Subhash Chander (Deceased) represented by his LR's and Ors. Vs. United India Insurance Company (Subsidiary of General Insurance Corporation of India) through Its branch Secretary (01.05.1997 - PHHC) - 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. - he having failed to do so, the lower appellate court has considered the depreciated value as the amount of actual loss. learned counsel for the appellant has not referred to any evidence which may clearly show that the value of the truck was .more than rs.jawahar lal gupta, j.1. this is the plaintiffs second appeal. a few facts may be noticed.2. in may 1980 the plaintiff had taken a loan of rs. 2,50,000/- from the bank of india for purchase of a truck on august 26, 1980 the truck was actually purchased. however, on march 4, 1983 the truck was destroyed in a fire. litigation ensured. on august 3, 1983, the plaintiff filed a suit against the united india insurance co. ltd. for recovery of rs. four lakhs as compensation. the defendants resisted the suit on the ground that the plaintiff had caused the fire intentionally. after perusal of pleadings, the trial court framed various issues. ultimately, vide its judgment dated august 13, 1986, the trial court decreed the plaintiffs suit.3. another fact which may be mentioned here is that on march 15, 1984 even the bank had filed a suit against the plaintiff for recovery of rs. 3,06,936/-. this suit was also tried by the civil court. it was decreed. consequently, -while deciding the suit filed by the plaintiff, the trial court had directed that out of the amount of rs. four lakhs, the amount claimed by the bank shall be paid to it by the insurance company. aggrieved by the judgment and decree, the insurance company filed an appeal. it was contended before the appellate court that the insurance company was liable to compensate the plaintiff only to the extent of the actual loss suffered by him. this contention was accepted. it was held that the value of the truck according to the survey report was rs. 1,52,900/-. the value of the material which had been salvaged was rs. 10,000/-. thus, the liability of the insurance company was held that to be rs. 1,42,000/- with interest at the rate of 12% per annum from the date of fire till the realisation of the decretal amount. it was further directed that 'the entire amount shall be paid by the insurance company towards the decree passed in favour of the bank. aggrieved by this judgment, the plaintiff has filed the present appeal.4. mr. hemant kumar, learned counsel for the appellant has contended that the truck having been insured for an amount of rs. four lakhs, the company was liable to either provide a truck to the appellant in the same condition in which it was at the time of accident or the company should pay the amount for which the truck had been insured. on the other hand, learned counsel for the respondent-insurance company has contended that the truck having been purchased in the year 1980 for a total amount less than rs. four lakhs, the appellant was not entitled to be paid anything beyond the depreciated value as awarded by the learned appellate court.5. admittedly, the plaintiff had filed a suit for recovery of rs. four lakhs on account of the loss caused by the accidental fire. the onus of proving the actual loss was on him. in the plaint, the plaintiff has not indicated the extent of the actual loss suffered by him. there is nothing to show as to what was the actual value of the vehicle at the time of accident. secondly, the plaintiff has appeared at p.w. 8. even in his statement, the plaintiff has not indicated as to what was the actual value of the truck at the time it was destroyed in the fire.6. the obligation of the insurance company was to indemnify the appellant for the actual loss suffered by him. under the policy, it had the option to repair, reinstate or replace the motor vehicle. since the vehicle had been almost completely destroyed in fire, the question of its repair or reinstatement did not arise. however, the company had to indemnify the plaintiff for the actual loss which he had suffered. the extent of loss had to be proved by the appellant. he having failed to do so, the lower appellate court has considered the depreciated value as the amount of actual loss. it may be that the actual value was more. it could have been even less. it was a matter to be established by evidence. learned counsel for the appellant has not referred to any evidence which may clearly show that the value of the truck was . more than rs. 1,52,900/- as determined by the appellate court. consequently, he cannot claim more.7. mr. hemant kumar has placed reliance on the decision of the andhra pradesh high court in united india fire and general insurance co. ltd. and ors. v. mowli bai, 1985 acj 794 to contend that the insurance company is liable to pay the amount for which the vehicle has been insured. this contention cannot be accepted. a perusal of the decision indicates that the principle called out by the court was that 'in determining the sum of money as reparation for a breach of contract as damages.......get at that sum of money which will place the party injured in the same position as he would have been in as if the contract has been performed or in the case of tort as if he had not sustained the wrong for which compensation is being paid for......' thus, the court has to arrive at the figure which will place the aggrieved party in the position which he would have been in if he had not sustained the wrong for which the compensation is being paid. the onus of proving the extent of loss and thus the amount of compensation, is on the person who claims it. the sum for which a vehicle is insured is the maximum amount which can be awarded. however, it is not a figure which would always be awarded even though the loss for that amount has not been proved. consequently, learned counsel can derive no advantage from this decision.8. no other point has been urged.9. in view of the above, there is no merit in this appeal. it is, consequently, dismissed. however, in the circumstances of the case, there will be no order as to costs.