Supreme Court of India
DARSHAN SINGH AND ANR. ETC. ETC.versusRAM PAL SINGH AND ANR. ETC. ETC.
- Citation
- 1990 INSC 361
- Decided
- 20 November 1990
- Disposal
- Dismissed
- Bench
- T K THOMMEN
Holding
Section 7 of the Punjab Custom (Power to Contest) Act, as amended by the 1973 Amendment Act, is retrospective and applies to pending proceedings, thereby prohibiting any contest of alienation even in appeals.
Summary
The appellants were contesting alienations of immovable property under the Punjab Custom (Power to Contest) Act, 1920, and their suits were at the appellate stage when the Punjab Custom (Power to Contest) Amendment Act, 1973 came into force on 23 January 1973. The High Court dismissed the appeals, holding that after the amendment no contest was permissible. The Supreme Court examined whether the amendment was retrospective and applicable to pending proceedings, considering the objects of the amendment, the language of Sections 1(2), 2 and 3, and the effect of Section 7 which bars any contest of alienation. Relying on principles of statutory interpretation, the doctrine that a statute does not affect vested rights unless expressly stated, and the legislative intent to abolish the custom of contesting alienations, the Court held that the amendment was indeed retrospective and applied to pending suits and appeals. Consequently, the appeals were dismissed, but the Court directed the High Court to re‑examine the matters under Hindu law where applicable.
Issues considered
- The Punjab Custom (Power to Contest) Amendment Act, 1973, is it retrospective?
- Does the amendment apply to pending proceedings and appeals?
- Does Section 7 of the amended Act bar the right to contest alienations in appeals?
- Is the custom of contesting alienations extinguished by the amendment?
Legislation cited
- Hindu Succession Act, 1956s. 4
- Limitation Act, 1908
- Punjab Custom (Power to Contest) Act, 1920s. 4, s. 6, s. 7
- Punjab Custom (Power to Contest) Amendment Act, 1973s. 1, s. 2, s. 3
- Punjab Laws Act, 1872s. 5
- Punjab Limitation (Custom) Act, 1920
- Punjab Pre-emption Act, 1913
- Punjab Pre-emption (Repeal) Act, 1973
Subjects
customary lawretrospective legislationcontest of alienationappeal as continuation of suitstatutory interpretationvested rightsPunjab lawHindu Succession Actsection 7 amendmentlegislative intent
Judgment
DARSHAN SINGH AND ANR. ETC. ETC.
A
V.
RAM PAL SINGH AND ANR. ETC. ETC.
NOVEMBER 20, 1990
[T.K. THOMMEN, K.N. SAIKIA AND N.M. KASLIWAL, J.J.]
B
Punjab Custom (Power to Contest) Act, 1920: Section 7-
Alienations of immovable property-Contesting of~Effect of Punjab
Custom (Power to Contest) Amendment Act, 1973-Whether retrospec-
tive and applicable to pending proceedings.
Punjab Laws Act 1872, Section 5.
C Punjab Pre-emption Act, 1913-Effect of Punjab Pre-emption
(Repeal) Act, 1973-What is.
Punjab Limitation (Custom) Act 1920.
Hindu Succession Act 1956, Section 4.
D Jurisprudence-Custom and law-Relationship-What is.
Statutory Interpretation.
Retrospectivity of statute-What is.
Practice and Procedure.
Appeal-Whether a continuation of a suit-Change in /aw-
E Effect on pending proceedings.
Words and Phrases-'Contest'-Meaning of.
The appellants in the appeals were contesting alienations under
the provisions of the Punjab Custom (Power to Contest) Act, 1920 and
their suits were at the appellate stage in the High Court when the
F Punjab Custom (Power to Contest) Amendment Act, 1973 came into
force on the 23rd day ofJanuary, 1973.
The High Court dismissed the appeals taking the view that no
contest to alienations was permissible after the 1973 Amendment Act
came into force.
G In Ujaggar Singh v. Dharam Singh & Ors., a Division Bench of
this Court while dismis.<ing the appeal on 28.11.1986, b.eld that Section 7
of the Punjab Custom (Power to Contest) Act as amended in 1973 has
retrospective effect and that it also applies to pending proceedings.
Jn another Civil Appeal viz. Udam Singh & Ors. v. Tarsem Singh &
Ors. another Division Bench rejected the conlP:nlion that the Amendment Act
H
did not apply to pending p~ and di"'1issed the appeal on 15.7 .1987.
212
DARSHAN SINGH v. R.P. SINGH 213
However, in Bara Singh v. Kashmira Singh & Ors., a Division A
Bench while considering the same question as regards the applicability
of the Amending Act to pending proceedings, held on 4.1.1987, that the
view expressed in Ujaggar Singh v. Dharam Singh & Ors., appears to
run counter to the express provisions of sub-section (2) of Section 1 of
the Amendment Act which provides that the amendment shall be
8
deemed to have come into force only on January 3, 1973 and that it cannot
be disputed that Section 3 of the Amendment Act which makes Section 7
of the Act applicable to all immovable property affects the substantive
rights of the parties, and that the matter requires reconsideration and
that the matter be placed before a bench of three Judges by the Chief
Justice.
c
The m~in contentions of the appellants in the appeals were that
neither by express words nor by necessary implication the 1973 Amend-
ment Act can be said to be retrospective and applicable to pending
proceedings, and that more so in view of sub-section (2) of Section 1 of
the Amendment Act deeming it to have come into force on 23.1.1973,
D
and that the retention of the provisions of Section 4 of the Principal Act;
the vested rights to contest alienations could not be said.to have been
taken away by retrospective operation.
The respondents' contentions however were that in view of the
deletion of Section 6 and the amendment of Section 7 by the Amend-
ment Act 1973 so as to include both ancestral and non-ancestral inunov-
E
able properties, there could be no question of any contest after the
Amendment Act came into force, and this Court in Ujaggar Singh's case
having already held that the Amendment Act is retrospective and ap-
plicable to pending proceedings, the High Court has rightly dismissed
the appeals.
F
Dismissing the 11ppeals, this Court,
HELD: l(a) The Punjab Laws Act, 1872 was an Act for declaring
which of certain rules, laws and regulations would have the force of law
in the Punjab. [222H]
G
(b) A custom prevailed in Punjab that ancestral immovable pro-
perty is ordinarily inalienable (especially amongst 'Jats' residing in the
Central districts of the Punjab), except for necessity or with the consent
of male descendants, or, in the case of a sonless proprietor, of his male
I collaterals. [223G-H]
H
r
I'
214 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
(c) The degrees of collaterals eligible to contest an alienation on
A
the basis of the above custom being not limited by the custom itself,
there arose a need to .enact certain restrictions in respect of suits in
which the alienation of immovable property or the appointment of heir
was contested by descendants or collaterals on the ground that it was
contrary to custom. [2248]
B
(d) The object of Section 5 of the Punjab Laws Act, 1872 was to
settle for Punjab the rule of decision in question stated in clauses (a) and
(b) thereof. The Act settled this question laying down the first rule 'any
custom applicable to the parties concerned which was not contrary to
justice, equity and good conscience, and which had not been, by the Act
itself or by any other enactment, altered or abolished, and had not been
c declared to be void by any competent authority'. Clause (b) provided
that the principle of Mohammedan Law tn cases where the parties were
Mohammedan and the Hindu Law, in cases where the parties were
Hindus, should be the other rule of decision except tn so far as such law
has been altered or abolished by legislative enactment, or is opposed to
D the provisions of that Act, or has been modified by any such custom.
Thus the legislature intended that the Hindu and Mohammedan Law
should be applied where no such customary rule prevailed. [226G-22ID]
Vaishno Ditti's case 1929 Lah. (10) 86 (P.C.) at p. 103; Thakur
Gokulchand v. Parvin Kumari, AIR 1952 SC 231; [1952] SCR 825 and .,
E UjaggarSingh v. Mst. Jeo, AIR 1959 SC 1041, referred to.
2(a) Alongwith the repeal of the Punjab Pre-emption Act, 1913 it
was considered that the right to contest alienation of immovable pro:
perty whether ancestral or non-ancestral on the ground that it was
contrary to custom should be done away with. The Punjab Pre-emption
F (Repeal) Act, 1973 by Section 2 repealed the Punjab Pre-emption Act,
1913. [2268-D]
(b) The intention of the legislature is therefore clear, that in case
of the Pre-emption Act by repeal of the Act itself the legislature put an
end to that custom. [228F]
G
3. The right to contest an alienation to a limited extent was
conferred by Section 6 of the Punjab Custom (Power to Contest) Act,
1920. [224H]
4. Section 7 of the PriD.cipal Act puts a complete bar to contest of
! H any alienation of ancestral or non-ancestral immovable property or
DARSHAN SINGH v. R.P. SINGH 215
appointment of an heir to such property on the ground that such aliena- A
tion or appointment was contrary to custom. [227F]
The provisions of Section 7 that 'no person shall contest any alie-
nation of immovable property whether ancestral or non-ancestral or
any appointment of an heir to such property on the ground such aliena- B
tion or appointment is contrary to custom' undoubtedly puts an end to
contest of any alienation. This should normally leave no doubt that the
use of the above words and expression is inconsistent with the con-
tinued existence of the custom. [228H-229A]
5. Neque /eges neque senatus consu/ta ita serioi possunt utomnis
casus qui quandoque in sediriunt comprehendatur; sed sufficit ea quae C
plaeramque accidunt conteneri. Neither laws nor Acts of a Parliament
can be so written as to include all actual or possible cases; it is sufficient
if they provide for those things which frequently or ordinarily happen.
What is material is to see the expressed objects and reasons and the
language used. [230H-231B]
D
6. If the provisions of an Act of.Parliament are repugnant to the
continued existence of the custom, the custom will be treated as ab-
rogated and destroyed, although the Act does not actually extinguish
the custom by express words. Applying this principle and considering
the stated objects and reasons of the Amendment Act, namely, to do
away with the custom, and the negative provision of Section 7 of the
E
Amendment Act, the view is that continuance of the custom is inconsis-
tent with the statute. [231C-D]
Halsbury's Law of England, Vol. 12 Para 442 relied on.
