Ancestral property--In Punjab the property in the hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 3 and 30 of the Succession Act.
Ancestral property--In Haryana, the property in the hands of a successor may be held to be coparcenary property as well as ancestral property as known to Customary Law--The parties can fall back upon Hindu Law in case they fail to establish that the rule of decision is custom--Therefore, in Haryana both under Hindu Law and the Customary Law, the alienation would be open to challenge.

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 Those appeals were eventually withdrawn but the reference has been read in the instant appeals.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