- (1.) THESE are five regular Second Appeals, namely, RSA Nos. 528 of 1977,2134 of 1982,540 of 1987,1656 of 1987 and 411 of 1998, which have been referred to this five-Judge Bench by noticing a conflict between two earlier 3-Judge benches in the case of Joginder Singh Kundha singh v. Kehar Singh Dasaundha Singh, AIR 1965 Punjab 407 and Pritam Singh v. Assistant Controller of Estate Duty, Patiala, 1976 plr 342. The suspected conflict has been pointed out by Hon'ble Mr. Justice S. P. Goyal in the reference order dated 25-4-1980, passed in R. S. A. No. 105 of 1979.
(2.) TO begin with, it may first be appropriate to notice the issue on which two Full benches are stated to have conflict. The aforementioned conflict has been noticed by hon'ble Mr. Justice S. P. Goyal (as he then was) in his reference order dated 25-4-1980, which is required to be read in extenso. The reference order was recorded in Regular Second Appeal No. 105 of 1979 (Mal Singh v. Jassa Singh and others ). Those appeals were eventually withdrawn but the reference has been read in the instant appeals. There the dispute was regarding validity of transfer of land made in pursuance to consent decree by the father in favour of his two sons. The third son had challenged the aforementioned consent decree. The question arose as to whether the father was entitled to alienate the property in his hands by confining it to two sons by way of consent decree. However, the basic dispute noticed by the learned Judge was whether the property in the hands of the father was to be treated as coparcenary property and its alienation was to be governed by the provisions of the Hindu Law as was claimed by the third son or that property was only ancestral property as known to the Customary Law and its alienation, therefore, was not open to challenge. It is in the aforementioned context that the following observations for referring the question to a larger Bench were made in the reference order dated 25-4-1980, which reads thus :- "it is not disputed that the parties are Jats which is predominantly an agricultural tribe and were governed by Customary Law prior to the enforcement of the Hindu Succession act, 1956. According to a recent Full Bench of this Court in Pritam Singh v. The Assistant collector of Estate Duty Patiala, 1976 PLR 342,'the property in the hands of the Sikh Jats would be coparcenary property after the enforcement of the said Act. The learned counsel for the respondents, however, relied on an earlier Full Bench case in Joginder Singh kundha Singh v. Kehar Singh Dasaundha singh, AIR 1965 Punjab 407, wherein it was held that the rules of custom governing alienation were not affected by the enforcement of the Hindu Succession Act and still continue to govern alienation by the persons governed by custom. This decision though was noticed in the later Full Bench case but was held tp be not relevant as it related to the power of alienation of a person governed by custom. The learned counsel urges that the nature and extent of power of alienation has some basic distinctions under the two laws, i. e. the Hindu law and the Customary Law. If the alienation is to be governed by the rules of custom then the alienation can be challenged by any collateral or person connected with the common ancestor of the vendor within the fifth degree but the alienation would be valid during the lifetime of the vendor. On the other hand if the alienation is to be governed by the Hindu law, it can be challenged only if the property is coparcenary property that too only by a coparcener and the alienation would be void even qua the vendor. The concept of ancestral and coparcenary property is also different under the two schools of law. If it is once held that the rules of custom governing alienation made by an agriculturist are not affected by the enforcement of the Hindu Succession act, it necessarily means that the alienation can be challenged if the property is ancestral as known to the Customary Law and by a person who is collateral within the fifth degree. For example, a brother though separate from his other brothers, would be able to challenge the alienation of the property which devolved on the two brothers but had been divided prior to the alienation between them. If that is so then the property in hands of a person governed by customary law cannot be said to be a coparcenary property because in that case the moment the division took place between the two brothers, it ceased to be a coparcenary property and the brother would not be entitled to challenge the alienation made by the other brother of such property. It was next contended by the learned counsel for the respondent that there is no provision in law in dealing with the nature of property in the hands of a particular person for the time being which