CWP No.16194 of 1990 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16194 of 1990 (O&M) Date of Decision: 24.05.2011 Nar Singh ... Petitioner Versus State of Haryana and Ors. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Vikram Punia, Advocate , for the petitioner. Mr. S.S. Goripuria, DAG, Haryana, for respondents No.1 and 2. None for respondents No.3 to5. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? YES 3. Whether the judgment should be reported in the digest? YES K. KANNAN, J. (Oral) 1. The writ petition challenges the order of the Financial Commissioner affirming the decision taken already that the petitioner's holding was attracted to the provisions of Haryana Ceiling on Land Holdings Act, 1972. The declaration that the petitioner's holding was in surplus, was made on 30.12.1980 on the basis of a mutation sanctioned in favour of the petitioner's minor son Shri Krishan on 19.09.1978. The mutation itself was in relation to a property that had belonged to the petitioner's sister Phool Kaur. The property was claimed by the petitioner through his son under alleged oral Will of Phool Kaur which according to the petitioner had taken effect on the death of Phool Kaur on 06.09.1973. CWP No.16194 of 1990 (O&M) -2- 2. It is not in dispute that if the property had come to his son from Phool Kaur, the holding of the petitioner was liable for being treated as attracted to the provisions of the Ceiling Act. In the meanwhile, sister Daya Kaur staked share to the property of her sister as a coheir the petitioner through a suit for declaration in a Civil court. The petitioner had claimed the right to the property for his minor son through an oral Will. It appears that the suit was dismissed but in an appeal, the Appellate court granted a decree on 15.02.1984 declaring Daya Kaur to be entitled to an equal share as the petitioner as coheir to Phool Kaur. 3. Consequent on the decree of the Civil court, a share to Daya Kaur with the resultant reduction in the extent of holding of the property in the hands of the petitioner and his family, the petitioner moved a petition before the Collector for appropriate correction and withdrawal of action under the Act. The matter appears to have been sent to the Commissioner for adjudication who held that the case was not required to be referred to the Financial Commissioner since the right which the sister Daya Kaur was claiming was subsequent to the appointed day under the Act and under Section 12(4) that Civil court decree was liable to be ignored as not making any modification of the holding of the owner. The Financial Commissioner referred to a Full Bench decision of this Court in “Jaswant Kaur v. The State of Haryana and another, 1997 PLJ, 230” to enter a finding that the decree obtained cannot be taken into account in determining the surplus area of a person. This decision was affirmed by the Financial Commissioner and the present writ petition challenges these orders. Learned counsel appearing for the petitioner contends that the Commissioner and the Financial Commissioner misinterpreted the decision of the Full Court and the CWP No.16194 of 1990 (O&M) -3- provisions under Section 12(4) were also misapplied to a situation that did not warrant the same. I also have no doubt in my mind that there was a clear misreading of the judgment of Full Court in Jaswant Kaur's case (supra). The Full Court was holding that a decree obtained after the appointed day cannot be taken into account in determining the surplus area of a person and the rights of parties to the decision remained unaffected inter se. The latter part of this observation was not noticed properly by the authorities. In a case where a person was asserting a right for the first time through a decree then, it could be stated that a decree will not affect the rights in determining the surplus. This provision will not be attracted where a right which third party claims, was not merely under the decree but existed independently of the same through a pre-existing right and the Civil court decree was only an affirmation of the right through an imprimatur of the Court. In this case, Phool Kaur died on 06.09.1973 and on that day immediately, the property had devolved by inheritance not merely on the petitioner but also on the sister as per Section 15 of the Hindu Succession Act. There could not have been an oral Will in the manner which is claimed by the petitioner on the basis of which a mutation had also been sanctioned. Oral Will is unknown to law for Hindu in terms of the Indian Succession Act, 1925. 6. Section 12(4) of the Ceiling Act itself will be attracted only in cases where a Civil court grants a right to a party who obtains the right subsequent to the notified date. It will not apply in a case where the decree recognizes a pre-existing right in a party and in this case if the property had devolved not merely in the petitioner himself and his son and it was also inherited by his sister, the extent to which the sister became a holder of the property ought to have been excluded. If only the share of the petitioner from the property of CWP No.16194 of 1990 (O&M) -4- her sister on succession would have meant a difference to attract the provisions of the Act, there could have been any scope for applying the provisions of the Act and declare any portion of property as surplus. The treatment afforded to the entire petitioner's holding of the property left behind by Phool Kaur to constitute the holding in the hands of the petitioner and his son was clearly untenable and unjustified. 7. The impugned orders are set aside and the writ petition is allowed. The respondents, however, shall be at liberty to take any action under the Act if the, property inherited by the petitioner from his sister after deducting Daya Kaur's share as on intestatacy would render the holding to come within the purview of the Act. MAY 24, 2011 ( K. KANNAN ) Rajan JUDGE