# DARSHAN SINGH AND ANR. ETC. ETC v. RAM PAL SINGH AND ANR. ETC. ETC

- **Citation:** [1990] Supp. 3 S.C.R. 212
- **Court:** Supreme Court of India
- **Decided:** 1990-11-20
- **Case number:** Civil Appeal No. 248 of 1974
- **Bench:** T.K. Thommen, K.N. Saikia, N.M. Kasliwal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/darshan-singh-and-anr-etc-etc-v-ram-pal-singh-and-anr-etc-etc-10920
- **Pages:** 36

## Headnote

Punjab Custom (Power to Contest) Act, 1920: Section 7Alienations of immovable property-Contesting of~Effect of Punjab
Custom (Power to Contest) Amendment Act, 1973-Whether retrospective 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 /awE
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
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Punjab Custom (Power to Contest) Amendment Act, 1973 came into
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force on the 23rd day of January, 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.
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
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
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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.
The m~in contentions of the appellants in the appeals were that
neither by express words nor by necessary implication the 1973 Amendment 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,
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 Amendment Act 1973 so as to include both ancestral and non-ancestral inunovable 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 applicable to pending proceedings, the High Court has rightly dismissed
the appeals.
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]
(b) A custom prevailed in Punjab that ancestral immovable property 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
collaterals. [223G-H]
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SUPREME COURT REPORTS
[1990

