Smt. Satya Devi (Deceased) Vs. M.L. Dogra 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. - on subsequent enquiry, it was found that the petition was dismissed on 4.4.1991. in addition thereto, it has been stated that the case had not been clearly and correctly shown in the cause list. even the name of the counsel was not clearly mentioned. precisely put, it has been urged that, in fact, there were two petitioners, namely, smt. 13 as per cause list dated 18.3.1991. a mere look at the entry reveals that though the civil revision has been correctly mentioned, parties name as well as counsel name, in fact, do not tally. 6. courts have been taking very liberal view on such like matter especially when fault lies with the counsel and not with the litigant. therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the high court to inquire as to what is happening in the high court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed.ordern.k. kapoor, j.1. the present application has been filed to recall the order dated 4.4.1991 on the ground that the petitioner's counsel sh. b.l. bishnoi had shifted to delhi to practice in the supreme court and thus no assistance was rendered for and on behalf of the petitioner. even the petitioner also had no knowledge of the date when the case was to be heard. it has further been stated that the petitioner met his counsel in the high court where he had gone along with his relation and when enquired from his counsel was told that he did not know of the hearing since he has shifted. on subsequent enquiry, it was found that the petition was dismissed on 4.4.1991. in addition thereto, it has been stated that the case had not been clearly and correctly shown in the cause list. even the name of the counsel was not clearly mentioned.2. respondents put in appearance, filed reply by way of affidavit of sh. s.d. bhanot. besides taking some preliminary objections as to the maintainability of the petition, limitation etc, factual averments made by the petitioner have also not been admitted as correct. precisely put, it has been urged that, in fact, there were two petitioners, namely, smt. satya devi and sh. v.p. sardana and thus the death of smt. satya devi will not absolve sh. v.p. sardana, the other petitioner, of his careless attitude. even otherwise, civil revision was decided on 4.4.1991. smt. satya devi died on 28.4.1991. as regards maintainability, it has been stated that the revision petition was heard and decided on merits and thus there is no need to recall the earlier order.3. the matter has remained pending fairly for a long time, sometime on account of non-availability of the counsel and sometimes on account of paucity of time of the court. the matter though short, yet is being seriously contested. the case of the petitioner is that he had no knowledge of the pendency of the revision petition nor his counsel at any given time intimated him in this regard. he had all the time been thinking that as and when his case is fixed for final hearing, the counsel would inform him in this regard which, of course, has not happened in the present case. not only this, even the counsel had no knowledge for the obvious reason as he had already shifted to supreme court at delhi. in these circumstances, the counsel has urged that the petitioner has been deprived of a right of hearing which is essential for just decision of the case.4. learned counsel for the respondents has, however, contested the various submissions made by the counsel for the petitioner. it has been argued that there is no explanation on record as to why sh. v.p. sardana, co-petitioner of smt. satya devi, did not keep track of the revision petition which was ordered to be heard at an early date at his instance. in addition thereto, there is no clear averment in the application as to when sh. b.l. bishnoi shifted to supreme court. no affidavit of sh. b.l. bishnoi had been placed on record. even if it be taken that sh. b.l. bishnoi had already shifted, the petitioner, in fact, had two other counsel, namely, sh. surinder bishnoi and sh. p.c. chaudhary, advocates. this way any of these two counsel ought to have taken care of the pending revision petition. lastly, it was urged that the petition was heard and decided on merit and thus no case is made out for reviewer the earlier order. accordingly, it was prayed that the present petition merits dismissal being devoid of any merit.5. i have heard learned counsel for the parties and perused the review petition and the affidavit of sh. s.d. bhanot. there is no denying the fact that none appeared for the petitioner on 4.4.1991 when the same was decided. this was shown at serial no. 13 as per cause list dated 18.3.1991. a mere look at the entry reveals that though the civil revision has been correctly mentioned, parties name as well as counsel name, in fact, do not tally. parties name read as smt. satya devi v. h.l. dogra and counsel names are b.l. sihani, b.l. daur and ramesh garg. one cannot lose sight of the fact that as per practice prevalent in the high court, the case listed is normally checked by the clerk of the counsel and marked who thereafter draws a list and bring it to the notice of the concerned counsel. the affidavit of the clerk of sh. b.l. bishnoi could have thrown some light on this aspect of the matter. it appears that the counsel shifted to supreme court at delhi and there was none else who was looking after the pending cases of sh. b.l. bishnoi, advocate. in this way the petitioner has certainly been prejudiced. even when the case was put up for pronouncement of judgment on 4.4.1991 the parties name was not correctly shown. this time it was shown as satya devi v. m.c. dogra and counsel sh. h.l. sarin and sh. m.l. sarin.6. courts have been taking very liberal view on such like matter especially when fault lies with the counsel and not with the litigant. the apex court in case reported as rafiq and anr. v. munshilal and anr., a.i.r. 1981 s.c. 1400, in somewhat similar proposition has observed as under:-'the disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. the party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. after engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. at the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the high court to inquire as to what is happening in the high court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed. it is no part of his job...'7. this court in case reported as rajinder singh v. jasvir singh and anr., 1989 p.l.j. 154, has also held that in case of negligence injustice is not to be perpetuated. a party should have a fair opportunity of hearing and costs can be imposed for negligence. costs is panacea for the lapse committed by the petitioner.8. thus in the totality of the circumstance and the fact that the petitioner had no opportunity to place his view point, i recall my earlier order dated 4.4.1991 and restore the civil revision to its original number.9. since i have already expressed my opinion with regard to the merit of the revision petition, it would be appropriate if the same is listed before another bench.