F
r 7. Consuetudo semel reprobata non po test amplius induci. A
custom once disallowed cannot be again brought forward. [231E]
I 8. Section 4 of the Hindu Succession Act 1956 provides overrid-
! ing effect of the Act. 1n effect it lays down that in respect of the matters
dealt with by the Act it repeals all existing laws, whether in the form of G
enactments or otherwise, which are inconsistent with this Act. the result
is that immediately on coming into operation of the Act the law of
r succession hitherto applicale to the parties, by virtue of any text, rule or
I interpretation of Hindu Law or any custom or usage having the force of
I law ceased to have effect in respect of the matters expressly dealt with
by the Act. [232F-233D] H
r
/
.216 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R .
S.S. Munna Lal v. S.S. Rajkumar & Ors, AIR 1962 SC 1493:
A 1962 Supp. (3) SCR 418; Giasi Ram & Ors. v. Ramjilal & Ors., A1R
1969 SC 1144: [1969] l SCC 813; Punithavalli Amma/ v. Rama/ingam
(Minor) & Anr., A1R 1970 SC 1730: [1970] 3 SCR 894; Commissioner
of Wealth Tax, Kanpur & Ors. v. Chander Sen & Ors., AIR 1986 SC
1753: [1986] 3 SCC 567; Yudhishter v. Ashok Kumar, AIR 1987 SC
B SSS: [1987] 1 SCC 204; Smt. Manshan & Ors. v. Tej Ram & Ors.,
[1980] Supp. SCC 367; Taro v. Darshan Singh, AIR 1960 Punjab 145:
ILR 1959 Punjab 2253; Hansraj v. Dhanwant Singh, AIR 1961 Punjab
510: ILR (1961) 1Punjab369; Banso v. Cha.ran Singh, AIR 1961 Pun.lab
45; Kaur Singh v. Jaggar Singh, AIR 1961 Punjab 489 and Kalu v.
Nand Singh, AIR 1974 P & H SO, referred to.
C 9. Any rule of law of succession previously applicable to those
who were governed by custom would after the coming into force of the
Hindu Succession Act be permissible only in respect of the matters for
which no provision is made under the Act. However the Hindu Succes-
sion Act does not appear to have abrogated any rule or customary law
D in Punjab relating to restrictions on alienation by a male proprietor
over and above what could be done under Hindu law. The right of
reversioners, besides those who could do so under Hindu Law, to
challenge or contest any such alienation could not be said to have ceased
to exist. This being the position, it was still necessary to do away with
the right to contest such an alienation as the legislature desired. The
E Amendment Act was the measure adopted. [234A-C]
Bani Singh v. Gurpreet Singh, [1973] 75 PLR 797; Gurdia/ Singh
v. Piara Singh, [1973] 13 Cur. L.J. 529; Charan Singh v. Gehl Singh,
[1974] 76PLR12S;Jit Singh v. Kamai/ Singh, [1975] 77 PLR 488; Surjit
Kaur v. Zai/ Singh, [1977] 79 PLR 690; Raj Narain Pandey & Ors. v.
F Sant Prasad Tewari & Ors., [1973] 2 SCC 35 and Brownsea Haven
Properties v. Poole Corpn., [1958] Cb. 574 (CA): (1958) 1 All E.R. 205,
referred to.
lO(a) An appeal is a continuation of a suit and any change in law,
which has taken place between the date of the decree and the decision of
G the appeal, bas to be taken into consideration. When a snit filed by a
reversioner is dismissed and he files an appeal then before the appellate
court also he is contesting the alienation. 1f he does not contest or
challenge the alienation, then he cannot achieve success. [235B-C]
Thakur Gokulchand v. Parvin Kumari, (supra); Garikapatti Vee·
H raya v. N. Subbian Choudhury, [1957] SCR 488; Jose Da Costa v.
DARSHAN SINGH v. R.P. SINGH 217
Bascora Sadasiva Sinai Narcornim, [1976] 2 SCC 917; Govind Das v.
The Income Tax Officer, [1976] 1SCC907; Henshall v. Porter, [1923] 2 A
L.R. King's Bench Div. 193 and United Provinces v. Mst. Atiga Begum,
[1940] 2 FCR 110, referred to.
lO(h) Contest continnes right up to the final decision. The right to
contest cqmes to an end only when a final decision is given one way or B
the other putting an end to the litigation !Jetween the parties with
regard to the alienation. [235A-B]
11. Every statute wl)ich takes away or impairs vested rights
acquired under exiSting laws, or ,creates a new obligation; imposes a
new duty, or attaches a new disability in respect to transactions or
considerations already past. Retroaetive statute means a statute which c
creates a new obligation on transaction or considerations already past
or destroys or impairs vested rights. [2368]
Halsbury's Laws of Eiigland, 4th Edn. Vol. 44 para 921.
D
12. Courts will construe a provision as conferring power to act
retroactively when clear words are used. Both the intention and
language of the Amendment Act is clear in these respects. Applying the
Amending Act of 1973 to alienations l'rior to 23.J.1973 does not neces-
sarily mean its retrospective operation. [237A-B, E]
E
Craies on Statute Law, 7th Edn. page 389 referred to.
Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Rep-
resentatives & Ors., [1964] 6 SCR 876; Athlumney Ex Parte Wilson,
[1898] 2 Q.B.D. 547 and Mithi/esh Kumari & Anr. v. Prem Behari
(
Khare, [1989j 2 SCC 95, referred to. F
13. In the instant case, the Legislature looked back to January 23,
1973 and not beyond to put an end to the custom and merely because on
that cut off date. Some contests were brought to an abrupt end would
not make the Amendment Act retrospective. [236F]
G
14. In the instant case, the words "no person shall contest any
alienation on the ground that such alienation is contrary to custom" are
very significant. A plain reading of the provision even when construed
prospectively leads to the result that the ~ight to contest being contrary
to custom has been totally effaced and taken away. Thus no person has
any right to contest any alienation ()f immovable property whether H
218 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
ancestral or non-ancestral on the ground of being contrary to custom
A after 23.1.1973. This provision will thus apply to all pending actions
whether at the stage of trial or before the appellate court. It is well
settled that an appeal is a continuation of the suit and if a right to
contest an alienation on the ground of being contrary to custom has
been taken away, such right to contest cannot be permitted even at the
B stage of first appeal or second appeal. [239F-G]
Harbhajan Singh v. Mohan Singh & Ors., [1974] 2 SCC 364;
Sadhu Singh & Anr. v. Dharam Dev & Ors., [1981) I SCC 510; Official
Liquidator v. R. Desikachar, AIR 1974 SC 2069: [1975) 1 SCR 890;
Lakshmi Narayan Guin & Ors. v. Niranjan Modak, [1985] I SCC 270;
Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra
c Yograj Sinha, [1962] 2 SCR 159; Lachmeshwar Prasad Shukul v. Kesh-
war Lal, AIR 1941 FC 51: 1940 FCR 84; Shyabuddinsab v. Gadag-
Betgeri Municipal Borrough, [1955] l SCR 1268; King v. General Com-
missioner of Income Tax, [1916] 2 KB 249; K. C. Mukherjee, Official
Receiver v. Ramratan Kuer, [1935) LR 63 IA 47: AIR 1936 PC 49;
D Dayawati v. Inderjit, (1966] 3 SCR 275: AIR 1966 SC 1423; Mohan/al
Jain v. His Highness Maharaja Shri Sawai Man Singh, [1962] l SCR
702: AIR 1962 SC 73; Amarjit Kaur v. Pritam Singh, [1975) 1SCR605;
Colonial Sugar Refining Co. v. Irving, [1905] AC 369 at 372;
Garikapatti Veeraya v. N. Subbiah Choudhury, [1957] SCR 488; Delhi
Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, [1927]
E LR 54 IA 421: ILR 9 Lah. 284; Colonial Sugar Refining Co. Ltd. v.
Irving, [1905] AC 369; Govind Das and Ors. v. The Income Tax
Officer & Anr., (1976] l SCC 907; The United Provinces v. Mst. Atigua
Begum & Ors., (1940] 2 FCR 110; Jose Da Costa and Anr. v. Bascora
Sadasiva Sinai Narcornim & Ors., [1976] 2 SCC 917; Delhi Cloth and
General Mills Co. Ltd. v. Income-tax Commissioner, [1927] LR 54 IA
F 421; Garikapatti Veeraya v. N. Subbiah Choudhury, [1957] SCR 488,
referred to.
15. The right to appeal bas to be distingnished from the right to
contest. While the right to appeal implies the continuation of the right
sought to be effectuated in the appeal, In the instant case the power to
G contest itself constituted the custom which the legislature wanted to do
away with. To take away the power to contest means nothing else than
doing away with the custom itself. The right to contest wherever
needed, namely, at any stage of a suit is expressly barred. [243B I
Henshall v. Porter, (supra); Bowling v. Camp, [1922) W.N. 297;
H Beadling v. Goll, [1922] 39 Times L.R. 128; Smithies v. National
DARSHAN SINGH v. R.P. SINGH 219
Association of Operative Plasterers, [1909] 1 K.B. 310 and Gillmore v. A
Shooter, [1677] 2 Mod. 310, referred to.
16. Considering the principles, the provisions of the Principal
Act, the Statement of Objects and Reasons and the provisions of the
Amendment Act and the decisions of the Punjab High Court and of this B
Court, Section 7 of the Principal Act as amended by the Amendment
Act is retroactive and is applicable to pending proceedings. The deci·
sion of this Conrt dated 28.11.1986 in Ujaggar Singh v. Dharam Singh,
(Civil Appeal No. 1263of1973) and in Udham Singh v. Tarsem Singh,
(Civil Appeal No. 1135 of 1974) dated 15.7.1987 do not need recon-
sideration. [244B-C]
c
17(a) 1n the matter of a custom in relation to law three different
relations have to be distinguished. First, a custom may be only judi·
cially noticed. This belongs to the reahn of evidence and validity of the
custom. Secondly, a custom may be legally conf"mned, and regulated.