## Text

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DARSHAN SINGH AND ANR. ETC. ETC.
V.
RAM PAL SINGH AND ANR. ETC. ETC.
NOVEMBER 20, 1990
[T.K. THOMMEN, K.N. SAIKIA AND N.M. KASLIWAL, J.J.]
Punjab Custom (Power to Contest) Act, 1920: Section 7Alienations of immovable property-Contesting of~Effect of Punjab
Custom (Power to Contest) Amendment Act, 1973-Whether retrospective 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 /awE
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
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Punjab Custom (Power to Contest) Amendment Act, 1973 came into
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force on the 23rd day of January, 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.
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
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.
The m~in contentions of the appellants in the appeals were that
neither by express words nor by necessary implication the 1973 Amendment 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,
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 Amendment Act 1973 so as to include both ancestral and non-ancestral inunovable 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 applicable to pending proceedings, the High Court has rightly dismissed
the appeals.
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]
(b) A custom prevailed in Punjab that ancestral immovable property 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
collaterals. [223G-H]
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SUPREME COURT REPORTS
[1990] Supp. 3 S.C.R.
(c) The degrees of collaterals eligible to contest an alienation on
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]
(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
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
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
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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
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(Repeal) Act, 1973 by Section 2 repealed the Punjab Pre-emption Act,
1913. [2268-D]
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(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]
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
.,
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DARSHAN SINGH v. R.P. SINGH
215
appointment of an heir to such property on the ground that such alienaA
tion or appointment was contrary to custom. [227F]
The provisions of Section 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 ground such alienaB
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 continued 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]
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6. If the provisions of an Act of.Parliament are repugnant to the
continued existence of the custom, the custom will be treated as abrogated 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 E
away with the custom, and the negative provision of Section 7 of the
Amendment Act, the view is that continuance of the custom is inconsistent with the statute. [231C-D]
Halsbury's Law of England, Vol. 12 Para 442 relied on.
7. Consuetudo semel reprobata non po test amplius induci. A
custom once disallowed cannot be again brought forward. [231E]
8. Section 4 of the Hindu Succession Act 1956 provides overridF
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
succession hitherto applicale to the parties, by virtue of any text, rule or
interpretation of Hindu Law or any custom or usage having the force of
law ceased to have effect in respect of the matters expressly dealt with
by the Act. [232F-233D]
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SUPREME COURT REPORTS
[1990] Supp. 3 S.C.R .
S.S. Munna Lal v. S.S. Rajkumar & Ors, AIR 1962 SC 1493:
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
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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.
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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 Succession Act does not appear to have abrogated any rule or customary law
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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
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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.
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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
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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·
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raya v. N. Subbian Choudhury, [1957] SCR 488; Jose Da Costa v.
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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
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
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.
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 necessarily mean its retrospective operation. [237 A-B, E]
Craies on Statute Law, 7th Edn. page 389 referred to.
Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives & Ors., [1964] 6 SCR 876; Athlumney Ex Parte Wilson,
[1898] 2 Q.B.D. 547 and Mithi/esh Kumari & Anr. v. Prem Behari
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Khare, [1989j 2 SCC 95, referred to.
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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]
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
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SUPREME COURT REPORTS
[ 1990] Supp. 3 S.C.R.
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 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
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stage of first appeal or second appeal. [239F -G]
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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
Yograj Sinha, [1962] 2 SCR 159; Lachmeshwar Prasad Shukul v. Keshwar Lal, AIR 1941 FC 51: 1940 FCR 84; Shyabuddinsab v. GadagBetgeri Municipal Borrough, [1955] l SCR 1268; King v. General Commissioner of Income Tax, [1916] 2 KB 249; K. C. Mukherjee, Official
Receiver v. Ramratan Kuer, [1935) LR 63 IA 47: AIR 1936 PC 49;
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]
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
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
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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;
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Beadling v. Goll, [1922] 39 Times L.R. 128; Smithies v. National
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DARSHAN SINGH v. R.P. SINGH
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Association of Operative Plasterers, [1909] 1 K.B. 310 and Gillmore v.
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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
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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 reconsideration. [244B-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
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]
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
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
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]
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SUPREME COURT REPORTS
[ 1990] Supp. 3 S.C.R.
[As the cases of the appellants under Hindu Law were not gone
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 appellants under Hindu Law after bearing the parties and, if needed, giving
them an opportunity to adduce further necessary evidence. [247C)
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.
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.
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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.
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The Judgment of the Court was delivered by
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
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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.
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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
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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
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 dismissed 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.
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:
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"In view of section 7 of the Punjab Custom (Power to
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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 retrospective effect and that it also applies to pending proceedings."
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:
"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."
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:·
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"Our attention is drawn to the view taken by this Court in
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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-
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s. (2) of s. 1 of the Amendment Act which provides that the
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 nonancestral affects substantive rights of the parties. When the
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 reconsideration.
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
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.
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
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 dismissed 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
force of law in the Punjab and for other purposes. Its preamble said:
"Whereas certain rules, laws and regulations made heretofore 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
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:
"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 institution, 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
competent authority;
(b) the Mohammedan law, in cases where the parties
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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
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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:
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"59. Ancestral immovable property 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 collaterals. 'Provided' that a proH
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prietor can alienate ancestral immovable property at pleasure 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
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 contested 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
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 according 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 alienation 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:
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"Nothing in this Act shall apply to any alienation or
appointment of an heir made by a female."
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
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DARSHAN SINGH v. R.P. SINGH [SAIKIA, J.I
225
contained in section 5, Punjab Laws Act, 1872, no person
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shall contest any alienation of ancestral immovable property 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 descent from the great-great-grandfather of the person making
the alienation or appointment."
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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
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Laws Act, 1872, no person shall contest any alienation of
non-ancestral immovable property or any appointment of
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
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 immovH
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able property ordinarily inalienable except for legal necessity 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
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."
(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 Government Gazette Extraordinary dated April 9, 1973. As provided in S. 1 it
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:
7. 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
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
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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 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
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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
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 alienations 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
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.
A
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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 appointment 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 alienation .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
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Pre-emption (Repeal) Act, 1973, no Court shall pass 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
(Repeal) Act, 1973 no court shall pass a decree in any suit for preemption. 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 Amendment Act similarly had the object and purpose of doing away with the
custom of contesting alienation. That was sought to be achieved firstly
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
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:
"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."
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?
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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
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.