Judgment:
ORDER

N.K. Kapoor, J.

1. The present application has been filed to recall the order dated 4.4.1991 on the ground that the petitioner's counsel Sh. B.L. Bishnoi had shifted to Delhi to practice in the Supreme Court and thus no assistance was rendered for and on behalf of the petitioner. Even the petitioner also had no knowledge of the date when the case was to be heard. It has further been stated that the petitioner met his counsel in the High Court where he had gone along with his relation and when enquired from his counsel was told that he did not know of the hearing since he has shifted. On subsequent enquiry, it was found that the petition was dismissed on 4.4.1991. In addition thereto, it has been stated that the case had not been clearly and correctly shown in the cause list. Even the name of the counsel was not clearly mentioned.

2. Respondents put in appearance, filed reply by way of affidavit of Sh. S.D. Bhanot. Besides taking some preliminary objections as to the maintainability of the petition, limitation etc, factual averments made by the petitioner have also not been admitted as correct. Precisely put, it has been urged that, in fact, there were two petitioners, namely, Smt. Satya Devi and Sh. V.P. Sardana and thus the death of Smt. Satya Devi will not absolve Sh. V.P. Sardana, the other petitioner, of his careless attitude. Even otherwise, civil revision was decided on 4.4.1991. Smt. Satya Devi died on 28.4.1991. As regards maintainability, it has been stated that the revision petition was heard and decided on merits and thus there is no need to recall the earlier order.

3. The matter has remained pending fairly for a long time, sometime on account of non-availability of the counsel and sometimes on account of paucity of time of the Court. The matter though short, yet is being seriously contested. The case of the petitioner is that he had no knowledge of the pendency of the revision petition nor his counsel at any given time intimated him in this regard. He had all the time been thinking that as and when his case is fixed for final hearing, the counsel would inform him in this regard which, of course, has not happened in the present case. Not only this, even the counsel had no knowledge for the obvious reason as he had already shifted to Supreme Court at Delhi. In these circumstances, the counsel has urged that the petitioner has been deprived of a right of hearing which is essential for just decision of the case.

4. Learned counsel for the respondents has, however, contested the various submissions made by the counsel for the petitioner. It has been argued that there is no explanation on record as to why Sh. V.P. Sardana, co-petitioner of Smt. Satya Devi, did not keep track of the revision petition which was ordered to be heard at an early date at his instance. In addition thereto, there is no clear averment in the application as to when Sh. B.L. Bishnoi shifted to Supreme Court. No affidavit of Sh. B.L. Bishnoi had been placed on record. Even if it be taken that Sh. B.L. Bishnoi had already shifted, the petitioner, in fact, had two other counsel, namely, Sh. Surinder Bishnoi and Sh. P.C. Chaudhary, Advocates. This way any of these two counsel ought to have taken care of the pending revision petition. Lastly, it was urged that the petition was heard and decided on merit and thus no case is made out for reviewer the earlier order. Accordingly, it was prayed that the present petition merits dismissal being devoid of any merit.

5. I have heard learned counsel for the parties and perused the review petition and the affidavit of Sh. S.D. Bhanot. There is no denying the fact that none appeared for the petitioner on 4.4.1991 when the same was decided. This was shown at serial No. 13 as per cause list dated 18.3.1991. A mere look at the entry reveals that though the civil revision has been correctly mentioned, parties name as well as counsel name, in fact, do not tally. Parties name read as Smt. Satya Devi v. H.L. Dogra and counsel names are B.L. Sihani, B.L. Daur and Ramesh Garg. One cannot lose sight of the fact that as per practice prevalent in the High Court, the case listed is normally checked by the Clerk of the counsel and marked who thereafter draws a list and bring it to the notice of the concerned counsel. The affidavit of the Clerk of Sh. B.L. Bishnoi could have thrown some light on this aspect of the matter. It appears that the counsel shifted to Supreme Court at Delhi and there was none else who was looking after the pending cases of Sh. B.L. Bishnoi, Advocate. In this way the petitioner has certainly been prejudiced. Even when the case was put up for pronouncement of judgment on 4.4.1991 the parties name was not correctly shown. This time it was shown as Satya Devi v. M.C. Dogra and counsel Sh. H.L. Sarin and Sh. M.L. Sarin.

6. Courts have been taking very liberal view on such like matter especially when fault lies with the counsel and not with the litigant. The apex Court in case reported as Rafiq and Anr. v. Munshilal and Anr., A.I.R. 1981 S.C. 1400, in somewhat similar proposition has observed as under:-

'The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job...'

7. This Court in case reported as Rajinder Singh v. Jasvir Singh and Anr., 1989 P.L.J. 154, has also held that in case of negligence injustice is not to be perpetuated. A party should have a fair opportunity of hearing and costs can be imposed for negligence. Costs is panacea for the lapse committed by the petitioner.

8. Thus in the totality of the circumstance and the fact that the petitioner had no opportunity to place his view point, I recall my earlier order dated 4.4.1991 and restore the civil revision to its original number.

9. Since I have already expressed my opinion with regard to the merit of the revision petition, it would be appropriate if the same is listed before another Bench.