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2008 DIGILAW 548 (PNJ)

Mihan v. Inder

2008-02-27

JASBIR SINGH, M.M.KUMAR, RAJESH BINDAL, RAJIVE BHALLA, VIJENDER JAIN

body2008
Judgment M.M.KUMAR, J. 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 Those appeals were eventually withdrawn but the reference has been read in the instant appeals.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 to 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. 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 coparcenary 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. 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 Singhs 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. 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 Singhs 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 Singhs case (supra), and in a still earlier Full Bench in Amar Singh v. Sewa Ram AIR 1960 Punjab 530. 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. 4 Mr. M. L. Sarin and Mr. S. D. Sharma, learned senior counsel, Mr. Hawa Singh Hooda and Mr. H. S. Mattewal, learned Advocate Generals, Haryana and Punjab respectively, and Mr. P. N. Aggarwal, have argued that Hindu Law flows from numerous sources which include Samritis and Dharamshashtras, legislation, custom or usage and even judicial precedents. According to the learned counsel where parties are Hindu, they are governed by Hindu Law or by the Customary Law, provided the custom is proved in accordance with law by its propounders. They have further maintained that Hindu Law has also been affected by codification and to that extent it stands modified by such legislation. According to the learned counsel where parties are Hindu, they are governed by Hindu Law or by the Customary Law, provided the custom is proved in accordance with law by its propounders. They have further maintained that Hindu Law has also been affected by codification and to that extent it stands modified by such legislation. The argument appears to be that Hindu Law still continues to apply except in area where the field is occupied by legislation or such Hindu Law has been modified by custom. It is conceded that the Succession Act is to have overriding effect as provided by Section 4 thereof and any text, rule of interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act should cease to have effect with respect to any matter for which provision is made in that Act. According to learned counsel, Section 4 of the Succession Act has been replicated in all other Hindu Codes codified around those years and in that regard reference has been made to Section 4 of the Hindu Adoptions and Maintenance Act, 1956, Hindu Marriage Act, 1955 as also to Section 5 of Hindu Minorities and Guardianship Act, 1956. Learned counsel have referred and read various paras from the Full Bench of Pritam Singhs case (supra) to substantiate the aforementioned proposition. 5. They have further pointed out that the Succession Act mainly deals with intestate succession amongst Hindu although Section 30 of the Succession Act also provides for testate succession. It has been submitted that the Succession Act does not deal with alienation and, therefore, Hindu Law and Customary Law concerning alianation continue to survive. They have further pointed out that the Succession Act does not abolish reversioner and they continue with their right to challenge any alienation made in respect of property of joint Hindu family. According to the learned counsel the judgment of the Full Bench in Joginder Singhs case (supra) deals with alienation and it has approved the observation made by earlier Division Bench in that regard in the case of Kaur Singh (supra). Mr. According to the learned counsel the judgment of the Full Bench in Joginder Singhs case (supra) deals with alienation and it has approved the observation made by earlier Division Bench in that regard in the case of Kaur Singh (supra). Mr. Sarin has also highlighted that the judgment rendered by the Division Bench in Kaur Singhs case (supra) has also been accepted by Hon ble the Supreme Court in the case of Darshan Singh v. Ram Pal Singh, 1992 Suppl (1) SCC 191 : (AIR 1991 SC 1654). According to the learned counsel in Darshan Singh case (supra) the Supreme Court dealt with Section 5 of the Punjab Laws Act, 1872, the Punjab Limitation (Custom) Act, 1920, and the Punjab Custom (Power to Contest) Act, 1920 and has concluded that Section 7 of the Punjab Custom (Power to Contest) Amendment Act, 1973, put a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on the ground that such alienation or appointment was contrary to custom. It has further been held that the language used in the provision is inconsistent with the continued existence of the custom. According to the learned counsel the Supreme Court has taken the use of words "no person shall contest any alienation on the ground that such alienation is contrary to custom". According to Mr. Sarin, the custom has been totally erased and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on the ground of being contrary to custom. The provision has been held applicable to all the pending actions whether at the stage of trial or at the stage of appellate Court on the rationale that the appeal is continuation of the suit. It has, however, been clarified that the Succession Act has not abrogated any rule or Customary Law in Punjab relating to restriction on alienation by a male proprietor over and above what has been done in Hindu Law. The right of reversioners besides those who could do in Hindu Law to challenge and contest any such alienation continued to exist and it was in these circumstances that it was felt necessary to abolish the right to contest such an alienation and the Act of 1973 has been rightly adopted. 