Chhinder Singh and ors. Vs. Paramjit Kaur - 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. - besides, the plaintiff in any case has failed to specifically prove the extent of damages actually suffered by her as well as the expenses incurred on her treatment and the impugned judgment and decree passed by the learned lower appellate court, it is contended, is without basis.s.s. saron, j.1.this appeal has been filed by the defendants-appellants against the judgment and decree dated 11.4.2005 passed by the learned additional district judge, moga, whereby the suit of the plaintiff-respondent seeking damages has been decreed and an amount of rs 82,000/- has been ordered to be paid by the defendants jointly and severally to the plaintiffs respondents.2. plaintiff-paramjit kaur who is minor through her mother and natural guardian filed a suit for recovery of rs. 2.00 lakhs as damages-cum-compensation on account of injuries caused to her by the defendants appellants. the suit was filed being an indigent person being minor. it was alleged in the suit that she has been residing with her mother and on 6.4.1999 at about 4.45 p.m. all the defendants-appellants came to her father's house. they were armed with deadly weapons and started abusing her and her other family members. the father of the plaintiff asked them not to do so and they caused injuries to him as also to the mother of the plaintiff. besides, injuries were also caused to the plaintiff herself on the head and other parts of her body. the plaintiff remained admitted at the daya nand medical college hospital, ludhiana, for the period from 7.4.1999 to 13.5.1999, the head injury on the person of the plaintiff was opined to be dangerous to life. she spent about rs. 1.00 lakh on her medical treatment. regarding the incident, case f.i.r. 55 dated 7.4.1999 for the offences under sections 307/324/452 i.p.c. etc. was also registered. even after discharge from the hospital, the plaintiff remained under medical treatment and she has not fully recovered. the defendants contested the suit on various grounds. it was alleged that the suit is not maintainable and the plaintiff has no locus standi or cause of action. besides, the suit was a counter blast to the suit filed by jagsir singh (respondent no. 4) in order to extract money from the defendants in a wrongful manner. in fact, on 6.4.1999 at about 4.45 p.m. jagsir singh (respondent no. 4) along with paramjit kaur and charat singh was going to his house from a karyana shop. on the way, they were waylaid by the persons from the plaintiffs' side who were armed with deadly weapons and were raising 'lalkaras' and saying that the defendants would be taught a lesson for raising 'khanghura' (clearing the throat as a challenge) and they caused injuries. paramjit kaur (plaintiff) had also caused injuries to jasgir singh (defendant no. 4) but her head struck against the wall and she suffered injuries on her head. the plaintiff filed replication and the suit was contested. the learned civil judge (sr divn), moga, after examining the evidence and material on record, vide his judgment and decree dated 28.8.2004 partly decreed the suit of the plaintiff to the extent of rs. 50,000/- as damages with costs along with interest @ 12% p.a. from the date of institution of the suit till realization of the amount. this was, however, subject to payment of proportionate court fee. the defendants-appellants, aggrieved against the judgment and decree of the learned trial court assailed the same before the learned appellate court. the learned additional district judge, moga, vide his judgment and decree dated 11.4.2005 dismissed the appeal and enhanced the quantum of damages to the extent of rs. 82,000/- to be paid by the defendants-appellants jointly and severally. the said judgment and decree, as already noticed, is assailed in this appeal.3. learned counsel appearing for the defendants-appellants has contended that the learned lower appellate court had no jurisdiction to enhance the amount of damages awarded by the trial court when no appeal had been filed by the plaintiff-respondent. therefore, it is contended that the impugned judgment and decree is vitiated on this count. besides, the plaintiff in any case has failed to specifically prove the extent of damages actually suffered by her as well as the expenses incurred on her treatment and the impugned judgment and decree passed by the learned lower appellate court, it is contended, is without basis. besides, it is contended that reliance has been placed on the judgment dated 25.7.2003 passed by the learned additional sessions judge, moga, in the criminal case. against the said judgment, an appeal has been filed by the defendants and the sentence has been suspended.4. i have given my thoughtful consideration to the contentions of the learned counsel for the defendants-appellants.5. the primary contention that has been raised is that the learned lower appellate court could not enhance the damages awarded by the trial court when no appeal had been preferred by the plaintiff. in this regard, it may appropriately be noticed that the learned additional district judge has, on appreciation of facts and circumstances of the case, considered the evidence and material on record. it was observed by the learned additional district judge, as follows:the occurrence is admitted. head injury of the plaintiff is also admitted. treatment of the plaintiff at dmc from 7.4.1999 to 13.5.1999 remained undisputed. so medical expenses are assessed to be rs. 20,000/-, rs. 5,000/- as (sic. is) assessed towards pain and agony, rs. 5,000/- (over above already assessed) is assessed towards special diet and rs. 2000/- is assessed towards special conveyance required for shifting the plaintiff to the hospital and back along with incidental expenses. so in this manner, adding to the amount already awarded rs. 50,000/- the aforementioned amount, the total compensation comes out to rs. 82,000/-. in this manner, the verdict on issue no. 1 is modified to the extent that the defendants are jointly and severally liable to make payment of compensation of rs. 82000/- to the plaintiff, rs. 2000/- is assessed as counsel fee.the said findings have been reached at after appreciation of evidence and material on record. the lower appellate court has power in terms of order 41 rule 33 c.p.c. to pass a decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. besides, this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties who may not have filed any appeal or objection. therefore, the learned lower appellate court has the power to pass a decree which ought to have been passed or made and the said power can be exercised notwithstanding the fact that the respondent in the appeal has not appealed against the same. as such, keeping in view the provisions of order 41 rule 33 c.p.c, the exercise of power by the learned lower appellate court in the facts and circumstances of the case cannot be said to be unreasonable or without jurisdiction.6. the other contentions as regards the assessment of damages and the award of the same, it may appropriately be noticed that the same are based on factual consideration of the evidence and material on record which is not shown to be in any manner improper or irrational. no questions of law are involved in the case and findings and conclusions reached at by the learned lower appellate court are based on appreciation of facts and material placed on record. in the circumstances, there is no ground for interference by this court in this r.s.a.7. for the fore going reasons, there is no merit in this appeal and consequently the same is dismissed.