Karnail Singh Vs. Sukhjeet Kaur - 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. - rather, she left her matrimonial home in july, 1995 and refused to return in spite of the efforts made through panchayat consisting of bikkar singh, buta singh, balbir singh and natha singh which went to her parents house on 17.9.1995. the petitioner and her parents told the panchayat that they will send the petitioner on the condition that the appellant-husband will not object of keeping of chhinder kaur and shall treat her like his own daughter. loss of the two children compound by demands of dowry and over and above maltreatment by the respondent of the petition constitute sufficient cruelty and apprehension in the mind of the petitioner that her life would not be safe with the respondent. since respondent sukhjit kaur was without any child, she might have adopted the daughter of her brother and this act of her must not be liked by the appellant.r.l. anand, j.1. karnail singh (husband) has filed the present appeal and it has been directed against the judgment and decree dated 1.10.1996 passed by learned district judge, bathinda, who allowed the petition under section 13 of the hindu marriage act, 1955 (hereinafter referred to as 'the act') filed by sukhjit kaur alias bholo (wife) and passed a decree for dissolution of marriage.2. the brief facts of the case are that sukhjit kaur alias bholo filed a petition under section 13 of the act for dissolution of marriage against her husband karnail singh by inter-alia pleading that she was married to kamail singh about 7 years ago in shergarhia, district hanumangarh (rajasthan) and after the marriage they lived together at village kothaguru, district bathinda. out of the wedlock two female children were bom and both have expired. it is alleged by the petitioner-wife that soon after the marriage the appellant-husband started maltreating her on the ground that she had brought insufficient dowry, whereas her parents had spent sufficient amount at the time of marriage. the appellant-husband started making more demands of dowry which her parents could not meet. it was further alleged by the petitioner-wife that the appellant-husband was a truck driver. he is addicted to intoxicants and takes liquor daily. he put pressure upon her to bring rs. 50,000/- from her parents to purchase a truck but her parents could not meet this illegal demand of the appellant. thereafter she was turned out of her matrimonial home about 2-1/2 years prior to the filing of the petition in three plain cloths. she was given beatings and all the gold and valuables were retained by the appellant. about 15 days prior to the filing of the petition on 8.8.1995 a panchayat consisting of the father of petitioner namely darbara singh, bhagwan singh, thana singh and major singh went to the appellant and requested him to rehabilitate the petitioner but he flatly refused to do so. it was also pleaded by the wife that her husband had deserted her for continuous period of more than two years prior to the filing of the petition.3. notice of the petition was given to the appellant-husband, who filed reply and denied the allegations. he stated that his wife gave birth to a daughter on 18.9.1993, but she died on the same day in dr. balbir singh's hospital in bhagta bhaika. on 21.7.1994 she gave birth to another female child at kothaguru and she was attended by manjit kaur, a village dai, but that child also expired. the husband denied the allegations of cruelty and stated that he never demanded dowry or money from the petitioner-wife. accordingto him, the brother of the petitioner died in june, 1993, but the parents of the petitioner refused to keep his widow, who then got married to some one in jahanewali. suba singh, brother of the petitioner-wife was survived by two daughters. one of them was being brought up by the sister of the petitioner and the younger one namely chhinder kaur was brought by the petitioner, who started breast feeding her after the death of her first child. the appellant-husband tried to persuade the petitioner to send chhinder kaur back to her parents' house but she refused. according to the appellant, he never deserted the petitioner. rather, she left her matrimonial home in july, 1995 and refused to return in spite of the efforts made through panchayat consisting of bikkar singh, buta singh, balbir singh and natha singh which went to her parents house on 17.9.1995. the petitioner and her parents told the panchayat that they will send the petitioner on the condition that the appellant-husband will not object of keeping of chhinder kaur and shall treat her like his own daughter. with this defence the appellant prayed for the dismissal of the petition.4. from the pleadings of the parties, the learned trial court framed the following issues :-' 1. whether the respondent has treated the petitioner