Siri Ram Vs. Parma Devi Alias Paramjit Kaur and ors. - 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. - however, subsequent thereto, appeal was got dismissed as withdrawn, vide order dated 19th november, 1991. it is apparent from the records that even after dismissal of appeal by the appellate court below on 20th november, 1986, petitioner failed to deposit the amount within one month, thereafter, as directed by the trial court. 500/- was deposited by the petitioner with permission of the court on 7th december, 1987. in the meantime, petitioner filed execution application, on the basis of judgment passed in his favour on 15th february, 1984. in that execution application, objection petition was filed by the respondents, by stating that execution application is not maintainable, as the decree had become void and inexecutable since the petitioner/decree holder had failed to deposit the amount of rs. it is only an attempt by the petitioner to retain possession of the property regarding which, matter had already become final between the parties, when objection application filed by the respondent was allowed by the court below, vide order dated 12th december, 1987. vide that order it was specifically held that since petitioner had failed to deposit rs. now it is not open to the petitioner to return back and agitate the order of restoration of possession on the same ground on which he had already failed in the year 1987. 7. further contention of shri jaswal that the petitioner is entitled to take benefit of the provisions of section 53(c) of transfer of properties act, is also not justified. 8. counsel for the petitioner has failed to cite any precedent to the contrary, on the basis of which, any interference can be made by this court, while exercising its limited revisional jurisdiction.jasbir singh, j.1. the revision petition has been filed against an order, vide which application filed by the respondent nos. 1 to 4, under section 28(2)(a) and (b) of specific relief act, 1963, was allowed and the applicants were held entitled to restoration of possession of the suit property and they were also held entitled to retain amount of earnest money of rs.1500/-, by way of compensation towards rents and profits of suit property.2. it is apparent from the records that siri ram, petitioner filed a suit for specific performance, on the basis of an agreement to sell dated 21st september, 1980. that suit was instituted on 20th july, 1981 against the, respondents. suit was decreed by the trial court, vide judgment and decree dated 15th february, 1984 and the following relief was granted in favour of the petitioner:-'23. in view of the above discussion and my findings on the above issues, plaintiff succeeds. i, therefore, grant a decree for specific performance of agreement ex.p1 dated 21st september, 1980 directing the defendants to execute and get the sale deed registered in respect of suit land in favour of the plaintiff. as a consequential relief, a decree for permanent injunction is also granted restraining the defendants from alienating the suit land in any manner whatsoever to any other person except the plaintiff or from dispossessing the plaintiff from the decree against the defendants, with costs. this decree shall be treated as ex parte against defendant nos.2 and 3. plaintiff siri ram shall deposit rs.500/-, the balance sale price of the plot in dispute, for payment to the defendants, within one month from today and thereafter the defendants shall execute the sale deed and get it registered in favour of plaintiff within another one month. decree be drawn. file be consigned.'3. as is apparent from the relief given above, it was incumbent upon the petitioner to deposit rs.500/- i.e. balance price of the plot, in dispute, within one month from the date of passing that judgment. against judgment dated 15th february, 1984, respondents filed an appeal wherein interim stay was granted. however, ultimately that appeal was dismissed by the appellate court below on 20th november, 1986. against above mentioned judgments, regular second appeal bearing no. 1218 of 1987 was filed in this court, which was admitted on 6th august, 1987. no stay was granted. however, subsequent thereto, appeal was got dismissed as withdrawn, vide order dated 19th november, 1991. it is apparent from the records that even after dismissal of appeal by the appellate court below on 20th november, 1986, petitioner failed to deposit the amount within one month, thereafter, as directed by the trial court. remaining sale consideration of rs.500/- was deposited by the petitioner with permission of the court on 7th december, 1987. in the meantime, petitioner filed execution application, on the basis of judgment passed in his favour on 15th february, 1984. in that execution application, objection petition was filed by the respondents, by stating that execution application is not maintainable, as the decree had become void and inexecutable since the petitioner/decree holder had failed to deposit the amount of rs.500/- within one month from the date of judgment and decree dated 15th february, 1984 onwards. executing court below, after noticing contentions of both the parties, allowed the objection application. it was opined by the court below that keeping in view facts and circumstances of the case, agreement, on the basis of which decree was passed, be held to have been rescinded under section 28 of the specific relief act, 1963. relevant part of the order dated 12th december, 1987 reads as under:-'a perusal of the relief clause shows that the plaintiff was bound to deposit the balance sale price i.e. rs.500/- within one month from the passing of the decree i.e. 15th february, 1984 but he did not. the amount of rs. 500/- has been deposited by him on 9th december, 1987 i.e. against the terms and conditions of the judgment in his favour. no reason has been assigned and no explanation has been adduced for non-depositing of the amount of rs.500/- as per direction of the court. in such a situation, there is no other inference than the one that the decree holder was not willing to get the sale deed registered. in other words, it is a fit case where in the circumstances the contract i.e. agreement on the basis of which decree was passed be held to be rescinded under section 28 of the specific relief act, 1963. the order is made accordingly and the objection petition is accepted. on the other hand the execution application moved by the decree holder is dismissed as not maintainable as the contract forming the basis of the decree stands rescinded. file be consigned.'4. concededly, no appeal revision was filed by the petitioner against the order dated 12th december, 1987 (ex.a2) and as such, it has become final between the parties. by placing reliance upon order dated 12th december, 1987 and other facts of the case, court below, ordered restoration of possession by taking recourse to the provisions of section 28 of the specific relief act.5. shri g.s. jaswal, advocate appearing on behalf of the petitioner, has vehemently contended that once, he has deposited the amount, as directed by the trial court, vide judgment and decree dated 15th february, 1984, agreement to sell cannot be deemed to have been rescinded, as has been opined by the court below. he further argued that in the alternative, petitioner was entitled to take benefit of the provisions of section 53-a of the transfer of property act, 1882. he prayed that the revision petition be allowed and the order under challenge be set aside.6. having heard counsel for the petitioner, this court is of the opinion that present revision petition is totally mis-conceived one. it is only an attempt by the petitioner to retain possession of the property regarding which, matter had already become final between the parties, when objection application filed by the respondent was allowed by the court below, vide order dated 12th december, 1987. vide that order it was specifically held that since petitioner had failed to deposit rs.500/-, as directed by the trial court, as such, he was not willing to get the sale deed registered. it was also observed by the court below that agreement, on the basis of which decree was passed, be held to have been rescinded, under the provisions of section 28 of the specific relief act. execution application filed by the petitioner was dismissed. it is apparent from the records that the order dated 12th december, 1987 was never challenged and as such had attained finality between the parties. now it is not open to the petitioner to return back and agitate the order of restoration of possession on the same ground on which he had already failed in the year 1987.7. further contention of shri jaswal that the petitioner is entitled to take benefit of the provisions of section 53(c) of transfer of properties act, is also not justified. once, contract/agreement to sell was declared to have been rescinded by the court, then vender is entitled to restoration of possession, which was obtained by the purchaser under that agreement. keeping in view facts and circumstances of this case, trial court has rightly held that the petitioner/decree holder is not protected under section 53(a) of the transfer of property act.8. counsel for the petitioner has failed to cite any precedent to the contrary, on the basis of which, any interference can be made by this court, while exercising its limited revisional jurisdiction.9. no other argument was raised. 10. in view of reasoning given above, this revision petition fails and is accordingly dismissed.