1n this case the custom remains as custom law only conf"mning or
D
regnlating it. Thirdly, a statute may be passed on the basis of a custom
in which case the custom is transformed into a statutory right and
thereafter it is not treated as a custom. [244F -G]
(b) A custom becomes a customary law when it is clothed with the
legal sanction in the judicial mode. A custom becomes law only when
enforced by the political sanction. [245E]
E .
Austin Province of Jurisprudence Determined, Lecture V (P. 163)
and Lecture XXX, referred to.
Daya Ram v. Sahel Singh & Ors., 110 PR (1906) 390; Abdul
F
(
Hussein Khan v. Bibi Sona Dero, [1970] L.R. 45 I.A. 10(13) and Salig
Ram v. Munshi Ram, [1962] 1SCR470, referred to.
In the instant case, the custom was confirmed and ~lated by
the Punjab Laws Act, 1872 and the Punjab Custom (Power to Contest)
Act, 1920 and it was done away with by the Punjab Custom (Power to
G
Contest) Amendment Act 1973. No statute was passed on the basis of
the custom itself so as to transform the custom itself intO a higher
statutory right. Therefore either before or after the custom has been
done away with by the Amendment Act, the rights of the parties under
Hindu Law remain unaffected and will provide the rule of decision
where alienations are contested uuder Hindu Law. [246F·G] H
220 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
[As the cases of the appellants under Hindu Law were not gone
A into by the High Court or lower Courts, the cases were sent back to the
High Court with a direction to examine the cases of the willing appel-
lants under Hindu Law after bearing the parties and, if needed, giving
them an opportunity to adduce further necessary evidence. [247C)
B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 248
of 1974.
From the Order dated 23.8.1973 of the Punjab & Haryana High
Court in Civil Miscellaneous No. 2518/C of 1973 in R.S.A. No. 1004 of
1973.
c V.C. Mahajan, Rajinder Sachher, Harbans Lal, D.V. Sehgal,
O.P. Sharma, M.R. Sharma, Sr. Advs., Avtar Singh Sabal, S.P.
Singh, Kailash Vasdev, M.J. Paul, Naunit Lal, E.C. Agrawala, Anant
Pall, Ms. Pumima Bhatt, N.S. Das Bahl, N.K. Aggarwal, P.N. Puri,
K.R. Nagaraja (N.P.), R.S. Hegde, Ms. Madhu Moolchandani, Mrs.
D Sheil Sethi, K.B. Rohtagi, Sushi! Kumar Jain, S.K. Mehta, Aman
Vachhar, S.K. Sabharwal, R.C. Gubrele, R.S. Sodhi, Dhruv Mehta,
Pawan, K. Behl, Uma Dutta, Vijay K. Pandit for the appearing
parties.
The Judgment of the Court was delivered by
E
K.N. SAIKIA, J. The appellants were contesting alienations
under the provisions of the Pun jab Custom (Power to Contest), Act
1920, hereinafter referred to as 'the Principal Act', and their suits were
at appellate stage in the High Court when the Pun jab Custom
(Power to Contest) Amendment Act, 1973 (Punjab Act No. 7 of
F 1973), hereinafter referred to as 'the Amendment Act', came into
force on 23rd day of January, 1973. The High Court dismissed the
appeals taking the view that no contest to alienations was permissible
after the Amendment Act came into force. Hence these eight appeals
by special leave.
G Earlier the suit Dharam Singh & Ors. v. Ujaggar Singh, disputing
the customary adoption of the defendant and the gift deed made in his
favour and claiming title to the property mutated by that right was
filed on 22.8.1966 and Judgment of the trial court was dated
16. 10.1968. On appeal the District Judge, Ludhiana by Judgment
dated 12.1.1970 remanded the case and after remand the Judgment
H was delivered by trial court on 26.8.1971; the appeal therefrom was
DARSHAN SINGH v. R.P. SINGH [SAJKIA, J.I 221
filed on 29.9.1971 and the District Judge delivered Judgment on
A
28.2.1973. Meanwhile the Amendment Act came into force on
23.1.1973. The second appeal was filed on 25.3.1973 and it was dismis-
sed on 3.4.1973. Special Leave Petition was filed in this Court oh
1.5.1973 and special leave being granted on· 21.8.1973 arose Civil
Appeal No. 1263 of 1973: Ujaggar Singh v. Dharam Singh & Ors.
B
The main question in the above appeal before this Court was
whether the Amendment Act of 1973 would or would not apply to the
pending proceedings. The appellants' contention was that it would
not. 0. Chinnappa Reddy, J. and E.S. Venkataramiah, J, as he then
was, while dismissing the appeal on 28.11.1986 held:
"In view of section 7 of the Punjab Custom (Power to C
Contest) Act as amended in 1973, there is no substance in
this appeal. We also notice that it has been the consistent
view of the Pun jab High Court that Section 7 has retrospec-
tive effect and that it also applies to pending proceedings."
D
Again in Civil Appeal No. 1135 of 1974: Udham Singh & Anr. v.
Tarsem Singh & Ors., 0. Chinnappa Reddy, and K. Jagannatha
Shetty, JJ, while rejecting the contention that the Amendment Act did
not apply to the pending proceeding, and dismissing the appeal on
15.7.1987 held:
E
"The view taken by the High Court in regard to the
Pimjab Custom (Power to Contest) Amendment Act, 1973
in the present case has consistently been taken by the High '
Court right from 1973 and we do not think we will be
justified in taking a different view at this stage."
F
In Bara Singh v. Kashmira Singh & Ors., Civil Appeal No. 1934
of 1972 reported in JT 1987 (2) SC 234, A.P. Sen and V. Balaluishna
Eradi, JJ. regarding the same question of applicability of Section 7 of
the Amended Act to the pending proceedings ordered on 4.1.1987:·
"Our attention is drawn to the view taken by this Court in .G
Ujaggar Singh v. Dharam Singh & Ors., (Civil Appeal No.
1263 of 1973, decided on November 28, 1986) to the effect
that the Punjab Custom (Power to Contest) Amendment
Act, 1973 is retrospective in operation and that it also
applies to pending proceedings. We find that the view u ·1
appears to run counter to the express provisions of sub- .,
222 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
s. (2) of s. 1 of the Amendment Act which provides that the
A
amendment shall be deemed to have come into force only
on January 3, 1973. It cannot be disputed that s. 3 of the
Amendment Act which makes s. 7 of tbe Act applicable to
all immovable property i.e. whether ancestral or non-
ancestral affects substantive rights of the parties. When the
B legislature has clearly indicated that the Amendment Act
shall be prospective in operation, it follows that s. 7 as
amended, cannot apply to pending proceedings instituted
much earlier. We therefore feel that the view expressed in
Ujaggar Singh v. Dharam Singh & Ors., requires recon-
sideration.
c Let the papers be placed before Hon'ble the Chief
Justice of India for the case being placed before a Bench of
three Judges."
This is how nine connected appe'als were listed before us. One of
D those, Bara Singh v. Kashmira Singh & Ors., Civil Appeal No. 1934 of
1972 has since been disposed of on its merits as the appellant therein
did not raise the question of retrospective operation of the Amendment
Act. The remaining eight appeals, heard analogously, on the question
referred to, are. being disposed of by this common Judgment.
E The main contentions of the appellants are that neither by
express words nor by necessary implication the Amendment Act can
be said to be retrospective and applicable to pending proceedings;
more so in view of sub-section (2) of S. 1 of the Amendment Act
deeming it to have come into force on 23.1.1973 and the retention of
the provisions of S. 4 of the Principal Act; and that the vested rights to
F contest alienations could not be said to have been taken away by
retrospective operation.
·The respondents' contentions are that in view of the deletion of
S. 6 and amendment of S. 7 by the Amendment Act so as to include
both ancestral and non-ancestral immovable properties, there could be
G no question of any contest after the Amendment Act came into force
and this Court in Ujaggar Singh's case (supra) and Udham Singh's case
(supra) already held that the Amendment Act is retrospective and
applicable to pending proceedings and the High Court rightly dismis-
sed the appeals. We proceed to examine the rival contentions.
H The Punjab Laws Act, 1872 (Act 4 of 1872) was an Act for
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.l 223
declaring which of certain rules, laws and regulations would have the
A
force of law in the Punjab and for other purposes. Its preamble said:
"Whereas certain rules, laws and regulations made hereto-
fore for the Punjab, acquired the force of law under the
provisions of section 25 of the Indian Councils Act, 1861;
and whereas it is expedient to declare which of the said B
rules, laws and regulations shall henceforth be in force in
Punjab, and to amend, consolidate or repeal others of the
said rules, orders and regulations; it is hereby enacted as
follows."
Section 5 of the Punjab Laws Act, 1872 provides:
c
"Decisions in certain cases to be according to native Jaw:-
In questions regarding succession, special property of
females, betrothal, marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions, or any religious usage or institu- D
tion, the rule of decision shall be:
(a) Any custom applicable to the parties concerned,
which is not contrary to justice, equity or good conscience,
and has not been by this or any other enactment altered or
abolished, and has not been declared to be void by any E
competent authority;
(b) the Mohammedan law, in cases where the parties
are Mohammedan, and the Hindu law; in cases where the
parties are Hindus, except in so far as such law has been
altered or abolished by legislative enactment, or is opposed f
to the provisions of this Act, or has been modified by any
such custom as is above referred to.
The custom with which we are concerned in these cases is
succinctly stated by Rattigan in his Digest of Customary Law in the
Punjab, at para 59 as under: G
"59. Ancestral immovable property is ordinarily inalien-
able (especially amongst 'Jats' residing in the central dis-
tricts of the Punjab), except for necessity or with the con-
sent of male descendants, or, in the case of a sonless
proprietor, of his male collaterals. 'Provided' that a pro- H
224 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
prietor can alienate ancestral immovable property at plea-
A
sure if there is at the date of such alienation neither a male
descendant nor a male collateral in existence (No. 36 P.R.
1895;No. 55P.R.1903,F.B.)."