with cruelty opp2. whether the respondent has deserted the petitioner for continuous period of more than two years preceding the presentation of the petition opp3. relief.'5. the parties led evidence in support of their respective cases and on conclusion of proceedings, the, learned trial court decided issue no. 1 in favour of the wife and against the husband-appellant. issue no. 2 was decided against the petitioner and in favour of the present appellant and on the basis of the finding given under issue no. 1, the petition was allowed and a decree of divorce was passed and the marriage of the parties was dissolved forthwith vide impugned judgment and decree dated 1.10.1996.6. aggrieved by the impugned judgment and decree of the trial court, the present appeal by the husband.7. notice of the appeal was given to the respondent. repeated efforts were made for the service of the respondent-wife but to no effect. resultantly, the appellant filed application under order 5 rule 20 c.p.c. for the substitution of service and the substituted service was effected in daily 'jansatta'. the publication was effected on 10.11.1999 but in spite of the publication nobody gave the appearance on behalf of the respondent-wife. hence she was proceeded ex parte.8. i have heard mr. r.k. gupta, advocate on behalf of the appellant and with his assistance have gone through the records of the case.9. the leaned trial court returned the finding on issue no. 1 in favour of respondent-wife for the reasons given in para no. 7 of the judgment, which reads as under :-'7. the various aspects of cruelty in this case must be seen in their proper perspective. the perspective by a woman who desires to have children, but loses two daughters during child birth and gets no support emotional or otherwise, from her husband, who keeps pressuring her for money. loss of the two children compound by demands of dowry and over and above maltreatment by the respondent of the petition constitute sufficient cruelty and apprehension in the mind of the petitioner that her life would not be safe with the respondent.charge regarding demand of dowry, maltreatment and demand of rs. 50,000/- by the respondent, as contained in the pleadings of the petitioner, is supported by her evidence. therefore, the matrimonial offence of cruelty stands established and issue no. 1 is decided in favour of the petitioner.'10. the learned counsel appearing on behalf of the appellant submitted that there is no cogent evidence at all to suggest that the appellant ever treated the respondent-wife with cruelty. he submitted that there is no evidence coming from any independent source that the appellant ever demanded a sum of rs. 50,000/- from the respondent-wife or her father in order to purchase a truck.11. there is merit in the contentions raised by the learned counsel for the appellant. if a huge demand of rs. 50,000/- was ever made from the respondent or her father, in such a situation the father of the respondent was the first person to convene a panchayat or he would have reported the matter to the panchayat or police with regard to illegal demand of dowry or additional amount of rs. 50,000/-. in this regard there is a bald statement of respondent sukhjit kaur which is supported by her father darbara singh. the respondent has not examined any independent person to suggest that the appellant ever made a demand of rs. 50,000/- or that darbara singh, father of the respondent-wife was in a position to pay rs. 50,000/- to the appellant. these type of cases are to be decided on probabilities. it is the common case of the parties that sukhjit kaur gave birth to two daughters, but unfortunately both the daughters have expired. it is further proved on the record that the brother of the respondent-wife had expired and he had left behind him two daughters. since respondent sukhjit kaur was without any child, she might have adopted the daughter of her brother and this act of her must not be liked by the appellant. therefore, sukhjit kaur had the probable cause to withdraw herself from the company of the appellant. the marriage in this case survived for 7 years before the filing of the petition under section 13 of the act. had the appellant made a demand of rs. 50,000/-or treated the respondent with cruelty, such demand could have originated just after the marriage or after a reasonable time of the marriage. to my mind the alleged ground of cruelty is a fabricated affair. i do not agree with the finding of the learned trial court on issue no. 1 and the same is hereby reversed and decideissue no. 1 in favour of the appellant and against the respondent.in this view of the matter, i accept this appeal, set aside the judgment and decree of the learned trial court and dismiss the petition under section 13 of the act filed by sukhjit kaur. there shall be no order as to costs.12. appeal allowed.