6. Mr. The right of reversioners besides those who could do in Hindu Law to challenge and contest any such alienation continued to exist and it was in these circumstances that it was felt necessary to abolish the right to contest such an alienation and the Act of 1973 has been rightly adopted. 6. Mr. Hawa Singh Hooda, learned Advocate General, Haryana, however, has pointed out that no steps have been taken in Haryana to abolish the Punjab Custom (Power to Contest) Act, 1920 or the Punjab Limitation (Custom) Act, 1920, as has been done by the State of Punjab. According to learned Advocate General, in the State of Haryana the situation would continue to be the same and alienation of coparcenary property or Hindu undivided family property could still be challenged by proving custom as per the provisions of both the Acts of 1920. According to learned Advocate General, in Haryana, Hindu Law would continue to govern the rights of the parties who are Hindu except the area occupied by codified law and legislation and custom. Learned Advocate General has maintained that the judgment of Hon ble the Supreme Court in the case of Darshan Singh (supra) would not have any application in the State of Haryana. 7. All the learned counsel, however, have voiced one argument that there is no conflict in both the Full Benches as both of them operate in different fields. Mr. S.D. Sharma has emphasised that the Full Bench in Pritam Singhs case (supra) lays down that after the enactment of the Succession Act no Hindu is governed by rules of Customary Laws in matters of succession to property, as has been provided by Sections 2 and 4. According to the learned counsel, all Hindus who were previously governed by rules of Customary Law in matters of succession like other Hindu are to form joint and undivided Hindu family and the sons, grandsons and great grandsons of the holder of joint property would acquire interest therein by birth. Accordingly, all rules of succession applicable till June 17, 1956, when the Succession Act came into force, by virtue of any text or rule of Hindu stood abrogated in respect of all matters dealt with in the Succession Act. Accordingly, all rules of succession applicable till June 17, 1956, when the Succession Act came into force, by virtue of any text or rule of Hindu stood abrogated in respect of all matters dealt with in the Succession Act. The Succession Act also superseded any other law contained in any Central or State legislation in force immediately before it came into force insofar as such legislation is inconsistent with the provisions contained in the Succession Act. Mr. Sharma then referred to the ratio of the judgment in Joginder Singhs case (supra), which deals with constitutional validity of Section 14 and according to the Full Bench Section 14, which enlarged the estate of widow does not suffer from the vice of discrimination on the ground of sex and is not violative of Article 14 of the Constitution. According to the learned counsel, the judgment does not deal with the principles of succession. It has been maintained that the ratio decidendi of the judgment is that the Succession Act did not abolish revisioners, which is a body of persons who are likely to inherit the property held by a particular person whether male or female. According to custom only collateral (reversioners) within 5 degrees have been held entitled to challenge or control alienation of a male proprietor and there is nothing in the Succession Act from which it could be inferred that their power to control alienation has ceased to exist. Although the reversioners are not now entitled to challenge any alienation made by a female, which is because the estate held by a female gets enlarged into a absolute estate after the Succession Act came into force. Hence, the power of alienation of a female cannot be controlled. It has been pointed out that the position of female has further been bettered by recognizing her as a coparcener by virtue of recent amendment made in Section 6 of the Succession Act. Therefore, it has been urged that both the Full Benches operate in different areas. The Full Bench in Pritam Singhs case (supra) deals with succession, whereas the Full Bench in Joginder Singhs case (supra) deals with alienation. 8. Therefore, it has been urged that both the Full Benches operate in different areas. The Full Bench in Pritam Singhs case (supra) deals with succession, whereas the Full Bench in Joginder Singhs case (supra) deals with alienation. 8. In the light of the two Full Bench judgments, two main issues that have been raised before us are as under :- 1) Whether there is any real conflict between the two judgments of this Court rendered in the cases of Joginder Singh (supra) and Pritam Singh (supra)? 2) Whether the property in the hands of a successor be treated as coparcenary property and its alienation is to be governed by Hindu Law or the property in the hands of a successor is only an ancestral property as known to the Customary Law and its alienation, therefore, is not open to challenge? 9. From the aforementioned two orders, which have led to the constitution of Five-Judge Bench, it has emerged that it is first necessary to understand the import of the proposition (s) laid down in the earlier two three-Judge Benches in Joginder Singhs case (supra) and Pritam Singhs case (supra). 