The degrees of collaterals eligible to contest an alienation on the
B basis of the above custom being not limited by the custom itself, there
arose need to enact certain restrictions in respect of suits in which the
alienation of immovable property or the appointment of heir was con-
tested by descendants or collaterals on the ground that it was contrary
to custom. It appears that in 1917 the local Government had appointed •
a committee to investigate in detail the main problem of codification,
and it referred to this committee the question of the form which the
c subsidiary measure to restrict the rights of alienation to contest should
take. The committee prepared a Draft Bill which was circulated for
opinion in June 1917 and the Bill was prepared after necessary
changes. The Principal Act was accordingly passed. It contained only
seven sections. It extended to Punjab. As defined in S. 2, "alienation"
D includes any testamentary disposition of property. "Appointment of
an heir" includes any adoption made or purporting to be made accord-
ing to custom. Stating the scope of the Act S. 3 provides that the Act
shall apply only in respect of alienation of immovable property or
appointment of heirs made by persons who in regard to such alienation
or appointment were governed by custom. Section 4 is the saving
f, section and it says:
"This Act shall not affect any right to contest any aliena-
tion or appointment of an heir made before the date on
which tliis Act comes into force."
F Thus, the Principal Act did not affect alienations or appointments
made before the date on which it came into force. Section 5 preserved
the rights of a female and said: '
"Nothing in this Act shall apply to any alienation or
appointment of an heir made by a female."
,G
Section 6 before it was omitted by the Amendment Act of 1973 stood
as follows:
"6. Limitation on the right to contest alienations and
appointment of heirs:- Subject to the provisions contained
in section 4 and notwithstanding anything to the contrary
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.I 225
contained in section 5, Punjab Laws Act, 1872, no person A
shall contest any alienation of ancestral immovable pro-
perty or any appointment of an heir to such property on the
ground that such alienation or appointment is contrary to
custom, unless such person is descended in male lineal des-
cent from the great-great-grandfather of the person making
the alienation or appointment." B
Section 7 dealt with alienation of non-ancestral property. Before
amendment by the Amendment Act of 1973, it said:
~
'
, "Alienation of non-ancestral property:- Notwithstanding
anything to the contrary contained in section 5, Punjab
Laws Act, 1872, no person shall contest any alienation of
non-ancestral immovable property or any appointment of
C
an heir to such property on the ground that such alienation
or appointment is contrary to custom."
Parties agree that owing to multiplicity of suits and uncertainty of D
I alienations the State Legislature felt the need for amendment of the
law for the changing society. This is quite natural. Sir Henry Maine
said in his Ancient Law, confining to progressive societies:
"With respect to them it may be laid down that social
necessities and social opinion are always more or less in E
advance of Law. We may come indefinitely near to the
closing of the gap between them, but it has a perpetual
tendency to reopen. Law is stable; the societies we are
speaking of are progressive. The greater or less happiness
of a people depends on. the degree of promptitude with
which the gulf is narrowed." (Everyman's Lib. Edn. P. 15) F
The Punjab Custom (Power to Contest) Amendment (Punjab
Ordinance No. 2 of 1973) was promulgated with effect from January
23, 1973. The Amendment Act repealed that Ordinance. It is stated at
the Bar that the Ordinance only omitted. S. 6 of the Principal Act. The
Statement of Objects and Reasons of the Punjab Custom (Power to G
Contest) Amendment Bill, 1973 was:
"In matters regarding alienation of immovable property,
section 5 of the Punjab Laws Act, 1872, provides that the
rule of decision should be the custom applicable to parties
concerned. The custom in Punjab made ancestral immov- H
226 SCPREME COURT REPORTS [1990] Supp. 3 S.C.R.
able property ordinarily inalienable except for legal neces-
A sity or with the consent of male descendants or in the case
of sonless Proprietor, of his male collaterals. The male
lineal descendants of the person making the alienation had
the right to contest alienation. The right to contest was
limited to some extent bys. 6 of the Punjab Custom (Power
B to Contest) Act, 1920.
2. Alongwith the repeal of the Punjab Pre-emption Act,
1913, it was considered that the right to contest alienation of
Immovable property whether ancestral or non-ancestral on
the ground that it is contrary to custom, should also be done
away with. Hence this Bill."
c (Emphasis supplied)
The Amendment Act received the assent of Governor of Pun jab
on the 6th of April, 1973 and was first published in the Punjab Govern-
ment Gazette Extraordinary dated April 9, 1973. As provided in S. 1 it
D shall be deemed to have come into force on the 23rd day of January,
1973. By S. 2 of the Amendment Act S. 6 of the Principal Act shall be
omitted, and by S. 3 in S. 7 of the Principal Act, for the words "non
ancestral immovable property" the words "immovable property,
whether ancestral or non-ancestral" shall be substituted. After
amendment S. 7 would read as follows:
E
7. Alienation of non-ancestral property.-Notwithstand-
ing anything to the contrary contained in section 5, Punjab
Laws Act, 1872, no person shall contest any alienation of
immovable property whether ancestral or non-ancestral or
any appointment of an heir to such property on the ground
F that such alienation or appointmem is contrary to custom."
The question now is what was the effect of the Amendment Act.
We have seen that the object of S. 5 of the Punjab Laws Act, 1872 was
to settle for Punjab the rule of decision in question stated in clauses (a)
and (b) of the section. The Punjab Laws Act settled this question
G laying down the first rule 'any custom applicable to the parties con-
cerned which was not contrary to justice, equity and good conscience,
and which had not been, by the Act itself or by any other enactment,
altered or abolished, and had not been declared to be void by any
competent authority.' Clause (b) provided that the principle of
Mohammedan law in cases where the parties were Mohammedan and
H the Hindu law, in cases where the parties were Hindus, should be the
DARSHAN SINGH v. R.P. SINGH (SAIKIA, J.) 227
other rule of decision except in so far as such law has been altered or
A
abolished by legislative enactment, or is opposed to the provisions of
that Act, or has been modified by any such custom as referred to
thereinabove. Thus the legislature intended that the Hindu and
Mohammedan laws should be applied where no such customary rule
prevailed. In Vaishno Ditti's case 1929 10 Lah. 86 (P.C.) at p. 103, it
was held that in cases where the custom was alleged a duty was also
imposed upon the Court to endeavour to ascertain the existence and
nature of that custom. In Thakur Gokulchand v. Parvin Kumari, AIR
1952 SC 231: 1952 SCR 825, it was held that S. 3 of the Principal Act
applied only in respect of alienation of immovable property or
appointment of heirs made by persons who in regard to such aliena-
tions or appointments were governed by custom. In Ujagar Singh v.
Mst. Jeo., AIR 1959 SC 1041: [1959] Supp. 2 SCR 781, it was held by
c
this Court that the plaintiff was entitled to fall back on her personal
law where the parties to a suit had based their respective claims on the
basis of a custom but neither side established the respective custom set
up by them.
Section 6 of the Principal Act limited the right to contest any
alienation to ancestral immovable property as being contrary to
custom to such persons as are descendants in the male linear descent
from the great-grandfather of the person making the alienation or
appointment. Thus the right to contest, which was available to persons
before the coming into force of the Principal Act, had been taken away E
from persons other than those mentioned in S. 6 to the extent that they
would not be able to contest the alienation of ancestral immovable
property. Section 7 put a complete bar to contest of any alienation of
ancestral or non-ancestral immovable property or appointment of an
heir to such property on the ground that such alienation or appoint-
ment was contrary to custom. F
From the Statement of Objects and Reasons of the Amendment
Bill, 1973, there is no doubt that alongwith the repeal of the Punjab
Pre-emption Act, 1913 it was considered that the right to contest alie-
nation .of immovable property whether ancestral or non-ancestral on
the ground that it was contrary to custom should be done away with. G
The Punjab Pre-emption (Repeat) Act, 1973, Punjab Act No. 11 of
1973 by S. 2 repeated the Punjab Pre-emption Act, 1913. Section 3 of
that Act put a complete bar to pass decrees in suit for pre-emption and
said:
"On and from the date of commencement of the Punjab H
228 SUPREME COURT REPORTS [1990) Supp. 3 S.C.R.
Pre-emption (Repeal) Act, 1973, no Court shall pass a
A
decree in any suit for pre-emption."
By S. 4 of the Punjab Pre-emption (Repeal) Act, 1973, the Punjab
Pre-emption (Repeal) Ordinance 1973 was repealed. There is no
doubt that from the commencement of the Pun jab Pre-emption
B (Repeal) Act, 1973 no court shall pass a decree in any suit for pre-
emption. It is common ground that that Act has done away with any
claim of pre-emption from the date of the commencement of that Act.
In other words, from that date the customary pre-emption has been
done away with. There can, therefore, be no doubt that the Amend-
ment Act similarly had the object and purpose of doing away with the
custom of contesting alienation. That was sought to be achieved firstly
c by deleting the provision of S. 6 and secondly by putting a complete
bar to contesting alienations or appointments of heirs in respect of
both ancestral and non-ancestral immovable property. There can,
therefore, be no doubt that the intention of the legislature was to do
away with the custom of contesting alienation altogether. There is also
D no doubt about the competence of the legislature in passing the
Amendment Act with a view to do away with the custom.
In Halsbury's Laws of England, 4th Edn. Vol. 12, para 441, we
read:
E "441. Abolition only by statute. Custom, being in effect
local common law within the locality where it exists, can
only be abolished or extinguished by Act of Parliament. An
Act of Parliament may abolish a custom either by express
provision or by the use of words which are inconsistent with
the continued existence of the custom."
F
The intention of the legislature being clear, in case of the Pre-emption
Act by repeal of the Act itself the legislature put an end to that
custom. Has the legislature similarly put an end to the custom of
contesting alienation either by express provision or by the use of words
which are inconsistent with the continued existence of the custom?
G The effect of omission of S. 6 only by the Amendment Act, as was
done by the Ordinance, might perhaps have been ambiguous as it
could even mean that the restriction was removed or that it would not
be restricted to collaterals. The provisions of S. 7 that no person shall
contest any alienation of immovable property whether ancestral or
non-ancestral or any appointment of an heir to such property on the
H ground such alienation or appointment is contrary to custom undoub-
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.) 229
tedly puts an end to contest of any alienation. This should normally
A
leave no doubt that the use of the above words and expression are
inconsistent with the continued existence of the custom.
