(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 Those appeals were eventually withdrawn but the reference has been read in the instant appeals.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 :-
(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 singh's 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 :-