IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2199 of 1986 (O&M) Date of decision:05.12.2011 Shakuntla Devi adopted daughter of Shrimati Sara Devi widow of Deva Singh, resident of Village Moana, Tehsil Safidon, District Jind. ...Petitioner versus Secretary to Government, Haryana, Revenue Department, Chandigarh, and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Harbhagwan Singh, Senior Advocate, with Mr. Rajesh Gupta, Advocate, for the petitioners. Ms. Kirti Singh, DAG, Haryana. ---- 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 petition challenges the order of the Prescribed Authority issued on 25.05.1979 declaring the properties in the hands of Sara Devi wife of Deva Singh as being attracted to the provisions of the Haryana Ceiling on Land Holdings Act of 1972. The landowner had herself made a declaration form on 13.08.1976 and it was assessed that an extent of 78 kanals-4 marlas were to be treated Civil Writ Petition No.2199 of 1986 (O&M) - 2 - as surplus. Before the Prescribed Authority, the landowner Sara Devi wanted to contend that half share of the property had belonged to his adopted daughter Shakuntla Devi and relied on a decree said to have been passed. The Prescribed Authority rejected this contention and it is this order that is in challenge before this Court. 2. The writ petition is filed by Shakuntla Devi claiming herself to be an owner of half share in the property by virtue of a Civil Court decree and contending that the adjudication made without involving the petitioner in the proceedings was void and non est and could not bind her. The learned senior counsel appearing on behalf of the petitioner relies on several decisions of this Court and of the Hon'ble Supreme Court to contend that any adjudication made without notice to the party who is likely to be affected, will be bad in law. The counsel, therefore, sought for remand of the matter before the competent authority for an adjudication regarding her entitlement. The petitioner has had the proceedings stayed and before the arguments got under way, I requested the learned senior counsel to show to me prima facie case of her entitlement before the case could be remanded to the authority for a fresh adjudication. The learned counsel contends that the decree itself provides for a half share and the moment the authority was informed of the decree, he ought to have served a notice on the petitioner before undertaking adjudication. Civil Writ Petition No.2199 of 1986 (O&M) - 3 - 3. The land reform legislation has an important social objective to fulfill. The Directive Principles of State policy recognize that there has been an economic concentration of wealth and the State policies must be so taken to allow for equitable redistribution of such wealth. The right to property itself is no longer a fundamental right and all that is necessary is that before a person is deprived of the property, there should be a law which would allow for such deprivation. The land ceiling laws are one such class of legislation that provide for delimiting the extent of holding of the landowner and vesting the extent held in excess with the State to allow for a pool of surplus for redistribution to bring about social and economic equality. The interpretation of these legislations shall, therefore, be to serve the constitutional goals and cannot be merely mechanical. I state this in the context of powerful pleas made by the learned senior counsel that the preponderance of authorities of this Court have been that a transferee shall be served with notices, no matter that the transferee may not have a valid defence. I would take this to be a rather strange argument, for, a remand is never a matter of luxury for a party to demand and secure. On the other hand, the remand shall be to render an adjudication on what is absolutely essential and what cannot be dealt with by this Court itself. 4. Having regard to the fact the proceedings before the Court are amongst the oldest on the file and the order impugned was Civil Writ Petition No.2199 of 1986 (O&M) - 4 - an order passed on 25.05.1979, I requested the learned counsel to submit the mode of entitlement of the petitioner in relation to the property that stood admittedly in the name of Sara Devi. The counsel is unable to show to me any document apart from the decree and would state that if opportunity is given by a remand, the petitioner will be in a position to produce such proof. I am afraid, I cannot afford to the petitioner such a luxury for no law in India allows for a pre-existing right to a daughter in the property of the mother during her life time. If there was a decree which allowed for not even the natural daughter, but a person claiming to be an adopted daughter that she was entitled to half share, it is patently collusive. A person that challenges a civil court adjudication will be always competent to show that there was no tangible interest that he or she had in the property. Sections 40 to 44 of the Indian Evidence Act deal with the relevance of the judgments of Courts. While judgments rendered in probate, matrimonial, insolvency and admiralty jurisdiction will be judgments in rem, every other judgment is a judgment in personam and could only bind the parties. While it could have been possible for a person who had secured a decree against another to contend that it had become final between them, the same judgment or decree if used in any judicial or quasi judicial proceedings and the genuineness of the decree is doubted, it shall be necessary for the person to prove the validity of such decree. It will be wrong to assume that every decree is enforceable Civil Writ Petition No.2199 of 1986 (O&M) - 5 - even against the persons, who are not parties. If the daughter or her mother was contending that a particular civil court decree granting a half share to a person claiming to be an adopted daughter would be binding on the State and that therefore, it was bound to exclude the said extent, the State was entitled to insist that it was collusive on the face of it, there being nothing to show that law allowed for such acquisition of right. In this case, the suit has been filed and decree obtained subsequent