Mr. Rajinder Sachhar, the learned counsel for appellants argues
that S. 4 throws veritable doubt to such a conclusion and that giving of
retrospective effect to the Amendment Act was neither expressed nor B
implies except to the extent that though it received the asseent of the
Governor of Punjab on April 6, 1973 and was published in the Punjab
Government Gazette Extraordinary on April 9, 1973, the Amendment
Act shall be deemed to have come into force on the 23rd day of
January, 1973. Admittedly this was because that was the date of the
corresponding Ordinance repealed by the Act.
c
We first take the question of S. 4. As we have already· noted that
the Act shall not effect any right to contest any alienation or appoint-
ment of an heir made before the date on which the Principal Act came
into force. This means the restriction or limitation as to the degree of
collaterals as also the nature of the property, namely, the immovable D
property whether ancestral or non-ancestral would not be there. The
Amendment Act of 1973 having not omitted or deleted this provision,
consequently those rights having not been affected, those would con-
tinue till the Amendment Act came into force on January 23, 1973 and
even later. If that was so, counsel asks, what is the justification in
holding that the rights that accrued before the Amendment Act came E
into force would be put to an end by the Amending Act?
Mr. Sehgal, the learned counsel for the respondents has two
answers. First, in view of the Punjab Customs Limitation Act, 1920
having prescribed a period of limitation of six years and three years, it
is fallacious to say that those rights continued till 1973, or that contests F
already made would continue beyond fifty years.
It is true that the Punjab Limitation (Custom) Act, 1920 is an
Act to amend and consolidate the law governing the limitation of suits
relating to alienation of ancestral immovable property and appoint-
ments of heirs by persons who follow custom in Punjab. That Act was G
passed after obtaining previous sanction of the Governor General
under S. 79(2) of the Government of India Act, 1915. It was the
outcome of proposals by the Punjab Customary Law Conference con-
vened by the Lieutenant Governor in 1915. It repealed the Punjab
Limitation (Ancestral Land Alienation) Act, 1900. Section 5 of the
Act provided for dismissal of suits of t~e descriptions specified in the H
230 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
A Act if instituted after the period of limitation prescribed in the Act has
expired. It said:
"Subject to the provisions contained in sections 4 to 25
(inclusive) of the Indian Limitation Act, 1908, and notwith-
standing anything to the contrary, contained in the first
B schedule of the said Act, every suit, of any description
specified· in the schedule annexed to this Act, instituted
after the period of limitation prescribed therefor in the
schedule shall be dismissed, although limitation has not
been set up as a defence."
In the Schedule, in cases of a suit for declaration that an aliena-
c tion of ancestral immovable property will not, according to custom, be
binding on the plaintiff after the death of the alienor or similar suits a
limitation period of six years has been provided and in cases in whkh a
declaratory decree is obtained a limitation of three years has been
provided. Mr. Sehgal is, therefore, right in his submission that pre-
D Principal Act rights could not continue beyond 23.1.1973 and those
already contested were also not likely to continue so long.
Secondly, Mr. Sehgal submits, the fact that S. 4 was not omitted
even after more than 50 years would not justify the inference of the
intention of the legislature not to do away with the custom of contest-
E ing alienation. Mr. Sachhar's reply to the first answer is that the period
of limitation was for an institution of the suit and assuming that suits
have been instituted within limitation there is no bar to continuation of
/
the suits. Counsel refutes the submission that S. 7 would be a bar to
continuation of such contest in view of the legal position that the
amended provision of S. 7 _in the Act will also be covered by the
F expression of 'this Act' in S. 4. Counsel relied on the dictum of Vivian
Bose, J. that when a subsequent Act amends the earlier one in such a
way as to incorporate itself or a part of itself into the earlier, then the
earlier Act must thereafter be read and construed (except where that
would lead to a repugnancy, inconsistency or absurdity) as if the
altered words had been written into the earlier Act with pen and ink
G and the old words scored out so that there is no need to refer to the
amending Act at all. There is no doubt that taking to the logical
extreme that would be so, but in. view of the fact that the 1973 Act
having come into force after more than 50 years, the legislature might
perhaps consider the amendment not necessary or might have tliought
that after such distance of time to question of any contest c' pre-
H Principal Act rights would be possible or probable. Nequeieges neque
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.I 231
senatus consulta ita seribi possunt utomnis casus qui qUandoque in A
sediriunt comprehendatur; sed sufficit ea quae plaeramque accidunt
conteneri. Neither laws nor Acts of a Parliament can be so written as to
include all actual or possible cases; it is sufficient if they provide for
those things which frequently or ordinarily happen. What is material is
to see the expressed objects and reasons and the language used. Hafa- B
bury's Laws of England, Vol. 12 para 442 says:
"As a general rule, if the provisions of an Act of Parliament
are repugnant to the continued nistence of the custom, the
custom will be treated as abrogated and destroyed, al-
though the Act does not actually extinguish the custom bv
express words. Although the question whether the custom C
is destroyed or not has been said to turn on the question
whether the statute is an affirmative or a negative statute,
this distinction appears to be merely one of the factors tu
be considered in determining whether or not the statute is
repugnant to the custom. As a corollary to this rule, no one D
can allege a custom against an Act of Parliament, unless
the custom be saved or preserved by another Act of
Paliament."
Applying the above principle and considering the stated objects
and reasons of the Amendment Act, namely, to do away with the
E
custom, and the negative provision of S. 7 of the Amendment Act, we
are of the view that continuance of the custom is inconsistent with
them. Consuetudo semel reprobata non potest amplius induci. A
custom once disallowed cannot be gain brought forward .
.The view we have taken appears to us to be consistent with the F
provisions of the Hindu Succession Act which left only the right to
contest unaffected. It is the common case of the parties that they are
governed by the Hindu Succession Act, 1956 (No. 30 of 1956). Section
4 of the Act provides for overriding effect of the Act and says:
"4(1) Save as otherwise expressly provided in this Act,-
G
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is
made in this Act; H
232 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
{b) any other law in force immediately before the com-
A
mencement of this Act shall cease to apply to Hindus in so
far as it is inconsistent with any of the provisions contained
in this Act.
{2) For the removal of doubts it is hereby declared that
B nothing contained in this Act shall be deemed to affect the
provisions of any Jaw for the time being in force providing
for the prevention of fragmentation of agricultural holdings
or for the fixation of ceilings or for the devolution of
tenancy rights in respect of such holdings."
The above provisions in effect lay down that in respect of the
c matters dealt with by the Act it repeals all existing laws, whether in the
form of enactments or otherwise, which are inconsistent with this Act.
The result is that immediately on coming into operation of the Act the
law of Succession hitherto applicable to the parties, by virtue of any
text, rule or interpretation of Hindu law or any custom or usage having
D the force of law ceased to have effect in respect of the matters ex-
pressly dealt with by the Act. The overriding effect of the Act has been
emphasised in the decisions in S.S. Munna Lal v. S.S. Rajkumar &
Ors., AIR 1962 SC 1493; 1962 Supp. (3) SCR 418; Giasi Ram & Ors.
v. Ramjilal & Ors., AIR 1969 SC 1144; (1969) 1SCC813; Punithavalli
Ammal v. Ramalingam (Minor) & Anr., AIR 1970 SC 1730: 1970 (3)
E SCR 894; Commissioner of Wealth Tax, Kanpur & Ors. v. Chander
Sen & Ors., AIR 1986 SC 1753: I 1986] 3 SCC 567 and Yudhishter v.
Ashok Kumar, AIR 1987 SC 558: [1987] 1SCC204.
In Giasi Ram_ v. _Ramjilal, (supra) where the parties were Hindu
jats of Punjab it was held by this Court that the Principal Act was
F enacted to restrict the rights exercisable by members of the family to
contest alienations made by holder of ancestral property. By virtue of
Section 6 of the Act no person was entitled to contest an alienation of
ancestral immovable property unless he was descended in the male
lineal from the great-grandfather of the alienor. Under the customary
Jaw in force in the Punjab a declaratory decree obtained by the
G reversionary heir in an action to set aside the alienation of ancestral
property enured in favour of all persons who ultimately took the estate
on the death of the alienor for the object of a declaratory suit filed by a
reversionary heir impeaching an alienation of ancestral estate was to
remove a common apprehended injury, in the interest of the rever-
sioners. The decree did not make the alientation a nullity-'-it removed
H the obstacle to the right of the reversioner entitled to succeed when the
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.] 233
succession opened. By the decree passed in the suit filed by Giasi A
Ram, it was declared that the alienations by Jwala were not binding
·after his life time and the property will revert to his estate. This Court
observed that it was true that under the customary law the wife and the
daughters of a holder of ancestral property could not sue to obtain a
declaration that the alienation of ancestral property would not bind
the reversioners after the death of the alienor. But a declaratory B
decree obtained in a suit instituted by a reversioner competent to sue
had the effect of restoring the property alienated to the estate of the
alienor and that once the property alienated reverted to the estate of
Jwala at the point of his death and all persons who would, but for the
alienation, have taken the estate will be entitled to inherit the same. It
was further observed that if Jwala had died before the Hindu Succes-
sion Act, 1956 was enacted the three sons would have taken the estate
c
to the exclusion of the widow and the two daughters. After the enact-
ment of the Hindu Succession Act the estate devolved by virtue of
Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three
sons, the widow and the two daughters. The fact that the widow and
the daughters were not eligible to contest an alienation under the D
Principal Act would be of no effect on their succession according to the
Hindu Succession Act.
In Smt. Manshan & Ors. v. Tej Ram & Ors, [1980] Supp. SCC
367, following Giasi Ram (supra) it was held that by virtue of Sections
4 and 8 of the Hindu Succession Act, on the date of death of th.e last E
male holder in 1957, the daughters became the preferential heirs in
supersession of the prevalent custom. The effect of the declaratory
decree passed in 1950 was merely to declare that whosoever would be
the next reversioner to the estate of the last male holder at the time of
his death would get the property in respect of which the declaratory
decree was made and not necessarily the person in whose favour the F
declaratory decree was passed.