10. The aforementioned exercise is required to be undertaken for the reason that it is only ratio decidendi of a judgment which is of binding character and not the obiter dictum. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. Hon ble the Supreme Court in the case of Director of Settlements, A.P. v. M. R. Apparao, (2002) 4 SCC 638 : (AIR 2002 SC 1598), has observed that a judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such a obiter would not be a binding precedent. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such a obiter would not be a binding precedent. Similar observations have been made by Hon ble the Supreme Court in the cases of Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 : AIR 1989 SC 38 and Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573 : (AIR 2001 SC 3404). In another recent Judgment in the case of State of Haryana v. Ranbir, (2006) 5 SCC 167 : (AIR 2006 SC 1796), Hon ble the Supreme Court in para 12 has observed as under :- ".....A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 : AIR 1976 SC 1207. It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197 : (AIR 2003 SC 4172). In the light of the aforementioned statement of law, we would now proceed to examine the two 3-Judge Benches in Joginder Singhs case (supra) and Pritam Singhs case (supra). 11. In Joginder Singhs case (supra), the basic controversy was regarding constitutional validity of Section 14 of the Hindu Succession Act, 1956 (for brevity, the Succession Act) and as to whether it infringes Article 14 of the Constitution. The aforementioned attack was repelled by the Full Bench. The validity of gift deed made by the male proprietor was the subject-matter of challenge at the instance of reversioner by filing a declaratory suit, which eventually led to the filing of an appeal before this Court. The reversioner had alleged in the plaint that the land was ancestral and the parties were governed by custom, whereas in connected appeals, the sale deeds made by the male proprietor were subject-matter of challenge. The reversioner had alleged in the plaint that the land was ancestral and the parties were governed by custom, whereas in connected appeals, the sale deeds made by the male proprietor were subject-matter of challenge. On finding of fact, the Courts have found that the land was ancestral and the sale made by the male proprietor was without any legal necessity. However, the defence taken by the male proprietor in both the cases was that on account of the provisions of the Succession Act, limitation on the power of alienation of a male proprietor had ceased to exist and the reversioners were debarred from challenging such alienation. The trial Court had dismissed both the suits. On appeal, the view taken by the trial Court was reversed holding that there was nothing in the Succession Act, which in any way has enlarged the right of a male proprietor the way it has enlarged the rights of a female by virtue of Section 14 of the Succession Act, who has become absolute owner. Accordingly, it was held that the estate held by the male proprietor and the limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. Following the decision of a Division Bench of this Court in the case of Kaur Singh Gajjan Singh v. Jaggar Singh Kehar Singh, AIR 1961 Punjab 489, learned single Judge upheld the view taken by the lower Appellate Court, reiterating that there was no provision in the Succession Act enlarging the estate of a male holder and the limitation on his power of disposal of ancestral property continued as such. It was noticed that there might be anomaly, inasmuch as, the power of a female inheritor from such a male should be absolute whereas the power of a male proprietor to alienate the property should be limited. The matter was taken before the Letters Patent Bench to challenge the anomalous situation by urging that such an interpretation was to result in infringement of equality clause made in Article 14 of the Constitution. Accordingly, it was urged that the Division Bench judgment in Kaur Singhs case (supra) required reconsideration. The matter was taken before the Letters Patent Bench to challenge the anomalous situation by urging that such an interpretation was to result in infringement of equality clause made in Article 14 of the Constitution. Accordingly, it was urged that the Division Bench judgment in Kaur Singhs case (supra) required reconsideration. After noticing the provisions of the Punjab Limitation (Custom) Act (No. 1 of 1920) and the Punjab Custom (Power to Contest) Act (No. 2 of 1920), the Full Bench observed that the power of male holder to alienate the property was limited only if there were reversioners in existence in respect of whom the property held by the male holder could be treated as ancestral, which was further controlled by the aforementioned two statutes. If a person had no reversioner living within five degrees then his power of alienation qua the ancestral property was co-extensive with that of his self-acquired property. 