to the appointed date of the Haryana Ceiling on Land Holdings Act of 1972. The decree purported to recognize an adopted daughter's half share in the property. Even now the petitioner is not able to show as to how she obtained the right in the property but for the decree. Normally, no transfer takes place through a decree and a declaratory decree merely recognizes what parties agreed between themselves or how such right was assessed by the Court. In this case, the Court did not render its decision on a contest but merely passed a decree on consent. The landowner may have willingly suffered a claim to a half share to belong to the petitioner, but there is no reason why the State shall allow itself to be a party to such duplicity. The several decisions which the learned senior counsel relies on, in my humble view, will not at all apply to the facts of this case. 5. The judgment of this Court in Dharam Singh and another Versus State of Haryana and others in CWP No.5935 of 1985, decided on April 1, 1986 dealt with the case of a decree Civil Writ Petition No.2199 of 1986 (O&M) - 6 - obtained in the year 1959 allowing for certain rights to sons and widow and the holding was assessed in the hands of the father without reference to the sons and widow. The Court held that the action taken without notice to the affected parties would be bad. There was an important additional feature obtaining in that case, namely, of the property not having been utilized by the State and the death of the landowner resulting in the devolution of his interest to owners that required a redetermination. A special circumstance that existed at that time of a remand does not exist in this case. The decision in Lal Singh and another Versus State of Punjab and others-1972 PLJ 730 dealt with an issue of notice to a purchaser and the declaration made without notice to such transferee. Yet another decision is Amar Singh Versus State of Punjab and others- 1986 PLJ 159 that examines the similar situation of entitlement of transferees by sale to prior notice. The State of Haryana and others Versus Hari Singh and others-1973 PLJ 811 also holds that there is a bounden duty of the Courts not to decide case which affect the persons in relation to the properties when notice is not issued to them. 6. The requirement of notices to transferees follows a well entrenched legal principle to protect transferees, who have parted with consideration and who in fresh proceedings after notice, could contend for a position that the properties dealt with through transferees must be kept at least within the landlords' permissible Civil Writ Petition No.2199 of 1986 (O&M) - 7 - area and to stave off the vesting in relation to such properties without still causing prejudice to State interest in obtaining some other property equal in extent to be declared as surplus. The judicial intervention in favour of the transferees have always been to ensure that an unwary transferee who has parted with consideration, does not come by harm by clever machinations of a wily landowner to obtain double benefit of securing a sale price by transferring a property and obtaining also the benefit of treating that property as having been rendered surplus and collecting the compensation for declaration of such surplus. A gratuitous transferee or a person, who is a mere name lender cannot obtain a similar treatment. The learned senior counsel makes reliance on the issue of 5-members Bench of this Court in State of Haryana and others Versus Vinod Kumar and others- 1986 PLJ 161 as going to support his case. The 5-member Bench was dealing with the issue of a declaration sought at the instance of a person, who had not been served with any notice and who had sought for a declaration that the property treating as surplus against the father was void, inoperative and for a permanent injunction. The maintainability of such suit in the teeth of the finality of adjudication before the authorities was the point in issue. The Full Bench authoritatively pronounced that a person, who was not a party to the proceedings, will not be normally bound and a suit itself cannot be barred. I am not examining the situation of an adjudication which became final by a person being not allowed to Civil Writ Petition No.2199 of 1986 (O&M) - 8 - participate in the proceedings. 7. An important fact has to be borne in mind is that the writ petition is not at the instance of a landowner against whom the surplus was declared. The writ petition is at the instance of a person, who claims that an interest in the property has not been adjudicated at the time when the property was declared as surplus. I was prepared to give that particular opportunity of which the petitioner claimed that she had been denied. The petitioner would want nothing of it. On the other hand, she would be interested in further prolonging the matter to take this to be an occasion to secure a permission and engage the State in a further long litigation. The petitioner has obtained a benefit of 25 years of pendency before this Court to no useful purpose to the State. If the petitioner cannot show before me a semblance of right as to how she is making an assertion, I find even the prayer for a remand to be not bona fide. There is hardly any right to be adjudicated. A decree can be shown to be collusive even in collateral proceedings. Section 44 of the Indian Evidence Act allows any party to a proceeding to show that any judgment which was delivered by a Court, was obtained by collusion. This is precisely what the State did when it proceeded to ignore the decree and took the property as falling in the surplus in the hands of the landowner. In this case, the petitioner is before me and she cannot make out a case that how she is entitled to the property, otherwise than by saying that there is a decree in her Civil Writ Petition No.2199 of 1986 (O&M) - 9 - favour. The decree is patently collusive and correctly held to be so although in the absence of the petitioner before the authority. 8. I affirm the decision already taken and dismiss the writ petition with cost assessed at Rs.10,000/- against the petitioner in favour of the State. (K. KANNAN) JUDGE 05.12.2011 sanjeev