Harjinder Singh Vs. Gurnam Singh 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. - 5. after consideration oral as well as documentary evidence led by the parties, issues 1 and 3 were taken up together. 653 and 654 as per jamabandi for the year 196768. he was, therefore, well within his right to sell 10 marias and he had not sold more than his share in the joint property.b. rai, j.1. this regular second appeal has been directed against the judgment and decree, dated march 3, 1979 of the court of learned additional district judge, ludhiana, of affirmance of the judgment and decree dated april 26, 1978 of the trial court.2. facts are that harjinder singh filed a suit for declaration to the effect that he is in continuous possession as owner of the house measuring 1 kanal 7 marias comprising in khasra no. 654 as entered in jamabandi for the year 1967-68 situated in sawaddi khas, tehsil jagraon shown in red colour in the plan attached and fully described in the head note of the plaint. it was alleged by him that according to the revenue record khasra no. 654 is joint ownership of the plaintiff along with his brothers. however, he alone is in exclusive possession of the same for the last 19 years. he further pleaded that gurnam singh, parmatma singh and jasmel singh are his real brothers. they are in possession of another plot belonging to the parties. according to harjinder singh, he himself raised construction in the plot in dispute and the plot is being used by him for the purpose of storing manure. according to him, respondents 1 to 3 are not in physical possession of any portion of the plot in dispute. it was pleaded that respondent 4 and 5 alleged themselves to be the purchasers of 10 maria of land, out of which plot in dispute is alleged to have been sold by a sale deed by gurnam singh in their favour. he further pleaded that property of the parties already stands partitioned and that whole khasra no. 654 fell to his share. it was averred that on the basis of sale deed allegedly executed by gurnam singh defendant no. 1, defendants 4 and 5 wanted to take possession of 10 marias of land on the eastern side of khasra no. 654 in illegal and forcible manner to which they are not entitled. he requested respondents 4 and 5 not to do so, but they did not accede to his request. hence, he filed the suit, for declaration. in the alternative, a prayer was also made that he be given possession of house measuring 1 kanal 7 marias shown in read colour as co-sharer on the basis of ownership.3. notice of the suit was given to the defendants. however, defendants 1 to 3 did not choose to appear and contest the suit. as such, they were proceeded against ex parte.4. the suit was contested by mukhtiar singh and gulzar singh, defendants 4 and 5, respectively. the defendants pleaded that the area of khasra no. 654 is 2 kanal 7 maria in which gurnam singh had 1/4 share. he constructed one kotha in the area of said 10 marias.thereafter, it was sold to mukhtiar singh and gulzar singh defendants 4 and 5 on june 16, 1971 for a consideration of rs. 5,000/-. it was further pleaded that after the execution of the sale deed, defendants 4 and 5 came into actual physical possession of the property in dispute. as such, the suit is not maintainable in the present form. it was further pleaded that they are bona fide purchasers for consideration without notice. the allegation that the plaintiff had constructed one kotha by spending rs. 1,000/- was specifically controverted. it was also denied that plaintiff had ever planted any tree.following issues were framed by the trial court:1) whether the property sold by defendant no. 1 to defendants no. 4 and 5 had fallen to the share of defendant no. 1 in family partition? opd2) if issue no. 1 is not proved, whether gurnam singh defendant no. 1 as a co-sharer in possession transferred the property in dispute to defendants 4 and 5? opd3) whether the plaintiff is in possession of the property in dispute and the suit for declaration can proceed in the present from? opp4) whether the suit is properly valued for the purposes of court fee and jurisdiction? opp5) whether the suit is within time? opp6) whether the defendants no. 4 and 5 are bona fide purchasers for consideration and without notice? opd7) whether the plaintiff is estopped by his acts and conduct from filing the present suit? opd8) whether the defendants nos. 4 and 5 have effected improvements in the property in dispute, if so, to what extent and of what value? opd9) relief.5. after consideration oral as well as documentary evidence led by the