means that the property continues to be an ancestral property or coparce-nary property as it would have been prior to the enforcement of the Hindu Succession Act. The concept of the coparcenary property which was unknown to the agricultural tribes governed by customary law, therefore, cannot be said to have become applicable by the enforcement of the Hindu Succession Act which only deals with the succession of the property. The Hindu Succession Act regulates only the intestate succession of property of a deceased Hindu. As to what are the rights of the heirs in the property so inherited, this Act has nothing to do so far as male heirs are concerned but in the case of females, they have been made absolute owners of such property. The rights of the male Hindus in the property inherited under the said Act, therefore, continue to be governed by the rules of Hindu 'law or Custom as before with only one exception that a male hindu by virtue of the provisions of Section 30 of the Act has been conferred unfettered powers of disposal of his share in the coparcenary property by Will, which right he did not have prior to the enforcement of the Act. Again, by virtue of the provisions of Section 5 of the Punjab Laws act, in matters of alienations agriculturalists in Punjab and Haryana are governed by the rules of custom and not of Hindu Law. According to the earlier Full Bench case, the rules of custom have not been abrogated by the hindu Succession Act except to the extent a provision contrary to the rules of custom has been made in the said Act. The rule of custom relating to the nature of rights in the property inherited by an agriculturalists, therefore, continue to be applicable even after the enforcement of the Hindu Succession Act. There appears some substance in the contention of the learned counsel but in any case there is an apparent conflict between the two Full Bench decisions noticed above because the two propositions of law that a person is governed by customary law in the matters of alienation and that the property inherited by him from his ancestors is coparcenary property cannot possibly be applicable at the same time to a person governed by rules of custom prior to the enforcement of Hindu Succession Act. The record of this case may, therefore, be put up before Hon'ble the Chief Justice for constituting a larger Bench to resolve the dispute between the said two Full Benches. "
(3.) ACCORDINGLY, reference was made to three-Judge Bench of this Court. When the full Bench met on 28-8-1981, it noticed the contention of the counsel who had canvassed for affirmance of the view taken in Pritam singh's case (supra) by a larger Bench in the interest of judicial propriety. The order passed by the three-Judge Bench on 28-8-1981, referring the matter to five-Judge Bench reads as under :- "s. S. Sandhawalia, C. J. For this reference to a still larger Bench, it is unnecessary to either delineate the facts or to elaborate the issue because the earlier reference to the Full Bench must be deemed to be its integral part. What, however, calls for pointed notice at the outset is the fact that for an issue of considerable significance, rather unusually, we did not have the advantage of any argument on behalf of the respondents. Mr. S. P. Gupta, their learned counsel had forthwith made a prayer that he wished to withdraw from the case and for the reasons stated at the bar, we allowed him to do so. In the aforesaid context, it suffices to mention that even Mr. Ashok Bhan, the learned counsel for the appellant was candidly fair in taking the stand that in fact there appeared to be some divergence of opinion in the two Full bench judgments of this Court reported in joginder Singh Kundha Singh v. Kehar Singh dasaundha Singh, AIR 1965 Punjab 407, and pritam Singh v. The Assistant Controller of estate Duty, Patiala, 1976 PLR 342. Even when pressed, the learned counsel admitted his inability to meaningfully distinguish the earlier Full Bench from the later one. Though counsel canvassed for the acceptance of the view in Pritam Singh's case (supra), he was fair enough to state that judicial propriety demanded that the affirmance of that view should be by a larger Bench because according to him, there were observations to the contrary, both in Joginder Singh Kundha Singh's case (supra), and in a still earlier Full Bench in Amar Singh v. Sewa Ram AIR 1960 Punjab it thus appears inevitable that this matter must now be considered by a larger Bench. Even otherwise, the issues here are of such significance having larger ramifications so as to merit a very authoritative pronouncement. We accordingly direct that this case be placed before a Bench of five Judges. Sd/- S. S. Sandhawalia, chief Justice. Sd/- Prem Chand Jain, judge sd/- S. P. Goyal, judge. August 28, 1981";