KESAR SINGH AND ORS. versus SADHU

Citation: [1996] 1 S.C.R. 1017 · Decided: 29-01-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Appeal(s) allowed

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Judgment (excerpt)

-· 
KESAR SINGH AND ORS. 
v. 
SADHU 
JANUARY 29, 1996 
(K. RAMASWAMY AND G.B. PATIANAIK, JJ.) 
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 
A 
B 
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. 
I) 
From the Judgment and Order dated 30.1.92 of the Punjab & 
Haryana High Court in C.R. No. 330 of 1992. 
M.R. Sharma and Prem Malhotra for the Appellants. 
The following Order of the Court was delivered : 
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 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 
E 
F 
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. 
B 
c 
D 
E 
F 
G 
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 
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 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 
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". 
H 
In the instant case we are of the view that the custom was con-
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• 
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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 
and will provide the rule of decision where alienations are con-
te

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