parties, issues 1 and 3 were taken up together. issue no. 1 was decided against the defendants and issue no. 2 was decided in their favour. issue no. 3 was decided against the plaintiff and in favour of the defendants. issues 4 and 5 were not pressed before the trial court. therefore, these issues were decided in favour of the plaintiff. issue no. 6 was decided in favour of the defendants. issues 7 and 8 were also not pressed. as such, these issues were decided against the defendants. consequently, the suit of the plaintiff was dismissed, leaving the parties to bear their own costs, vide judgment and decree, dated april 26, 1978, as mentioned earlier.6. harjinder singh, plaintiff feeling aggrieved, filed an appeal but the same was also dismissed by the learned additional district judge, ludhiana, vide his judgment and decree, dated march 3, 1979.7. i have heard the learned counsel for the parties and have carefully gone through the records. harjinder singh-plaintiff, gurnam singh, parmatma singh and jasmel singh are the real brothers. they had land and abadi plots at village sawaddi khas and also abadi plots at jagraon. gurnam singh and jasmel singh were residing at jagraon, while harjinder singh appellant and parmatma singh were residing at village sawaddi khas. it was argued by the learned counsel for the appellant that all the four brothers effected exchange in respect of abadi plots. the abadi plots at village sawaddi khas were given to harjinder singh appellant and his brother jasmel singh. in lieu of the plots at village sawaddi khas, harjinder singh and jasmel singh relinquished their rights in the abadi plots of jagraon in favour of gurnam singh and parmatma singh. on account of this exchange, gurman singh and parmatma singh had no right in abadi plots at village sawaddi khas. therefore, gurnam singh had no right to sell 10 maria out of the abadi plot at village sawaddi khas in favour of mukhtiar singh and gulzar singh. it was also argued that even the case of respondents was that property was partitioned. the land in dispute fell to the share of gurnam singh respondent no. 1 in family partition who had sold the same to respondents 4 and 5, but the alleged partition has not been accepted by the courts below. it was held by both the courts below that it was a joint property and defendant no. 1 had 1/4 share in that joint property which was sold by him in favour of defendant nos. 4 and 5. the learned counsel further argued that gurnam singh had also sold 10 marias out of the area comprised in khasra no. 654, the total area of which, according to the respondents, is 2 kanals 7 marias but the entries in the revenue record go to show that area of khasra no. 654 is only 1 kanal 7 maria. therefore, according to the learned counsel, even if it is assumed that gurnam singh being a co-sharer had the right to sell, he could sell only 6-3/4 marias and not 10 marias. even in the sale deed, exhibit dl, the area of this khasra no. is mentioned as 1 kanal 7 marias. therefore, in view of this factual position, the courts below came to an erroneous conclusion that gurnam singh could sell 10 marias. as such, the sale to the extent of only 6-3/4 marias could be maintained and not to the extent of 10 marias. it is vehemently argued that vendees cannot claim more area than that gurnam singh could sell. to add to his contention, it was argued that the dispute concerns khasra no. 654 only not in respect of khasra no. 653 which is situated at a different place regarding which there is no dispute. he also referred to site plans, exhibits p1 and d2 and pointed out that the plot in dispute forming part of khasra no. 654 is situated between the houses of mukhtiar singh, gulzar singh vendees and the house of harjinder singh appellant which further goes to show that khasra no. 653 which is situated at a distance, is not in dispute. after carefully scanning the evidence and the records, i do not find any force in the arguments advanced by the learned counsel for the appellant. no documentary evidence is available on the record which may go to show that at any point of time any exchange as has been agreed, was effected. even in the revenue record, there is no entry of any such exchange. no doubt, parmatma singh (pw5) and harjinder singh (pw6) stated that there was exchange of the plots and the suit property had fallen to the share of harjinder singh and parmatma singh. bhajan singh (pw3) also stated that there was exchange of property but he displayed his ignorance as to with whom the exchange was effected. in the absence of any plea, no amount