Mohinder Singh vs Kesar Singh and Others

V.K. Jhanji, J.—This is defendant''s second appeal.

Kesar Singh, now being represented by his legal representative, brought a suit for declaration under custom that the sale made by his father Bakhtawar Singh would not affect his reversionary right. On contest, suit was dismissed by the Trial Court but on appeal by the plaintiff suit was decreed. During the pendency of the second appeal, Section 7 of the Punjab Custom (Power to Contest) Act, 1920 was amended by the Punjab Custom (Power to Contest) Amendment Act (12 of 1973). After the said amendment, no person had any right to contest any alienation of immovable property, whether ancestral or non-ancestral on the ground that such an alienation was contrary to custom. On account of the amendment, the appeal was allowed and consequently, the suit filed by the plaintiff was dismissed. Plaintiff took the matter in appeal to the Supreme Court. Appeal of the plaintiff alongwith other connected appeals was decided by a common order dated 20.11.1990. Before the Supreme Court it was argued that the case of plaintiff under the Hindu Law was not gone into by the High Court. In view of this submission the Apex Court in the concluding para of the judgment directed as follows :-

"As we find that in these appeals the cases of the appellants under Hindu Law were not gone into by the High Court or lower courts, we order the cases to be sent back forthwith to the High Court and direct the High Court to examine the cases of the willing appellants under Hindu Law after hearing the parties and, if needed, giving them opportunity to adduce further necessary evidence. The willing appellants may appear before the High Court for necessary instructions in this regard. We order accordingly."

Pursuant to the said directions, the appeal has been placed before me for hearing.

It has been contended by the learned counsel for the defendant that the plaintiff contested the alienation made under the provisions of the Punjab Custom (Power to Contest) Act, 1920. The evidence on record of the case brought by the plaintiff was that the vendor was an agriculturist and governed by agricultural custom and the family business of transport did not furnish a legal necessity under the customary law because the agriculturist could not have the legal necessity of selling his agricultural land for entering into or expanding any business. Counsel contended that under the Hindu Law, however, alienation of ancestral property for carrying on or expanding family business is a legal necessity. He further contended that the land in dispute is ''no longer an agricultural land and is urban immovable property within the municipal limits of Khanna town. Another contention raised by him is that the plaintiff is estopped from pleading that he is governed by Hindu Law after having specifically proved that his family is governed by agricultural custom. It has further been contended that there is no pleading by the plaintiff that the property is a joint Hindu family property or there had been any restriction under the law in regard to its sale. Counsel thus, has prayed that the case be remanded to the Trial Court as these matters have to be brought on record of the case for deciding the suit in accordance with the principles of Hindu Law. Against this, learned counsel for the plaintiff has contended that the pleadings are not required to be amended as the direction of the Hon''ble Supreme Court is to decide the case on the basis of Hindu Law. He also contended that as sufficient evidence has already been brought on record, no further opportunity is required to be given to the defendant to fill in the lacuna.

After hearing the learned counsel and going through the record, I am of the view that without giving opportunity to the parties to amend the pleadings or to lead evidence on the amended pleadings, the case of the plaintiff on the basis of Hindu Law cannot be decided effectively. Plaintiff''s case throughout has been on the basis of agricultural custom and on account of the amendment in the Punjab Custom (Power to Contest) Act, 1920, the right to impeach the alienation under the Customary Law has been taken away. Defendant throughout had been defending the suit by considering that the suit is on the basis so agricultural custom. In second appeal, defendant cannot be taken by surprise and be asked to defend a the suit as one filed under the Hindu Law. The principles of natural justice require that an opportunity should be given to the defendant to show that this sale made was for benefit of the estate. Thus, in these circumstances, the judgment and decree of the Courts below has to be set aside as in my view, retrial is necessary for proper decision of the case. Consequently, the appeal is allowed and judgment and decree under appeal set aside, and the suit is remanded to the court of Additional Civil Judge (Senior Division), Khanna, for deciding the same afresh on merits. On appearance by the parties before him, an opportunity shall be given to the plaintiff to amend the plaint. In case amendment is not considered necessary by the plaintiff, then defendant shall be given an opportunity to amend the written statement. On completion of the pleadings, necessary issues shall be framed and the parties shall be given opportunity to lead evidence on the issue so framed. Trial Court shall make an endeavor to dispose of the suit finally within one year from the date of appearance of the parties before it.

Parties through their counsel are directed to appear before the Additional Civil Judge (Senior Division), Khanna on 13.10.1997.