The overriding effect of the Hindu Succession Act was recog-
nised in a series of decisions of the Punjab and Haryana High Court
wherein it was held that Punjab Agricultural Custom, is so far as it was
applicable to Hindus; was no longer in force as regards the matters of G
succession 'Y.hich were now governed by the provisions of that Act
Taro v. Darshan Singh, AIR 1960 Punjab.145: ILR 1959 Punjab 2253,
Hansraj v. Dhanwant Singh, AIR 1961 Punjab 510: ILR (1961) 1
Punjab 369, Banso v. Charan Singh, AIR 1961 Punjab 45; Kaur S{11gh
v. Jaggar Singh, AI.R 1961Punjab489; Ka/u v. Nand Singh, AIR 1974
P&H50. H
234 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
A The result is that any rule or law of succession previously applic-
able to those who were governed by custom would after the coming
into force of the Hindu Succession Act be permissible only in respect
of the matters for which no provision is made under the Act. However
the Hindu Succession Act does not appear to have abrogated any rule
or customary law in Pun jab relating to restrictions on alienation by a
B male proprietor over and above what could be done under Hindu Law.
The right of reversioners, besides those who could do so under Hindu
Law, to challenge or contest any such alienation could not be said to
have ceased to exist. This being the position, it was still necessary to do
away with the right to contest such an alienation as the legislature
desired. The Amendment Act was the measure adopted.
c After the Amendment Act there has been a series of decisions of
the Punjab and Haryana High Court holding that the Amendment Act
applies to the pending cases also. Bant Singh v. Gurpreet Singh, (1973]
75 PLR 797; Gurdial Singh v. Piara Singh, [1973] 13 Cur. L.J. 529;
Charan Singh v. Gehl Singh, (1974] 76 PLR 125; fit Singh v. Karnail
D Singh, [1975] 77 PLR 488 and Surjit Kaur v. Zail Singh, [1977] 79 PLR
690. Mr. Sehgal submits that five Single Benches and one Division
Bench have taken the view that the Amendment Act affected the
pending cases and that no contrary view has been taken by any learned
Judge of the High Court of Pun jab and Haryana so far.
E The view taken by this Court in Ujaggar Singh and Udham
Singh's case have to be viewed in this context. Stare decisis et non
quieta movere. To adhere to precedent, and not to unsettle things
which are established. In Raj Narain Pandey and Ors. v. Sant Prasad
Tewari and Ors., [1973] 2 SCC 35, it was observed in paragraph 10 that
in the matter of a local statute, the view taken by the High Court over
F a number of years should normally be adhered to and not disturbed. A
different view would not only introduce an element of uncertainty and
confusion, it would also have the effect of unsettling transactions
which might have been entered into on the faith of those decisions. As
observed by Lord Evershed M.R. in the case of Brownsea Haven
Properties v. Poole Corpn., (1958] Ch. 574 (CA): (1958) 1 All E.R.
G 205, there is well-established authority for the view that a decision of
long standing on the basis of which many persons will in the course of
time have arranged their affairs should not lightly be disturbed by a
superior court not strictly bound itself by the decision. We respectfully
agree. The High Court's line of reasoning, as in these cases, has been
that the power to contest cannot be allowed to be exercised after the
H amendment of Section 7 by the Amendment Act.
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.] 235
The meaning of the word 'contest' is, according to Black's Law
A
Dictionary, to make defence to an adverse claim in a court of law; to
oppose, resist or dispute; to strive to win or hold; to controvert, liti-
gate, call in question, challenge, to defend. The contest continues right
up to the final decision or, in other words the right to contest comes to
an end only when a final decision is given one way or the other putting
an end. to the litigation between the parties with regard to the aliena- B
tion. It is well-settled proposition of law that appeal is a continuation
of a suit and any change in law, which has taken place between the
date of the decree and the decision of the appeal, has to be taken into
consideration. When a suit filed by a reversioner is dismissed and he
files an appeal then before the Appellate Court also he is contesting the
alienation. If he does not contest or challenge the alienation, then he
cannot achieve success. Therefore, when the axe has fallen before the
c
contest was over, let the axe lie where it falls.
Mr. Sachhar relies on Thakur Gokulchand v. Parvin Kumari
(supra), Garikapatti Veeraya v. N. Subbian Choudhury, [1957] SCR
488; Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, [1976] 2 SCC D
917; Govind Das v. The Income Tax Officer, [1976] 1 SCC 906;
Henshall v. Porter, [1923] 2 L.R. King's Bench Div. 193; United Pro-
vinces v. Mst. Atiga Begum, [1940] 2 FCR 110, in support of his sub-
mission that the Amendment Act was not made retrospective by the
legislature either expressly or by necessary implication as the Act itself
expressly provided that it shall be deemed to have come into force on
23rd January, 1973; and therefore there would be no justification to
giving it retrospective operation. The vested right to contest which was
created on the alienation having taken place and which had been
litigated in the Court, argues Mr. Sachhar, could not be taken away. In
other words, the vested right to contest in appeal was not affected by
the Amendment Act. However, to appreciate this argument we have F
to analyse and distinguish between the two rights involved, namely,
the right to contest and the right to appeal against lower Court's deci-
sion. Of these two rights, while the right to contest is a customary
right, the right to appeal is always a creature of statute. The change of
the forum for appeal by enactment may not affect tbe right of appeal
itself. In the instant case we are concerned with the right to contest and G
not with the right to appeal as such. There is also no dispute as to the
propositions of law regarding vested rights being not taken away by an
enactment which is ex facie or by implication not retrospective. But
merely because an Act envisages a past act or event in the sweep of its
operation, it may not necessarily be said to be retrospective. Retros-
pective, according to Black's Law Dictionary, means looking back- H
236 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
ward; contemplating what is past; having reference to a statute or
A
things existing before the Act in question. Retrospective law, accord-
ing to the same Dictionary, means a law which looks backward or
contemplates the past; one which is made to affect acts or facts occur-
ring, or rights occurring, before it came into force. Every statute which
takes away or impairs vested rights acquired under existing laws, or
B creates a new obligation, imposes a new duty, or attaches a new disa-
bility in respect to transactions or considerations already past.
Retroactive statute means a statute which creates a new obligation on
transactions or considerations already past or destroys or impairs ves-
ted rights.
In Halsbury's Laws of England, 4th Edn., Vol. 44, at paragraph
c 921 we find:
"921. Meaning of 'retrospective'. It bas been said that
'retrospective' is somewhat ambiguous and that a good deal
of confusion has been caused by the fact that it is used in
D more senses than one. In general, however, the courts
regard as retrospective any statute which operates on cases
or facts coming into existence before its commencement in
the sense that it affects, even if for the future only, the
character or consequences of transactions previously
entered into or of other past conduct. Thus a statute is not
E retrospective merely because it affects existing rights; nor
is it retrospective merely because a part of the requisites for
its action is drawn from a time antecedent to its passing."
We are inclined to take the view that in the instant case Legisla-
ture looked back to 23rd January 1973 and not beyond to put an end to
F the custom and merely because on that cut off date some contests were
brought to abrupt end would not make the Amendment Act retrospec-
tive. In other words, it would not be retrospective merely because a
part of the requisites for its action was drawn from a time antecedent
to the Amendment Act coming into force. We are also of the view that
while providing that "no person shall contest any alienation of immov-
G able property whether ancestral or non-ancestral or any appointment
of an heir to such property'', without preserving any right to contest
such alienations or appointments as were made after the coming into
force of the Principal Act and before the coming into force of the
Amendment Act, the intention of the legislature was to cut off even
the vested right; and that it was so by implication as well. There is no
H dispute as to the proposition that retrospective effect is not to be given
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.] 237
to an Act unless, the legislature made it so by express words or neces-
A
sary implication. But in the instant case it appears that this was the
intention of the. Legislature. Similarly courts will construe a provision
as conferring power to act retroactively when clear words are used. We
find both the intention and language of the Amendment Act clear in
these respects.
B
Craies on Statute Law, 7th Edn. at page 389 has stated as under:
"It is obviously competent for the legislature, in its
wisdom, to make the provisions of an Act of Parliament
retrospective, and no one denies the competency of the
Legislature to pass retrospective statutes if they think fit, C
and many times they have done so. Before giving such a
construction to an act of Parliament one would require that
it should either appear very clearly in the terms of the Act
or arise by necessary and distinct interpretation, and
perhaps no rule of construction is more firmly established
than this-that a retrospective operation is not to be given D
to a statute so as to impair an existing right or obligation
otherwise than as regards matter cif procedure, unless that
effect cannot be avoided without doing violence to the
language of the enactment."
We agree with the above statement of law. However, applying the E
Amending Act of 1973 to alienations prior to 23.1.1973 does not neces-
sarily mean its retrospective operation. ·
In Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His
Representatives & Ors., [1964] 6 SCR 876, on the question of re-
troactivity of S. 5 of Assam Non-Agricultural Urban Areas Tenancy F
Act, 1955, referring to Athlumney Ex:rarte Wilson, [1898] 2 Q.B.D.
547 the Constitution Bench observed:
"In order to make the statement of the law relating to the
relevant rule of construction which has to be adopted in
dealing with the effect of statutory provisions in this con- G
nection, we ought to add that retroactive operation of a
statutory provision can be inferred even in cases where
such retroactive operation appears to be clearly implicit in
the provision construed in the context where it occurs. In
other words, as statutory provision is held to be retroactive
either when it is so declared by express terms, or the inten- H
238 SUPREME COURT REPORTS ( 1990] Supp. 3 S.C.R.
tion to make it retroactive clearly follows from the relevant
A
words and the context in which they occur."
