Harnek Singh Vs. Bant 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.orderv.s. aggarwal, j.1. harnek singh petitioner has preferred the present revision petition against the order passed by the learned additional senior subordinate judge, ropar dated 4.4.1994. by virtue of the impugned order the objections filed by the petitioner have been dismissed.2. bant singh had filed a civil suit at ropar. it was decided by shri r.n. moudgil, sub judge, 1st class, ropar on 18.12.1996. a mandatory injunction was is sued directing kehar singh and others to remove the obstruction. in execution of the said decree, the present petitioner preferred objections.3. claim of the petitioner is that he is owner in possession of the property through which the decree-holder seeks to pass daily used water of his house. the judgment and the decree dated 18.12.1986 passed by the learned sub judge 1st class, ropar is illegal, null and void. it cannot be executed qua the petitioner; in other words cannot pass the water through the land of the petitioner. a family settlement of june, 1979 was asserted by virtue of which the petitioner claimed that he is owner in possession of the said land. he is not a party to the civil suit and thus is not bound by the judgment and the decree dated 18.12.1986. yet another plea taken up has been that water is already passing through the alternative channel which has been made by the gram panchayat. thus, there is no obstruction in the flow of the water. the passing of the dirty water would be nuisance.4. in reply the decree-holder took up the preliminary plea that objections are not maintainable. it was pointed that earlier the judgment-debtors contested. they filed appeal against the judgment and decree of the trial court passed in the year 1986 and did not succeed. present objections have simply been filed to delay the execution. it was denied that petitioner-objector is the owner of the land through which the water has to pass.5. the learned trial court framed the issues and concluded that there is no merit in the objections. accordingly, the objection petition was dismissed. hence, the present writ petition.6. it is not being disputed during the course of arguments that the petitioner even had filed a suit for declaration that judgment and decree dated 18.12.1986, is null and void. the said suit was tried by the additional senior subordinate judge, kharar, and the same was dismissed on 16.1.1993. once, the said suit has been dismissed by the court of competent civil jurisdiction at kharar, indeed the petitioner cannot file objections. that would be an abuse of the process of the court. in that view of the matter, it was rightly pointed out that present revision petition is totally without merit.7. irrespective of the aforesaid, the objections in any case were not maintainable in view of section 47 of the code of civil procedure. it reads :-'47. questions to be determine by the court executing decree - (1) all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.(2) (************)(3) where a question arise as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.(explanation i- for the purpose of this section a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.(explanation ii- (a) for the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and(b) all questions relating to the delivery of possession of such property to such purchaser or his representatives shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section)'.the code of civil procedure specifically permits the parties to the litigation and their representatives to raise and contest plea pertaining to execution, discharge and satisfaction of decree. the petitioner does not even allege that he is the legal representative of the judgment-debtor. being so, indeed he could not raise the objections in execution. in the case of nand lal v. inderjit and ors., (1992-2)102 punjab law reporter 9, it was held that when objector is not claiming himself to be the legal representatives of the judgment-debtor, he can only file a civil suit and not the objection petition. similar, is the position herein and it is crystal clear that objection in any case were not maintainable.8. during the course of arguments, learned counsel for the petitioner pointed that panchayat has set up a drain and the water of the decree-holder respondent is passing through the same. he suggested that a local commissioner can be appointed to verify the said fact. but indeed even if the panchayat has set up a drain, it will not take away the civil right of the decree-holder in pursuance of the judgment and the decree of the court. no useful purpose is going to be served by appointing a local commissioner. in those circumstances, it must follow that the revision petition is totally devoid of any merit. accordingly, it is dismissed. no order as to costs.

Judgment:
ORDER

V.S. Aggarwal, J.

1. Harnek Singh petitioner has preferred the present revision petition against the order passed by the learned Additional Senior Subordinate Judge, Ropar dated 4.4.1994. By virtue of the impugned order the objections filed by the petitioner have been dismissed.

2. Bant Singh had filed a civil suit at Ropar. It was decided by Shri R.N. Moudgil, Sub Judge, 1st Class, Ropar on 18.12.1996. A mandatory injunction was is sued directing Kehar Singh and others to remove the obstruction. In execution of the said decree, the present petitioner preferred objections.

3. Claim of the petitioner is that he is owner in possession of the property through which the decree-holder seeks to pass daily used water of his house. The judgment and the decree dated 18.12.1986 passed by the learned Sub Judge 1st Class, Ropar is illegal, null and void. It cannot be executed qua the petitioner; in other words cannot pass the water through the land of the petitioner. A family settlement of June, 1979 was asserted by virtue of which the petitioner claimed that he is owner in possession of the said land. He is not a party to the Civil suit and thus is not bound by the judgment and the decree dated 18.12.1986. Yet another plea taken up has been that water is already passing through the alternative channel which has been made by the Gram Panchayat. Thus, there is no obstruction in the flow of the water. The passing of the dirty water would be nuisance.

4. In reply the decree-holder took up the preliminary plea that objections are not maintainable. It was pointed that earlier the judgment-debtors contested. They filed appeal against the judgment and decree of the trial court passed in the year 1986 and did not succeed. Present objections have simply been filed to delay the execution. It was denied that petitioner-objector is the owner of the land through which the water has to pass.

5. The learned trial Court framed the issues and concluded that there is no merit in the objections. Accordingly, the objection petition was dismissed. Hence, the present writ petition.

6. It is not being disputed during the course of arguments that the petitioner even had filed a suit for declaration that judgment and decree dated 18.12.1986, is null and void. The said suit was tried by the Additional Senior Subordinate Judge, Kharar, and the same was dismissed on 16.1.1993. Once, the said suit has been dismissed by the court of competent civil jurisdiction at Kharar, indeed the petitioner cannot file objections. That would be an abuse of the process of the Court. In that view of the matter, it was rightly pointed out that present revision petition is totally without merit.

7. Irrespective of the aforesaid, the objections in any case were not maintainable in view of Section 47 of the Code of Civil Procedure. It reads :-

'47. Questions to be determine by the Court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) (************)

(3) Where a question arise as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.

(Explanation I- For the purpose of this section a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

(Explanation II- (a) For the purposes of this Section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representatives shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section)'.

The code of civil procedure specifically permits the parties to the litigation and their representatives to raise and contest plea pertaining to execution, discharge and satisfaction of decree. The petitioner does not even allege that he is the legal representative of the judgment-debtor. Being so, indeed he could not raise the objections in execution. In the case of Nand Lal v. Inderjit and Ors., (1992-2)102 Punjab Law Reporter 9, it was held that when objector is not claiming himself to be the legal representatives of the judgment-debtor, he can only file a civil suit and not the objection petition. Similar, is the position herein and it is crystal clear that objection in any case were not maintainable.

8. During the course of arguments, learned counsel for the petitioner pointed that Panchayat has set up a drain and the water of the decree-holder respondent is passing through the same. He suggested that a local commissioner can be appointed to verify the said fact. But indeed even if the Panchayat has set up a drain, it will not take away the civil right of the decree-holder in pursuance of the judgment and the decree of the court. No useful purpose is going to be served by appointing a Local Commissioner. In those circumstances, it must follow that the revision petition is totally devoid of any merit. Accordingly, it is dismissed. No order as to costs.