Holding

The amendment is retrospective; the decree is a nullity; the appeal is allowed and the execution petition dismissed.

Summary

The respondents filed a suit in 1978 to recover possession of land based on a 1924 declaratory decree that arose from a customary right to contest alienation under the Punjab Custom (Power to Contest) Act, 1921. The appellants, who had purchased the land, challenged the decree, arguing that the 1973 Amendment Act had abolished the statutory right to contest, rendering the decree a nullity. The trial court dismissed the suit, the appellate court reversed, and the second appeal was dismissed; the execution proceedings were then contested on the ground of nullity. The Supreme Court, relying on Darshan Singh v. Ram Pal Singh, held that Section 7 of the Act, as amended, is retrospective and applies to pending proceedings, making the decree void. Consequently, the Court allowed the appeal, set aside the lower courts' orders, and dismissed the execution petition.

Issues considered

Whether the 1973 Amendment to the Punjab Custom (Power to Contest) Act, 1921 is retrospective and applies to pending proceedings.
Whether a decree passed after the amendment but based on the pre‑amendment statutory right is a nullity.
Whether the nullity of a decree can be raised during execution proceedings.

Subjects

Punjab Custom (Power to Contest) ActAmendment Act 1973Retrospective legislationDecree nullityExecution proceedingsHindu lawCustomary rightCivil appeal

Judgment

KESAR SINGH AND ORS. A
v.
SADHU

JANUARY 29, 1996

(K. RAMASWAMY AND G.B. PATIANAIK, JJ.) B

Punjab Custom (Power to contest) Act, 1921>-A.mendment Act of
1973--S. 7-Executabi/ity of the decree in execution when thtJ matter goes to
the root of the jurisdictio..-Held, since the Amendment Act was applicable
at the time of passing the decree by the appellate court, the decree was a C
nullity.

Darshan Singh v. Ram Pal Singh, AIR (1991) SC 1654, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3191 of

-· 1996.

From the Judgment and Order dated 30.1.92 of the Punjab &
Haryana High Court in C.R. No. 330 of 1992.
I)

M.R. Sharma and Prem Malhotra for the Appellants.
E
The following Order of the Court was delivered :

Leave granted.

Substitution allowed.
F
Though the respondent has been served, he is not appearing either
in person or through counsel. We have heard the counsel for the appel-
lants. 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 G
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, dismiss-
al 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 H
1017
1018 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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 dis-
missed the revision. Thus this appeal by special leave.

The controversy is no longer res integra. This Court in Da1Jhan Singh
v. Ram Pal Singh, AIR (1991) SC 1654 considered the effect of the
B 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
c of this Court, we are of the view that S.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. Dhanna Singh, Civil Appeal No. 1263 of
1973 and in Udlzam Singh v. Ta1~em Singh, Civil Appeal No. 1135
D 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,
E 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
F 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
G 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". •
H In the instant case we are of the view that the custom was con-
KESAR SINGH v. SADHU 1019

firmed and regulated by the Punjab Laws Act and the Principal A
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
B
and will provide the rule of decision where alienations are con-
tested under Hindu Law. It was observed by Robertson, J. in Daya
Ram v. Sahel Singh, 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 particular matter by custom, to prove that
he is so governed, and not by personal law, and further to prove c
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 D
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... ....... "
E
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
F
law that it can be raised even in execution also. lJnder 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.
G
\ Accordingly, the appeal is allowed. The orders of the courts below
are set aside. Consequently, the execution petition also stands dismissed.
No costs.

G.N. Appeal allowed.