In Mithilesh Kumari & Anr. v. Prem Behari Khare, [1989] 2 SCC
95, this Court while interpreting S. 4 of the Benami Transactions (Pro-
hibition) Act, 1988 observed at para 21:
a
"However, a statute is not probably called a retrospective
statute because a part of the requisites for its action is
drawn from a time antec,edent to its passing. We muSt look:
at the general scope and purview of the statute and at the
remedy sought to be applied, and consider what was the
former state of Law and what the legislation contemplated.
c Every law that takes away or impairs rights vested agree-
ably to existing laws is retrospective, and is generally unjust
and may be oppressive. But laws made justly and for the
benefit of individuals and the community as a whole, as in
this case, may relate to a time antecedent to their com-
D mencement. The presumption against retrospectivity may
in such cases be rebutted by necessary implications from
the language employed in the statute. It cannot be said to
be an invariably rule that a statute could not be retrospec-
tive unless so expressed in the very terms of the section
which had to be construed. The question is whether on a
proper construction the legislature may be said to have so
expressed its intention."
In the instant case the words "no person shall contest any aliena-
tion on the ground that such alienation is contrary to custom" are very
significant. A plain reading of the above provision even when con-
F strued prospectively leads to the result that the right to contest being
contrary to custom has been totally effaced and taken away. Thus 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 after 23.1.1973. This provision will thus apply to all pending
actions whether at the stage of trial or before the appellate court. It is
G well settled that an appeal is a continuation of the suit-and· if-a right to
contest an alienation on the ground of being contrary to custom has
been taken away, such right to contest cannot be permitted even at the
stage of first appeal or second appeal.
The proposition that appeal is a continuation of a suit and is only
H a rehearing of it is well established by a catena of decisions of this
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.l 239
Court. In Harbhajan Singh v. Mohan Singh & Ors., [1974) 2 SCC 364
A
interpreting S. 3 of the Punjab Pre-emption (Repeal) Act, 1973 which
provided that on and from the date of Punjab Pre-emption (Repeal)
Act, 1973 no court shall pass a decree in a suit for pre-emption, and the
appellant challenged the correctness of a decree passed by the High_
Court dismissing a suit for pre-emption, after the Act came into force
this Court observed that the appeal was a rehearing and if the High B
Court were to confirm the decree allowing the suit for pre-emption, it
would be passing a decree in a suit for pre-emption, for, when the
appellate court confirms a decree, it passes a decree of its own.
In another case under the Punjab Pre-emption (Repeal) Act
1973 Sadhu Singh & Anr. v. Dharam Dev & Ors., [1981] 1 SCC 510,
this Court held that where a decree was passed by the trial court prior c
to the coming into force of the Act but was challenged in appeal after
the Act was passed and affirmed on appeal, that would fall within the
mischief of S. 3 while the case was pending in the High Court. The
decree challenged in appeal was reopened and the appellate hearing
was a re-hearing of the whole subject matter and when a decree was D
passed in appeal the first decree merged in the appellate decree and it
came within the scope of S. 3 which interdicted the passing of a decree
even on appeal. Official Liquidator v. R. Desikachar, AIR 1974 SC
2069: [ 1975) 1 SCR 890 was applied. The above principle was reiterated
in Lakshmi Narayan Guin & Ors. v. Niranjan Modak, [1985] 1 SCC
270, where s..;b-section (1) of S. 13 of the West.Bengal Premises and E
Tenancy Act was to be interpreted and the suit was instituted before
the Act came into force and that sub-section directed the court not to
make any order or decree for possession, subject of course to statutory
exceptions, it was held that the legislative command in effect deprived
the court of its unqualified jurisdiction to make such order or decree.
"It is true that when the suit was instituted the court possessed such 'f
jurisdiction and could pass a decree for possession. But it was divested
of that jurisdiction when the Act was brought into force and the
language of the sub-section made that abundantly clear." Shah Bhojraj
Kuverji Oil Mills & Ginning Factory v. Subbash Chandra Yograj
Sinha, [ 1962) 2 SCR 159 was applied.
G
In Mithilesh Kumari, (supra) also this Court observed:
"Lachmeshwar Prasad Shukul v. Keshwar Lal, AIR 1941
FC 51: 1940 FCR 84, is an authority for holding that the
hearing of appeal under the procedural law of India is in
the nature of re-hearing and therefore in moulding the H
240 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
relief to be granted in a case on appeal, the appellate court
A.
is entitled to take into account even facts and events which
have come into existence after the decree appealed against.
Consequently, the appellate court is competent to take into
• account legislative changes since the decision under appeal
was given and its powers are not confined only to see
B whether the lower court's decision was correct according to
the law as it stood at the time when its decision was given.
Once the decree of the High Court has been appealed
against, the matter became sub judice again and thereafter
this Court had seisin of the whole case, though for certain
purposes, e.g., execution, the decree was regarded as final
and the courts below retained jurisdiction in that regard.
c This was followed in Shyabuddinsab v. Gadag-Betgeri
Municipal Borrough, I1955] 1 SCR 1268, where after the
Judgment of the High Court and after grant of special leave
by this Court the legislation was passed, and it was applied
by this Court, ·Their Lordships, referring to King v.
D General Commissioner of Income Tax, I 1916] 2 KB 249 and
K. C. Mukherjee, Official Receiver v. Ramratan Kuer,
[1935] LR 63 IA 47: AIR 1936 PC 49 rejected the conten-
tion that unless there are express words in the amending
statute to the effect that the amendment shall apply to
pending proceedings, it cannct affect the proceedings. In
E Dayawati v. Inderjit, [1966] 3 SCR 275: AIR 1966 SC 1423
it has been held that the word 'suit' includes an appeal from
the judgment in the suit. The only difference between a suit
and an appeal is that an appeal only reviews and corrects
the proceedings in a cause already constituted but does not
create the cause. In Mohan/al Jain v. His Highness
F Maharaja Shri Sawai Man Singh, [1962] 1 SCR 702: AIR
1962 SC 73 it was observed that "A person is 'sued' not
only when the plaint is filed against him, but is 'soed' also
when the suit remained pending against him. The word
"sued' covers the entire proceeding in an action." In Amar-
jit Kaur v. Pritam Singh, [1975] 1 SCR 605 it has been held
G that an appeal is a re-hearing and in moulding relief to be
granted in a case on appeal. the appellate court is entitled
to take into account even facts and events which have come
into existence after the passing of the decree appealed
against."
H Mr. Sachhar refers us to Colonial Sugar Refining Co. v. Irving,
DARSHAN SINGH v. R.P. SINGH lSAIKJA, l.] 241
[1905] AC 369 at 372, wherein an application was made to the Judicial A
Committee to dismiss an appeal from the Judgment of the Supreme
Court of Queensland, on the ground that the power of the court below
to give leave to appeal had been abrogated by section 39 of the Austra-
lian Commonwealth Judiciary Act 1903. The action in which the
appeal was brought was commenced on October 25, 1902, the Judi-
ciary Act came into force on August 25, 1903 and the leave to appeal B
was given on September 4, 1903. The Judicial Committee dismissed
the application, Lord Machaghten saying; "As regards the general
principles applicable to the case there was no controversy. On the one
hand it was not disputed that if the matter in question be a matter of
procedure only, the petition (to dismiss) is well founded. On the other
hand, it' it he more than a matter of procedure, if it touches a right in
existence at the passing of the Judiciary Act, it was conceded that it
c
accordance with a long line of authorities from the time of Lord Coke
to the present day, the appellants (the Sugar Co.) would be entitled to
succeed. The Judiciary Act is not retrospective by express enactment
or by necessary intendment. And therefore the only question was
whether the appeal to his Majesty in Council a right vested in the D
appellants at the date of the passing of the Act, or was it a mere matter
of procedure? It was lield that to deprive a suitor in a pending action of
an appeal to a superior tribunal which belonged to him as of right is a
very different thing from regulating procedure." It was observed that
there was no difference between abolition of an appeal altogether and
transferring the appeal to a new tribunal.' In either case there was an E
interference with existing rights contrary to the well known general
principle that statutes are not to be held to act retrospectively unless a
clear intention to that effect was manifested. However, in that case the
right to contest itself was not taken away as in this case.
Mr. Sachhar then refers us to Garikapatti Veeraya v. N. Subqiah F
Choudhury, [1957] SCR 488. There the application for special leave to
appeal arose out of a suit instituted on April 22, 1949 and valued at
Rs.11,400. The trial court dismissed the suit and the High Court in
appeal reversed that deCision on February 10, 1955. Application for
.leave to appeal to. Supreme Court was refused by the High Court on
the ground that the value did not come upto Rs.20,000. It was con- G
tended on behalf of the appellant that he had a vested right of appeal
to the Federal Court under the law as it then stood and that court
having been substituted by the Supreme Court, he was as of right
entitled to appeal to that court under Article 135 of the Constitution.
This Court held that the contention of the applicant was well founded
that .he had a vested right of appeal to the Federal Court on and from H
242 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
the date of the. suit and the application for special leave should be
A
allowed. It was observed that the vested right of appeal was a substan-
tive right and it was governed by the law prevailing at the time of
commencement of the suit and comprised all successive rights of
appeal from court to court. which really constituted one proceeding.
Such a right could be taken away only by subsequent enactment either
B expressly or by necessary implication. The vested right of appeal in
that case was acquired under the old law as contemplated by under
Article 135 of the Constitution in relation to which the jurisdictional
power of the Federal Court were exercisable at the commencement of
the Constitution and as such it was within the purview of the appellate
jurisdiction of the Supreme Court, and the appeal was entertainable
by it. Article 135 could not be limited to such cases only where the
c right of appeal had actually arisen in a concrete form, not merely
potentiality immediately before the Constitution. At page 494 of the
report we find that the petitioner contended that as from the date of
the institution of the suit he acquired a vested right to appeal to the
Federai Court which had since been replaced by the Supreme Court.
t> This Court observed that this proposition of law has been firmly
established in English jurisprudence and this decision is accepted as
sound, and cited with approval in leading text books and had been
followed and applied in numerous decisions in England and India
including the Privy Council itself in Delhi Cloth and General Mills Co.
Ltd. v. Income Tax Commissioner, [1927] LR 54 IA 421: ILR 9 Lah.