12. The Full Bench then referred to the provisions of the Succession Act and observed that it has brought uniform code of succession amongst Hindus irrespective of the fact whether they were previously governed by Hindu Law or Customary Law and to that extent both Hindu Law and Customary Law stood modified or repealed, as has been declared by Section 4 of the Succession Act. It noticed Section 14 of the Succession Act, which enlarged the estate of a female in the property acquired by her or inherited by her either from a male or female proprietor. Accordingly, the Full Bench held that Section 14 of the Succession Act postulates that the estate held by a Hindu female before enforcement of the Succession Act either by inheritance or otherwise, was enlarged and on the date of enforcement of the Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Succession Act, she is to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on the power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Succession Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in the ancestral property or enlarging their power of alienation over the property inherited by them. This was the necessary result of the provisions made in Section 14 of the Succession Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in the ancestral property or enlarging their power of alienation over the property inherited by them. However, it noticed Section 30 of the Succession Act and observed that it only deals with the power of his share in the coparcenary property by Will, which prior to enforcement of the Succession Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. Insofar as, the persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Succession Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 of the Succession Act and upheld the provision as intra-vires. The argument that the reversioners have ceased to exist after the enactment of provisions of Section 14 of the Succession Act, was rejected as there was no provision pointed out to that effect. The argument was rejected by referring to the Full Bench judgment of this Court in the case of Amar Singh v. Sewa Ram, AIR 1960 Punjab 530 (FB) and the following para with approval was quoted by the Full Bench :- "There is nothing in the Hindu Succession Act that has directly or indirectly taken away the rights of reversioners as such. The Act in no way abolishes either reversioners or their rights or status. Where there is a restriction and control over the alienation of property, there the position of law before and after the Act continues to be the same and the next reversioner is entitled in law to the protection of his reversion." 13. It, further held that no suit by a collateral would be competent for declaration that a gift made by a widow after coming into force of the Succession Act in favour of his husbands daughter is invalid because the collateral had no chance of acquisition whether the property is ancestral or self- acquired. It, further held that no suit by a collateral would be competent for declaration that a gift made by a widow after coming into force of the Succession Act in favour of his husbands daughter is invalid because the collateral had no chance of acquisition whether the property is ancestral or self- acquired. However, it did not mean that collateral for all other purposes had ceased to exist or that they did not have right to challenge an alienation, which right they enjoyed under the Customary Law. The Full Bench further held that by virtue of Section 4 of the Succession Act, the rules of succession as provided in the Succession Act have to take precedent over all other rules or laws governing succession and that the Succession Act supersede custom only to the extent to which provisions have been made in Section 4 of the Succession Act. 14. The Full Bench also repelled the contention that the custom controlling the power of male proprietors to alienate the ancestral property be declared as unreasonable and the Courts should refuse to enforce the same. The Full Bench referred to the requirement of a valid custom as given in paragraph 1 of Rattigans Digest of Customary Law and observed as under :- "Admittedly, the rule of control over alienation has been recognized and enforced by the Courts since the earliest times and has not been held to be contrary to justice, equity and good conscience. The main argument of the learned counsel was that this rule, as a result of the changed circumstances, has become archaic and should be treated as contrary to justice, equity and good conscience. Now, as is mentioned in cl. (d) above, a custom to be valid must be ancient, certain and invariable and, therefore, this rule cannot be held to be invalid simply because it is an old one or archaic. Moreover the rule cannot be held to be contrary to justice, equity and good conscience simply because in view of the Hindu Succession Act larger powers have been conferred on the females than over the males. This distinction is certainly not immoval and cannot be said to be opposed to public policy." 15. The various propositions laid down by the Full Bench in Joginder Singhs case (supra) may be summed up as under : Position prior to the commencement of Hindu Succession Act. This distinction is certainly not immoval and cannot be said to be opposed to public policy." 