Punjab-Haryana High Court
Surinder Pal Singh Son Of Kanwar Jag ... vs Jaspreet Singh Son Of Harpreet Singh Son ... on 19 December, 2012
Author: K. Kannan
Bench: K. Kannan
C.R. No.7124 of 2012 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.7124 of 2012
Date of Decision. 19.12.2012
Surinder Pal Singh son of Kanwar Jag Singh son of Gurdial Singh resident
of village Jgaroli Khurad, Tehsil Shahabad, District Kurukshetra
.....Petitioner
Versus
Jaspreet Singh son of Harpreet Singh son of Harinder Singh resident of
Jharoli Khurd and others .....Respondents
Present: Mr. S.R. Hooda, Advocate
for the petitioner.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
1. When the matter was brought up for admission on 29.11.2012, I adjourned it to 30.01.2013. The petitioner has moved an application for stay in C.M. No.30148-CII of 2012 and sought for immediate orders. I directed the counsel to argue on all the points when the matter was brought up for hearing on 07.12.2012 and adjourned the case to 11.12.2012. The case was argued by the petitioner and I reserved the case for orders. I have proceeded to pass the following order.
2. The revision is against the order passed by the Civil Judge, Kurukshetra dismissing an application for direction to the Kanungo to complete the "deficiency in excerpt" . The petitioner, who was also the plaintiff in suit has filed a suit for declaration that the plaintiff was the owner of the share of the properties mentioned in the properties listed C.R. No.7124 of 2012 -2- out in the schedule to the plaint and left behind by late Rajinder Singh son of Devender Singh in the estate of village Jharoli. The plaintiff's contention is that it is a jagir estate of Rajinder Singh and that Bhupinder Singh and Harender Singh had no right to succeed to jagir property left behind by Rajinder Singh and that the plaintiffs themselves being the collaterals of Rajinder Singh's sons and sisters were entitled to the property. In effect, they were seeking for a contention that the property, which was part of jagir estate belonged to the plaintiffs and the mutation effected in favour of the defendants purporting to be heirs of Rajinder Singh was not valid and binding on them.
3. It appears that there had been a direction given already by the Court to the Kanungo to prepare the excerpt relating to genealogy from the time of Sardar Bahadur Singh that they had come by succession, the paternal grandfather of Rajinder Singh. The plaintiff had a grievance that in the preparation of excerpt by the Kanungo, he had failed to note the relevant entries in the year 1946-47 and 1958-59. The application was resisted by the respondents contending that the excerpt was being prepared on the basis of jamabandi filed by the plaintiff and it was not clear from where the Kanungo was required to collect the details for preparation of the excerpt. The Kanungo Sham Lal Sunder had given his report and he has been also examined as witness on 11.12.2007. The case has been adjourned for nearly 35 hearings for further examination. The Court found no good reason to allow for the matter to be remitted to the Kanungo again for preparation of the excerpt relating to genealogy.
4. I find the entire exercise indulged by the petitioner to be a C.R. No.7124 of 2012 -3- wholesale waste of judicial time. I cannot quite understand the basis of the plaintiff's claim itself. If the plaint were to be understood that in an erstwhile jagir estate, the succession would not go to a descendant alone in the male line but would go to a collateral, it means that the plaintiff was actually pleading for a right out of sync with the scheme of succession under the Hindu Succession Act. It is even doubtful whether there could exist any custom or right, which is contrary to the provisions of the Hindu Succession Act by virtue of Section 4 of the Hindu Succession Act, which overrides all customs or rights to the contrary. The Act itself provides certain exceptions and Section 5 is one such exception. Section 5 excludes from the purview of the Hindu Succession Act (i)any property to which succession is under the Indian Succession Act for parties, whose marriage was solemnized under the Special Marriage Act; (ii) any estate, which descends to a single heir by the terms of any covenant of agreement entered into by the ruler of Indian State with the Government of India before the commencement of the Act (rule of Primogenitor) and (iii) succession pertaining to Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board. The jagir does not come under any of the three classes.
5. Since I had doubt about the frame of the suit, I sought the counsel to explain as to how the plaintiff was making the claim and how the application for remitting the matter to the Commissioner for preparation of an excerpt was relevant for the purpose of the case. The learned counsel refers me to the Punjab Jagirs Act, 1941 as applicable to Jagir's estate and that it marks an exception to the applicability of C.R. No.7124 of 2012 -4- the Hindu Succession Act. Learned counsel would make a pointed reference to Section 7 of the Jagirs Act, 1941 that spells out to a rule of descent in the family of Jagirdar, which reads as follows:-
"7. Rule of descent in family of jagirdar.(1) Where Government has heretofore declared or at any time hereafter declares that any rule of descent in respect of succession to any jagir shall prevail in the family of Jagirdar, such rule of descent shall be deemed to prevail, and to have prevailed from the time when the declaration was made, anything any any law or contract to the contrary notwithstanding;
Provided that no such declaration shall hereafter be made unless and until-
(a) Government is satisfied that the rule of descent to be so declared actually prevails in the family and has been, continuously any without breach, observed in all successions (if any) to the Jagir since it was made; or
(b) the jagirdar or his successor in interest for the time being has, any written instrument duly executed by him, either before or after the passing of this Court, signified, on behalf of himself and his family, acceptance of the rule of descent to be so declared, and either no succession has taken place since such acceptance or else in any successions which have taken place, since such acceptance the jagir has in fact not developed otherwise than it would have devolved had the said rule of descent been in force.