E 284 and Colonial Sugar Refining Co. Ltd. v. Irving, (supra) in effect
laid down that, while provisions of a statute dealing merely with mat-
ters of procedure may properly, unless that construction be textually
inadmissible, have retrospective effect attributed to them, provisions
which touch a right in existence at the passing of the statute are not to
be ap(JJled f~troS(Jectfreliin the absence of express enactment or neces-
F sary intendment. It would be seen that these cases dealt with the
vested right of appeal and not the right for effectuation of which the
right to appeal was there. In the instance case, what was taken away
was the basic right to contest" alienation irrespective of whether it was
in a suit or an appeal.
G In Govind Das and Ors. v. The Income Tax Officer_ & Anr.,
(supra) and The United Provinces v. Mst. Atiga Begum & Ors.,
(supra), the Courts reiterated the above principle. The same principle
was also reiterated in Jose Da Costa and Anr. v. Bascora Sadasiva
Sinai Narcornim & Ors., (supra) in paragraph 31 at page 925 relying
on Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commis-
H sioner, (supra), Garikapatti Veeraya v. N. .Subbiah Choudhury,
DARSHAN SING.H v. RP. SINGH [SAIKIA, 1-] 243
( S-Upra} All the above cases are clearly distinguishable on facts jn- A
as much as no question of doing away with any statutorily Conffrined
custom arose in any of them.
''
We are of the view that the right to appeal involved in the above·
cases has to be distinguished from the right to contest involved in this
case. While the right to appeal implies the continuation of the right B
sought to be effectuated in the appeal, in the instant case the power to
contest itself constituted the custom which the legislature wanted to do
away with. Tll take away the power to contest means nothing else than
doing away with the custom itself. The right to contest wherever
needed, namely, at any stage of a suit is expressly barred.
Mr. Sachhar lastly telies on the decision in Henshall v. Porter c:
(supra). By Section 1 of the Gaming Act; 1922, no action under S. 2 of
the Gaming Act, 1935 to recover back money paid in respect of gaming
debts "shall be entertained in any court". The plaintiff, after the Act
of 1922 came into force, issued a writ in respect of cause of action
which had arisen before that Act came into force. It was held by the
King's Bench that the plaintiff's cause of action, vested in him before
the Act of 1922 came into force, was not divested on the Act coming
into force, and that he was entitled to recover. Relying on earlier
decisions, namely, Bowling v. Camp, [1922) W.N. 297; Beadling v.
Goll, [1922) 39 Times L.R. 128; Smithies v. National Association of
Operative Plasters, [1909) 1 K.B. 310 and Gillmore v. Shooter, [1677i 2 E
M,od. 310, it was held that the expressions "no action shall be brought"
and "no action shall be entertained" could not be said to have been
intended to divest a vested right and as such the words "no action shall
be brought" did not debar an existing claim as "it could not be pre-
sumed that the Act had a retrospect to take away an action to which
the plaintiff was then entitled." However, McCardie, J. observed that F
the whole legislation and law on betting and gaming was to a large
extent ambiguous in policy and obscure in its working and the general
drift of the statutes had been towards repression of betting and gaming
and the question of poli~y was for P<!rliament and not for the courts and
that it was a social rather than a legal question. The learned Judge
further observed: G
"I see no basis of policy which assists the interpretation of
the Act of 1922 with respect to the point before me. On the
other hand I think it sound and just in this case to apply the
long recognised and useful rule that vested rights are not to
be deemed destroyed by a statute unless the enacting words
are clear."
244 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
In the instant case, as we have seen, the express intention of the
A
legislature was to do away with the custom of contesting alienations
and negative expression has been used in the section and as such it is
clearly distinguishable from Hensall v. Porter;(supra).
Considering the above principles, the provisions of the Principal
B Act, the statement of objects and reasons and the provisions of the
Amendment Act and the decisions of the Punjab High Court and of
this Court, we are of the view that Section 7 of the Principal Act as
amended by the Amendment Act is retroactive and is applicable to
pending proceedings. The decisions of this Court dated 28.11.1986 in
Ujaggar Singh v. Dharam Singh, (Civil Appeal No. 1263 of 1973) and
in Udham Singh v. Tarsem Singh, (Civil Appeal No. 1135 of 1974) dated
c 15. 7 .1987 do not need reconsideration.
The result is that these appeals fail and are dismissed, but under
the facts and circumstances of the cases, without any order as to costs.
D In course of the arguments it transpired that some of the appel-
lants might have had right to contest the alienations under the Hindu
Law. Doubts have been expressed as to whether after these appeals
are dismissed any such claim would be tenable in law inasmuch as, it is
submitted, the right under the Principal Act was a statutory right
which has now been taken away. The answer to the question would
E depend on what resulted when the Punjab Laws Act and the Principal
Act were passed. There appears to be no doubt that by the former the
customs were preserved and by the latter the customary right to con-
test alienation was regulated. This would be clear from the following
analysis.
F In the matter ·of a custom in relation to law three different rela-
tions have to be distinguished. First, a custom may be only judicially
noticed. This belongs to the realm of evidence and validity of the
custom. Secondly, a custom may be legally confirmed, and regulated.
In this case the custom remains as custom law only confirming or
regulating it. Thirdly, a statute may be passed on basis of a custom in
G which case the custom is transformed into statutory right and there-
after it is not treated as a custom.
Austin in the Province of Jurisprudence Determined, Lecture V
(Page 163) discussing the meaning of the term law and laws proper or
properly so called and laws improper or improperly so called and the
H difference between positive law and positive .morality, and showing
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.] 245
that customary law is also a creature of the sovereign, said.
A
"For example: Customary Jaws are positive laws fashioned
by judicial legislation upon pre-existing customs. Now till
they become the grounds of judicial decisions upon cases,
and are clothed with legal sanctions by the sovereign one or
number, the customs ·are merely rules set by opinions of the B
governed, and sanctioned or enforced morally: Though,
when they become the reasons of judicial decisions upon
cases, and are clothed with legal sanctions by the sovereign
one or number, the customs are rules of positive law as well
as of positive morality." · ·
In his Lecture XXX Austin said: c
"The· 1aws or rules styled customary may be divided into
two classes: those which are enforced by the tribunals with-
out proof of their existence; and those which must be
proved, before the tribunals will enforce them. D
Laws or rules of the former class, are styled notorious. Or
it is said that the tribunals take judicial notice of them.
Those of the latter class require proof, like any other fact
on which the decision in the particular case depends."
E
According to Austin A custom becomes a customary law only
when it is clothed with the legal sanction in the judicial mode. A
custom becomes law only when enforced by the political sanction.
"Law styled customary law then is merely judicial law founded on
custom, and owes its existence as law, like every other law to the
sanction of sovereign authority." F
Luis Recasens Siches in 'Human Life, Society and Law' at page
111 wrote:
"The Problem of Customary Law. Perhaps someone may
believe at first sight that the existence of customary law, G
that is, of juridical customs, raises some difficulty with
regard to the difference between it and the rules of social
behaviour, from the fact that, similar to what is true of
them, it manifests itself by means of the usual forms of
collective behaviour. But, in truth, there is no difficulty
whatever, for customary Law is as much Law as is statu- H
246 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
tory; it has exactly the same essential meaning as the
A latter."
In Halsbury's Laws of England, 4th Ed. Vol. 12 Paragraph 443,
dealing with effect of confirmation of a custom by statute it is said:
B "Where an Act of Parliament has, according to its true
construction, embraced and confirmed a right which has
previously existed by custom, that right becomes hencefor-
ward a statutory right, and the lower title by custom is
merged in and extinguished by the higher title derived from
the Act of Parliament unless the Act of Parliament merely
intended to confirm the right as a custom. Where the
c custom has been so extinguished, the old rights do not
re-emerge on the repeal of the Act or, it seems, at the
termination of a temporary Act. It appears that the custom
would not be affected by the repeal of the Act if the Act
merely confirmed and recognised the custom"
D
However, the intention of the legislature and the provisions of
the statute have to be carefully examined to ascertain the result. "An
Act of Parliament which recognises the existence and validity of a
custom may not operate to create new statutory rights in favour of the
persons or classes of persons who might formerly have benefited by the
E custom. Such' a statute may merely have the effect of sanctioning the
validity of the custom as a custom, without merging the custom in the
higher title by statute."
In the instant case we are of the view that the custom was con-
firmed and regulated by the Punjab Laws Act and the Principal Act
F and it was done away with by the Amendment Act. No statute was
passed on the basis of the custom itself so as to transform the custom
itself into a higher statutory right. Therefore either before or after the
custom has been done away with by the Amendment Act, the rights of
the parties under Hindu Law remain unaffected and will provide the
rule of decision where alienations are contested under Hindu Jaw. It
G was observed by Robertson, J. in Daya Ram v. Sahel Singh and Ors.,
110 PR (1906) 390 that "in all cases under S. 5 of the Punjab Laws Act,
it lies upon the person asserting that he is ruled in regard to a particu-
lar matter by custom, to prove that he is so governed, and not by
personal law, and further to prove what the particular custom is. There
is no presumption created by the clause in favour of custom; on the
H contrary it is only when the custom is established that it is to be the
DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.] 247
rule of decision." These observations were approved by the Privy A
Council in Abdul Hussein Khan v. Bibi Sona Dero, [ 1917] LR. 45 I.A.
10(13). This was reiterated by this court in Salig Ram v. Munshi Ram,
[ 1962] 1 SCR 470 holding that "where the parties are Hindus, the
Hindu Law would apply in the first instance and whosoever asserts a
custom at variance with the Hindu Law, shall have to prove it
,,
As we find that in these appeals the cases of the appellants under
Hindu Law were not gone into by t~e Hig_h Court or lower courts, we
orderthe cases to be sent back torthwnh to the High Court anu mrect
the ,High Court to examine the cases of the willing appellants under
Hindu Law after hearing the parties and, if needed, giving them C
opportunity to adduce further necessary evidence. The willing appel-
lants may appear before the High Court for necessary instructions in
this regard. We order accordingly.
N.V.K. Appeals dismissed.
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