PETITIONER:
KESAR SINGH & ORS.
Vs.
RESPONDENT:
SADHU
DATE OF JUDGMENT: 29/01/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (2) 334 1996 SCALE (2)177
ACT
HEADNOTE
JUDGMENT
ORDER
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.