt appellant was convicted by the learned addl. sessions judge, faridabad on a charge for offence punishable under sections 333/506/353 ipc and was awarded two years' ri and fine of rs. 500/- or in default of payment thereof, to further undergo one month's ri on the first count. he was awarded one year's ri on the second count. no separate sentence was awarded for offence under section 353 ipc, in view of awarding the sentence under section 333 ipc. both the substantive sentences were ordered to run concurrently. feeling aggrieved against the orders of conviction and sentence, the appellant has come up in appeal.2. in brief, the facts of the prosecution case are that injured bhagwan dass sharma pw4 was posted as shift engineer in 15 m. w. plant of thermal power house, faridabad. rajinder dutt accused was previously employed as shift attendant on this plant under the injured but was transferred from there to coal handling plant. the accused suspected the injured to be instrumental in his transfer. on 3-10-1985 bhagwan dass sharma had to resume his duties from 2 p.m. to 10 p.m. he arrived on the premises of thermal power house at about 1.45 p.m. and was proceeding towards the power house after parking his moped at the stand, when he reached beyond the chief engineer's office, the accused arrived there and threatened to kill him due to transfer. mr. sharma retraced his steps and tried to escape towards the office of the chief engineer. however, the accused over took and gave him two blows on his left shoulder with hockey stick. ashok kashyap, assistant engineer had also seen the occurrence. the accused managed to escape along with hockey stick. bhagwan dass sharma rushed to the office of chief engineer and apprised him of this matter. the chief engineer in turn sent report ex. p.c. to the station house officer/ in charge of police station, mujesar, faridabad about this incident on the basis of which formal f.i.r. ex. pd was registered by s i udey singh on the same day at 3.50 p.m. a case under section 323/506 ipc was registered against the accused. he also got the injured medically examined from dr. a. k. saxena pw 1, who found two contusions on the left shoulder of the injured. injury no. 1 was kept under observation subject to x-ray examination while injury no. 2 was declared simple.3. sub-inspector udey singh also visited the spot and prepared rough site plan ex. pu. on x-ray examination, dr. d.b. chakarwarti pw 2 found the fracture of acromion process of the left shoulder. injury no. 1 was declared grievous in nature. the offence was converted to one under sections 333/506/353 ipc. after completion of investigation, the accused was arraigned for trial on such like allegations.4. before the trial court, in order to prove its above-referred case, the prosecution examined seven witnesses. bhagwan dass sharma injured and ashok kashyap supported the above referred ocular version.5. the version of the accused before the trial court in his statement recorded under section 313 of the code of criminal procedure was that of innocence and false implication contending that the injured was not competent to transfer him as only superintending engineer could have done so. the accused-appellant, however, led no evidence in defence despite being called upon to do so.6. the trial court believing the prosecution version convicted and sentenced the appellant, as referred above.7. i have heard the learned counsel for the parties besides perusing the record.8. there is considerable force in the contention of mr. majithia, learned counsel for the appellant that the appellant has not committed any offence punishable under section 353 ipc and that the provisions of section 333 ipc are not attracted in this case as admittedly, mr. bhagwan dass sharma pw 4 has yet to resume his duties as engineer at thermal plant at 2 pm whereas the occurrence took place at 1.45 p.m. while he was on his way to thermal plant. the provisions of section 353 ipc read as under:-'353 assault or criminal force to deter public servant from discharge of his duty:'whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.'a bare glance through the same leaves no doubt that the assault or intimidation to the public servant must be with an intent to prevent or deter that person from discharging his duty as such public servant. in the case in hand, mr. sharma was simply proceeding to thermal plant for resuming his duty and thus, it cannot be said that rajinder dutt accused had assaulted him during the execution of his duty. the observations of kerala high court in richard saldana v. state, air 1960 kerala 200 : (1960 cri lj 828) can be referred with advantage in this regard. in that case, a co-operative extension officer while proceeding to his headquarters after attending a meeting of a co-operative society was assaulted at a bus stop. under these circumstances, it was held that he was not assaulted during the discharge of his duties.9. the gauhati high court in suresh narayan roy v. state of arunachal pradesh 1978 criminal law journal 1514 had also taken a similar view by holding that the assault committed on a public servant due to personal grudge would not be covered by the provisions of section 353 ipc.10. the observations of the apex court in manumiya v. state of gujarat, air 1979 supreme court 1706 : (1979 cri lj 1384) are not attracted to the facts of the case in hand as therein the bus driver was assaulted while standing beside the bus and under these circumstances it was held that he was discharging his duties when assaulted.11. consequently, the appellant is acquitted of the charge under section 353/333 ipc but he would certainly be guilty of the offence of having voluntarily caused grievous hurt to bhagwan dass sharma punishable under section 325 ipc as the evidence of dr. d.b. chakarwarti pw2 reveals that on x-ray examination, acromion of the left shoulder was found fractured. the non-framing of the charge under section 325 ipc would be of no consequence as it is minor offence of the same kind for which deterent sentence is provided under section 333 ipc.12. the conviction of the appellant for offence under section 506 ipc is also not maintainable as the alleged threats to kill the injured are not borne out by the conduct of the appellant in causing both the injuries on his left shoulder and that too with blunt weapon like hockey stick. consequently, the mere outburst of the petitioner at the time of assault that he will kill mr. sharma is not sufficient to hold that it would fall within the mischief of section 506 ipc as it cannot be said that he indulged in criminal intimidation of the injured to cause the death or grievous hurt. the substantive sentence of causing grievous hurt has been awarded to the appellant. there is no question of indicating him under section 506 ipc on mere threats to cause grievous injury. thus, the appellant also stands acquitted of the charge under section 506 ipc.13. the question then arises whether it is a fit case where the appellant should be given the benefit of probation of offenders act or of the provisions of section 360 cr p.c. in view of the reformatory trend of criminal penalogy, in this regard, it is noteworthy that the appellant had indulged in causing grievous hurt to his superior officer serving in the same department on the misconceived notion that the latter was instrumental in his transfer. consequently, it is not a fit case for releasing the appellant on probation. he is, therefore, ordered to undergo sentence of one year's ri and fine of rs. 500/- or in default of payment thereof, to further undergo one month's ri for offence punishable under section 325 ipc. the appeal filed by the appellant stands partly accepted to the extent referred to above. the appellant is directed to surrender for undergoing the remaining period of sentence.