Kesar
Singh & Ors Vs. Sadhu [1996] INSC 145 (29 January 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (2) 334 1996 SCALE (2)177
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Substitution
allowed.
Though
the respondent has been served, he is not appearing either in person or through
counsel. We have heard the counsel for the appellants. The respondent filed a
suit in 1978 for recovery of possession of the land from the appellants on the
basis of a declaratory decree obtained by one Nathu in the year 1924 as a
collateral on the basis of the custom. It is their case that the appellant had
purchased the property from Rulia who is an alienator to Nathu and under the
custom he was the nearest collateral and this alienation was not supported by
consideration. On appeal, dismissal of the suit by trial Court met reveral. The
Second Appeal was dismissed in RSA No.2416/79. In execution the appellant took
the plea that since the customary right had been taken away by an amendment
made later, the decree passed by the trial Court is a nullity. That application
was negatived and in the impugned order dated January 30, 1992 the High Court dismissed the revision. Thus this appeal by
special leave.
The
controversy is no longer res inteqra. This Court in Darshan Singh vs. t Sin Pal
[AIR 1991 SC 1654] considered the effect of the Amendment Act 1973 on the
customary right of the Punjab Custom (Power to Contest) Act, 1920 and held that
:
"Considering
the above principles, the provisions of the Principal Act, the statement of
object 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 5.7 of the
Principal Act as amended by the Amendment Act is retrospective 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 15-7-1987 do not need reconsideration.
In
course of the arguments it transpired that some of the appellants 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 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 contest alienation was regulated. This would be
clear from the following analysis.
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 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 confirmed and regulated by
the Punjab Laws Act and the Principal Act 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 anci will provide the
rule of decision where alienations are contested under Hindu Law. It was
observed by Robertson, J. in Daya Ram v. Sohel Singh, 110 PR (1906) 390 that
"in all cases under
5.5 of
the Punjab Laws Act, it lies upon the person asserting that he is ruled in
regard to a particular 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 contrary it
is only when the custom is established that it is to be the rule of
decision." These observations were approved by the privy Council in Abdul
Hussein Khan v. Bibi Sona Dero (1917) 45 Ind Ap 10(13):(AIR 1917 PC 181 at
p.183).
This
was reiterated by this Court in Salig Ram v. Munshi Ram (1962) 1 SCR 470: (AIR
1961 SC 1374) 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...... " In view of the above
position, the view of the learned judge that the appellant is not entitled to
raise the executability of the decree in execution is not correct since the
Amendment Act was applicable at the time of passing the decree by the appellate
Court and the above decree, therefore, is nullity. When the matter goes to the
root of the jurisdiction, it is settled law that it can be raised even in
execution also. Under those circumstances, the High Court was not right in
rejecting the revision of the appellants stating that they are not entitled to
raise the plea of nullity. In this view of settled legal position, it does not
serve any purpose to remand the matter to the executing court for fresh orders.
Accordingly,
the appeal is allowed. The orders of the courts below are set aside.
Consequently, the execution petition also stands dismissed. No costs.
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