(2) any declaration made under sub-section (1) may be amended, varied or rescinded by Government, but always subject to the proviso thereto."
6. I cannot again apprehend as to how this could be relevant, for all that the Section 7 sets out is that if the Government had declared any rule of descent in respect of succession to any jagir, the same shall prevail in the family of Jagirdar, notwithstanding any law or contract to the contrary. I have seen through the averment in the plaint but I do not find that there is any reference to any rule of descent as being prepared or made by the Government at the time of grant. It must be understood that Jagirdar as defined in the Punjab Jagirs Act, 1941 is C.R. No.7124 of 2012 -5- holder of a grant that falls within the definition of a jagir. This is an imperial legislation that recognized the role of intermediaries for collection of revenue on behalf of the British and the power granted to Jagirdar to collect revenue from ryots. An estate, which is granted to a Jagirdar for administration for collection of revenue is normally in the nature of a grant by the erstwhile ruler and the succession to such grant is protected through the terms of the grant. I do not find anywhere in the plaint relating to the term of the grant.
7. If the contention were to be that a collateral shall be preferred to an immediate descendant, it is certainly a rule of exception to the Hindu Succession Act itself. That exception must be possible through a term of the grant, which should be established at the trial. No purpose will be served by having an excerpt made through a Kanungo. A Kanungo is merely a village official, who is custodian of village records. He cannot create any rights. He is at best competent to elicit information from the records as to the names of persons, who have held the Jagir over a period of time. It shall be always possible for the plaintiff to apply for certified copies of such documents that have a bearing to the holdings of the Jagir at various points of time. A Kanungo cannot be permitted to substitute the place of a Court, nor can a Court abdicate its own power to allow for a Kanungo to determine how the rights of parties are to be decided. This is essentially a judicial function that cannot be substituted by appointment of a commissioner to prepare an excerpt. The provisions under Order 26 of CPC itself could be invoked only for specific reasons adumbrated under the Code. Rule 1 Order 26 makes possible the issue for examination of interrogatories for C.R. No.7124 of 2012 -6- collection of evidence from persons, who are residents within the jurisdiction but who were exempted from attending the court or from sickness or infirmity unable to attend. The Court has also a power to issue commission under Rule 4 for examination and commission of any person resident beyond the local limit of jurisdiction or any person who is about to leave such limit before the date on which he is required to be examined in Court or any person in the service of the Government, who cannot in the opinion of the Court attend without detriment to the public service. Rule 9 is to make local investigations. A Kanungo does not make any investigation on a spot to prepare the report. On the other hand, what is sought by the plaintiff is for preparation of an excerpt from the village records. That cannot fall within Rule 9 as well. Rule 10-A contemplates preparation of a commission for scientific investigation. Rule 10B contemplates a commission for performance of a ministerial act. Rule 10C relates to commission for the sale of movable property among the several activities, which are mentioned. Rule 10B makes possible for preparation of ministerial act, which could include extracting from the original records in the custody of a public official, matters what are relevant before the Court. I have already observed that evidence relating to pedigree is a matter of evidence that can be brought by parties, who are aware of the relationship inter se to the extent to which they are relevant. A method of obtaining certified copies is the best method of proving what the entries contained and it will be a risky proposition to leave it to an official to make extract and then give a report in Court. The original order of the Court allowing for a Kanungo to prepare an excerpt is itself not in challenge before me and C.R. No.7124 of 2012 -7- therefore, I am not prepared to go into the question of whether at all the Court should have allowed for preparation of an excerpt through the Kanungo. That order remains but when the question that now arises is whether the matter must go back to the Kanungo. I am of the view that no further violation to the provision of the Code should be tolerated and Courts itself shall no longer abdicate its power to decide of what is required to be judicially determined in suit.
8. If the plaintiff were to be understood, in the manner in which a case is proferred in Court that he seeks for information in order to prove that the plaintiff as the nearest collateral to the last holder of the Jagir namely Rajinder Singh, he would be entitled to give such evidence through persons competent to speak about the relationship between parties. A rule against hearsay is the norm but exception to the rule by direct evidence is available under the Evidence Act itself. Section 32 of the Indian Evidence Act sets out the cases in which the statement on relevant facts by persons, who are dead or who cannot be found could be relevant. Clause (5) is in relation to statement of witness that relates to existence of relationship. The clause reads as follows:-
"(5) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised or is made in will or deed relating to family affairs; "
9. This is normally understood as an exception to hearsay evidence by persons, who are competent to speak about a pedigree or relationship in families if entered in records. That evidence must be C.R. No.7124 of 2012 -8- available through any person competent in the village either as a blood relation or in some way related and who knows or heard about the nature of relationship between parties. The pedigree table of what the plaintiff refers to in his plaint would require to be proved in the manner that is legally permissible. That need not be done only through a preparation of an excerpt through Kanungo. The exercise undertaken by the plaintiff is a needless luxury and correctly dismissed by the Court. I would find no reason to interfere with the same.
10. The revision petition is dismissed.
(K. KANNAN) JUDGE December 19, 2012 Pankaj*