15. The various propositions laid down by the Full Bench in Joginder Singhs case (supra) may be summed up as under : Position prior to the commencement of Hindu Succession Act. 1956, (a) In State of Punjab the right to succession and power of alienation are governed by personal law i.e. in case of Hindu by the Hindu Law of Mitakashara School except to the extent to which it is modified by custom; (b) According to Customary Law as well as Hindu Law, a female inheriting any property has only, what is known as widows estate, and her rights of alienation are limited and she can alienate only for consideration and legal necessity, and it makes no difference whether the property inherited by her was the self-acquired property of the last male holder or was inherited by him from his ancestor; (c) In case of male inheriting any property, there were similar limitations so far as ancestral property was concerned, provided there were any reversioners living within five degrees who could challenge unwarranted alienation within the period prescribed under the Punjab Limitation (Custom) Act, 1920 and the Punjab Custom (Power to contest) Act, 1920; (d) If there are no reversioners within five degrees, the power of alienation even qua ancestral property was co-extensive with that over self-acquired property; (e) The power of a person governed by Hindu Law was also restricted qua ancestral property, or what is termed as coparcenary property. Position after the commencement of the Succession Act - Propositions laid down in Joginder Singhs case, (a) The Succession Act has brought about a uniform code of succession amongst Hindu irrespective of the fact whether they were previously governed by Hindu Law or custom, and to that extent both Hindu Law and Customary Law stood modified or repealed by virtue of the overriding effect of Section 4 of the Succession Act. (b) The estate held by a male proprietor and the limitation on his power of alienation were in no way removed by the Succession Act and the reversioners were not debarred from challenging such alienation. (b) The estate held by a male proprietor and the limitation on his power of alienation were in no way removed by the Succession Act and the reversioners were not debarred from challenging such alienation. The Full Bench has followed and approved the Division Bench judgment of this Court in Kaur Singhs case (supra), which in turn has been approved by the Hon ble Supreme Court in Darshan Singhs case (supra), it is further pertinent to notice that the Hon ble Supreme Court in Darshan Singhs case has overruled the contrary view taken in Bara Singh v. Kashmira Singh, JT (1987) 2 SCC 234. (c) The power of the male holder to alienate the property is limited only if there were reversioners in existence in respect of whom the property held by the male holder could be treated as ancestral, which were further restricted by five degrees by virtue of Punjab Limitation (Custom) Act, 1920 and the Punjab Custom (Power to Contest Act, 1920. In other words if a male holder had no reversioner living within five degrees then his power of alienation qua ancestral property was co-extensive with that of his self-acquired property. The Full Bench further laid down the enlargement of female interests in property - instant conversion of limited estate into absolute ownership under Section 14 of the Succession Act with a consequence of removal of restrictions on her power of alienation but only in relation to property possessed by her at the time of commencement of the Succession Act. It further held that there was no corresponding provision in respect of male proprietors enlarging their estate in respect of the ancestral property or enlarging their power of alienation over the property inherited by them except to the extent provided by Section 30 of the Succession Act. According to Section 30, a male proprietor enjoys the power to deal with the coparcenary property by Will, which prior to the enforcement of the Succession Act he had no right to do. (d) The provisions of Section 14 of the Succession Act was held to be intra-vires and the argument to the contrary that it violated Article 14 of the Constitution was repelled. (e) The Full Bench repelled the contention that custom controlling the power of male proprietors to alienate the ancestral property be declared as unreasonable arid the Courts should refuse to enforce the same. 16. (e) The Full Bench repelled the contention that custom controlling the power of male proprietors to alienate the ancestral property be declared as unreasonable arid the Courts should refuse to enforce the same. 16. This judgment, as if anticipation of the problem faced by the Full Bench in Pritam Singhs case rightly holds that the concept of "ancestral property" under customary law is similar to the concept of "coparcenary property" under Hindu Law in the matters of exercise of power of alienation. "In para 12 of the judgment it has been held as under :- "...........The limitation on the powers of a Hindu coparcener to alienate such property during his lifetime continue and in this respect a person governed by Hindu Law and a person governed by custom are at par. Thus so far as the right to alienation inter vivos are concerned, Hindu males even under the Hindu Succession Act do not enjoy any better rights than those who are governed by custom and thus there is no question of any discrimination..............." 17. If the nature and extent of restrictions on the power of alienation are the same or similar both under Customary Law and Hindu Law, and the concepts of ancestral property and coparcenary property are also the same under both the systems, then there hardly remains any conflict envisaged under the present reference. The Judgment of Full Bench in Pritam Singhs case 18. The other Full Bench judgment in the case of Pritam Singh (supra) was the result of a nagging doubt about an earlier Division Bench view taken in the case of Controller of Estate Duty, Punjab v. Harbans Singh, (1975) 98 ITR 331 (Punj).