Smt. Raj Kumari Vs. Shri Lal Chand - 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. - in the statement of the petition-writer as well as in the statement of the plaintiff, it has come on record that plaintiff was not in a position to produce the document because the persons in whose possession the document could be found, are either dead or have denied the execution of the document.v.k. jhanji, j.1. this revision petition is directed against the order of the trial court whereby application filed by the plaintiff to prove memorandum of partition dated 4.2.1978 by way of secondary evidence, was dismissed.2. plaintiff (petitioner herein) filed a suit, against her brother, lal chand, for possession by way of partition of the properties as fully detailed in the body of the plaint, on the allegation that her father, hem raj, was the owner and on his death, she became entitled to inherit the property to the extent of half share. defendant (respondent herein) in his written statement set up a will alleged to have been executed by the deceased-father, in his favour. in the replication plaintiff alleged that the defendant along with his father and uncle executed memorandum of partition dated 4.2.1978. during the course of evidence, an application was filed by the plaintiff to prove memorandum of partition by way of secondary evidence. on contest, this application was dismissed by the trial court primarily on the ground that plaintiff had no-where alleged in her application that as to how the document was lost, destroyed or was in possession of the defendant. the trial court further held that 'secondary evidence can only be lead in-case the original is in possession of the person, against whom the document is sought to be produced or the original has been lost or destroyed. but there is no such plea of the plaintiff in her application. this order is now being impugned by the plaintiff in the present revision petition.3. having heard the learned counsel for the parties, i am of the view that the revision petition deserves to succeed. plaintiff in her pleadings made a specific mention of the memorandum of partition. in her application to prove that document by way of secondary evidence, she stated that there is no other person alive except the defendant, who executed and signed the document and the entry of the same in the petition-writer's register. in reply to this application, defendant denied having executed this document. on the application, the trial court framed an issue 'whether the applicant is entitled to secondary evidence regarding the memo of partition dated 4.2.1978.' in support of this issue, plaintiff gave her statement as a.w. 1 and also examined the petition-writer in whose register the entry of this document was made. petition-writer in his statement, stated that the document in original, along with its copy, was given to hem raj and ram nath, i.e. father and uncle of the parties. plaintiff in her statement stated that she made enquiries from the sons and daughters of ram nath, but they showed their ignorance with regard to whereabouts of the document in question. hem raj, father, is dead and the defendant has denied the execution of the document. thus, the plaintiff has successfully proved on record that the original document has been lost. secondary evidence is permissible when the original document has been destroyed or lost or when the party offering evidence of its contents, cannot for any reason, not arising from his own default or neglect, produce it in reasonable time. a party seeking permission to produce secondary evidence regarding a document, is not required to prove the loss of document in absolute terms. the trial court while dismissing the application seems to have lost sight of the fact that once it allowed the parties to lead evidence on the issue framed on the basis of allegations made in the application, then the averments made therein have to be read in the light of evidence produced on the said issue. in the statement of the petition-writer as well as in the statement of the plaintiff, it has come on record that plaintiff was not in a position to produce the document because the persons in whose possession the document could be found, are either dead or have denied the execution of the document. in this view of the matter, the order of the trial court cannot be sustained.4. consequently, the revision petition is allowed and the order of the trial court is set aside. petitioner-plaintiff shall be entitled to prove the entry in the register of the petitioner-writer in respect of memorandum of partition dated 4.2.1978. respondent-defendant of course, shall also be entitled to lead evidence in rebuttal to the same. no costs.5. parties through their counsel are directed to appear before the trial court on the date already fixed i.e. 11.10.1993.