of evidence can be taken into consideration. therefore, their evidence is inconsequential. statement of parmatma singh (pw5) was recorded on may 19, 1977. it was stated by him that about fifteen years ago there was partition between the four brothers. his father had also a house at jagraon. in the partition, gurnam singh and jasmel singh got two houses at jagraon and he (pw5) had the land and houses at village sawaddi khas, but it is not the case of harjinder singh (pw6) that any partition was effected between the brothers and khasra no. 654 had fallen to his share. therefore, the evidence of parmatma singh (pw5) is to be left out of consideration.8. the case of the plaintiff-appellant as set up in the plaint is that he is in possession of khasra no. 654 and he has planted trees and stored manure therein. he has nowhere pleaded that there was exchange of abadi plots at village sawaddi khas and abadi plots in jagraon; and that gurnam singh and jasmel singh had relinquished their right and interest in the abadi plots at village sawaddi khas. the plaintiff-appellant filed the suit on the strength of entries in the jamabandi for the year 1967-68, exhibit p2. in the said jamabandi, khasra no. 654 (1 kanal 7 marlas) is recorded to be the ownership in possession of the four brothers, namely, gurnam singh, harjinder singh, parmatma singh and jasmel singh. that goes to show that khasra no. 654 was jointly owned and possessed by all four brothers. the suit was filed by harjinder singh on february 25, 1976. it is pertinent to note that by the time the suit was instituted, jamabandi for the year 1971-72, exhibit d3, had been prepared and was in force in which khasra no. 653 (1 kanal 0 maria) and khasra no. 654 (1 kanal 7 marias) are recorded to be joint ownership of all the four brothers and in their joint possession. it goes to show that khasra no. 653 and 654 were the joint property of all the four brothers and they were co-sharer therein. therefore, in the area of 2 kanals 7 marias, gurnam singh vendor had 1/4 share, i.e. to the extent of 11-3/4 marias. a perusal of sale deed, exhibit dl, shows that he had sold 10 marias out of khasra no. 653 and 654 as per jamabandi for the year 196768. he was, therefore, well within his right to sell 10 marias and he had not sold more than his share in the joint property. it appears that perhaps with a view to raise the dispute, harjinder singh obtained a copy of the jamabandi for the year 1967-68 only regarding khasra no. 654 and did not obtain the copy of the jamabandi in respect of other khasra number.9. the learned counsel for the appellant has placed reliance on a division bench decision of the patna high court in tarkeshwar prasad tewari v. devan prasad tewari, a.i.r. 1926 patna 180 to contend that exhibit d5 is the certified copy of plaint in a preemption suit filed by hardip singh. appellant harjinder singh was not a party to that suit. the author of the plaint was not examined. the document, exhibit d5, having not been duly proved could not be taken into consideration by the lower appellate court to draw an inference that harjinder singh through his son had challenged the present sale deed in favour of the defendant-respondents, fully admitting gurnam singh to be the owner in possession of the plot. in tarkeshwar prasad tewari's case (supra),' the relationship of defendant no. 1 as son of ramsuraj and his age were in dispute and on that basis, it was alleged that he had no title to the property of the family and a decree for confirmation of his possession or recovery of possession. it was in that situation, the learned judges of the patna high court observed that plaint is not a public document and certified copy of a plaint is not admissible in proof of age of the signatory. where a plaint in a suit is sought to be produced as a piece of evidence in some other proceedings, ordinarily the author of it is to be examined to prove it. the record does not show that at the time exhibit d5 was tendered in evidence and exhibited, any objection was raised regarding its admissibility. if a document is tendered and received in evidence without any objection from the other party and is exhibited, it is not open to that party to object to its admissibility in appeal, much less in second appeal. therefore, the appellant more particularly in the second appeal has no right to raise objection regarding admissibility of exhibit d5. hence, the argument of the learned counsel in that regard pales into insignificance.10. in view of the discussion above, appeal being without merit is dismissed. no costs.