Ammal v. Ramalingam (Minor) & Anr., AIR 1970 SC 1730: [1970] 3 SCR 894; Commissioner of Wealth Tax, Kanpur & Ors. v. Chunder Sen & Ors., AIR 1986 SC 1753: [1986] 3 SCC 567; Yudhishter v. Ashok Kumar, AIR 1987 SC 558: [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) 1 Punjab 369; Banso v. Charan Singh, AIR 1961 Punjab 45; Kaur Singh v. Jaggar Singh, AIR 1961 Punjab 489 and Kalu v. Nand Singh, AIR 1974 P & H 50, referred to.
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 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 Amendment Act was the measure adopted. [234A-C] ï73 Bant Singh v. Gurpreet Singh, [1973] 75 PLR 797; Gurdial Singh v. Piara Singh, [1973] 13 Cur. L.J. 529; Charan Singh v. Gehl Singh, [1974] 76 PLR 125; Jit Singh v. Karnail Singh, [1975] 77 PLR 488; Surjit Kaur v. Zail Singh, [1977] 79 PLR 690; Raj Narain Pandey & Ors. v. Sant Prasad Tewari & Ors., [1973] 2 SCC 35 and Brownsea Haven Properties v. Poole Corpn., [1958] Ch. 574 (CA): (1958) 1 All E.R. 205, referred to. 10(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 the appeal, has to be taken into consideration. When a suit fried by a reversioner is dismissed and he files an appeal then before the appellate court also he is contesting the alienation. If he does not contest or challenge the alienation, then he cannot achieve success. [235B-C] Thakur Gokulchand v. Parvin Kumari, (supra); Garikapatti Veeraya L N. Subbian Choudhury, [1957] SCR 488; Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, [1976] 2 SCC 917; Govind Das v. The Income Tax Officer, [1976] 1 SCC 907; Henshail v. Porter, [1923] 2 L.R. King’s Bench Div. 193 and United Provinces v. Mst. Atiga Begum, [1940] 2 FCR 110, referred to. 10(b) Contest continues right up to the final decision. The right to contest comes to an end only when a final decision is given one way or the other putting an end to the litigation between the parties with regard to the alienation. [235A-B]
11.Every statute which 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. Retroactive statute means a statute which creates a new obligation on transaction or considerations already past or destroys or impairs vested rights. [236B] Halsbury’s Laws of England, 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 prior to 23.1.1973 does not necessarily mean its retrospective operation. [237A-B, E] ï73 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 Mithilesh Kumari & Anr. v. Prem Behari Khare, [1989] 2 SCC 95, referred to.
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 right to contest being contrary to custom has been totally effaced and taken away. Thus no person has any right to contest any alienation of immovable property whether 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 stage of first appeal or second appeal. [239F-G] Harbhajan Singh v. Mohan Singh & Ors., [1974] 2 SCC 364; Sadhu Singh & Anr. v. Dharam Der & Ors., [1981] 1 SCC 510; Official Liquidator v.R. Desikachar, AIR 1974 SC 2069: [1975] 1 SCR 890; Lakshmi Narayan Guin & Ors. v. Niranjan Modak, [1985] 1 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] 1 SCR 1268; King v. General Commissioner of Income Tax, [1916] 2 KB 249; K.C. Mukherjee, Official Receiver v. Ramratan Kuer, [1935] LR 631A 47: AIR 1936 PC 49; Dayawati v. Inderjit, [1966] 3 SCR 275: AIR 1966 SC 1423; Mohanlal Jain v. His Highness Maharaja Shri Sawai Man Singh, [1962] 1 SCR 702: AIR 1962 SC 73; Amarjit Kaur v. Pritam Singh, [1975] 1 SCR 605; 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 Lab. 284; Colonial Sugar Refining Co. Ltd. v. Irving, [1905] AC 369; Govind Das and Ors. v. The Income Tax Officer & Anr., [1976] 1 SCC 907; The United Provinces v. ï7 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 has to be distinguished 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 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] Henshall v. Porter, (supra); Bowling v. Camp, [1922] W.N. 297; Beadling v. Golf, [1922] 39 Times L.R. 128; Smithies v. National Association of Operative Plasterers, [1909] 1 K.B. 310 and Gillmore v. 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 Court, Section 7 of the Principal Act as amended by the Amendment Act is retroactive and is applicable to pending proceedings. The decision 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. [244B-C] 17(a) In the matter of a custom in relation to law three different relations have to be distinguished. First, a custom may be only judicially noticed. This belongs to the realm of evidence and validity of the custom. Secondly, a custom may be legally confirmed, and regulated. In this case the custom remains as custom law only confirming or regulating 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. ï73 Daya Ram v. Sohel 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] 1 SCR 470, referred to.
In the instant case, the custom was confirmed and regulated 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 under Hindu Law. [246F-G] 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 hearing the parties and, if needed, giving them an opportunity to adduce further necessary evidence. [247C]