Bant Singh and another vs Gurpreet Singh and others

Bal Raj Tuli, J.—Gurbux Singh, a Jat Gill of Fatehgarh, alienated 88 bighas 7 Biswas of his agricultural land for Rs. 11,000/- in favour of Bant Singh and his wife Smt Rattan Kaur by means of a sale deed dated November 15, 1954 His grandsons Gurprit Singh and Gurbinder Singh filed a suit for a declaration that the said sale was without consideration and necessity, illegal and void and would not effect their reversionary rights. This suit, which was filed on August 23, 1961, was dismissed by the learned trial Court on November 30, 1962, after trial. The plaintiffs went up in appeal which was accepted by the learned Additional District Judge, Faridkot, on May 1, 1963, and a decree was passed in favour of the plaintiffs declaring that the sale in question would not be effective against their reversionary rights on the death of the alienor. Against that decree, the alienees have filed the present appeal.

The Punjab Legislature enacted the Punjab Custom (Power to Contest) Amendment Act, 1973, which came into force on January 23, 1973, the date on which a similar Ordinace had been promulgated. This Act has repealed section of the Punjab Custom (Power to Contest) Act, 1920, and has amended section 7 thereof by substituting the words "immovable property, whether ancestral or non-ancestral" in place of the words "non-ancestral immovable property". As a result of this amendment, section 7, of the Punjab Custom (Power to Contest) Act, 1920, reads as under :--

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 that such alienation or appointment is contrary to custom.

The question that has been raised by Mr. Jawanda, the learned counsel for the appellants, is that by virtue of the amended section 7, the right to contest the alienation made by Gurbux Singh has been taken away and the plaintiff-respondents are no more to be granted a decree to the effect that the alienation made by Gurbux Singh would not affect their reversionary rights. For this submission, he relies on the judgment of Suri. J.; in Gurdyal Singh etc. v. Piara Singh etc. 1973 Cur. L.J. 529, which supports him fully. The learned Judge has dealt with the matter from various angles. The relevant observations read as under:--

The phrase ''no person shall contest'' in section 7 of the Principal Act may then seem to give us an indication as to the intendments of the Legislature as regards the other limits of time upto which the amendments could be made applicable. The bar created by the cited phrase is not only to the initiation of the contest by the act of the filing of a suit by the reversioners but also to the continua ion by the reversioners of the contest by pursuing the proceedings at all later stages. The axe on the contest falls as soon as the amendments take effect and all further progress in the proceedings comes to a dead halt because the reversioner''s power to contest the alienation, which was the motive force behind the proceedings, is withdrawn or is taken away. The limits to the retrospectivity or prospectivity of the law placing restrictions on the reversioner''s powers to contest such alienations have, therefore, been determined not only by the Amending Act but by sections 4, 6 and 7 of the Principal Act, as amended from time to time.

With respect, I find my self in full agreement with these observations. Their Lordships of the Supreme Court, in Ram Sarup Vs. Munshi and Others, held in para 28 of the report that--

(1) section 31, even according to the respondent, has to be given effect to, not merely by a trial Court but also by an appellate Court,

(2) the nature of an appeal under the Indian procedural law is that of a rehearing, and

(3) a Court of appeal, being not a Court of error merely, the finality attaching to the decree appealed against disappears, and even when an appellate court dismisses an appeal, it passes a decree.

It is evident from this dictum of their Lordships that even if this Court was to dismiss the appeal of the alienees, it would be passing a decree in favour of the reversioners and thus allowing them to contest the alienation after the coming into force of the amended section 7, which has been prohibited by the Amendment Act. This mater was also considered by a Division Bench of this Court in Shmt. Harbans Kaur v. Sardara Singh and others 1973 P.L.J. 506 decided on May 2, 1973, which concerned the applicability of the Punjab Pre emption (Repeal) Act, 1973, to the pending appeals by the pre-emptors and the vendees and it was decided that the appeals of the vendees had to be accepted and those of the pre-emptors dismissed. That judgment fully supports the view taken by Suri J., and the submission made by the learned counsel for the appellants.

In reply, Shri J.N. Kaushal, Senior Advocate, for the respondents, has submitted that section 4 of the Punjab Custom (Power to Contest) Act, 1920, has not been considered by Shri, J., and that that section saves the alienations made before the Amendment Act. That section reads as under:--

This Act shall not affect any right to contest any alienation or appointment of an heir made before the date on which this Act comes into force.

That Act admittedly came into force on May 28, 1920, when it was first published in the Punjab Gazette. In my opinion, this section only refers to the original Act of 1920 and not to that Act as amended in 1973. The learned counsel, however, relies on the judgment of their Lordships of the Supreme Court in Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others, in support of his submission that the words "This Act" in section 4 of the 1920 Act should be read as "the Act of 1920 as amended by the 1973 Act" and so read, it follows that all alienations made before the amending Act, came into force have been excepted I regret, I am unable to agree with the learned counsel. The case before their Lordships concerned Preventive Detention Act, 1950. That Act was originally to expire on April, 1951, and by an amending Act its life was prolonged to April 1, 1952. By Sull another amending Act its life was prolonged to October 1, 1952. The question arose whether the detention orders also got extended till the expiry of the Act on October 1, 1952 or till the expiry of the Act one April 1, 1952. In the amending Act there was section 3 regarding the validity and duration of detention in certain cases and after setting out that section their Lordships made the following observations:--

The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to in corporate itself or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England : see Craies on Statute Law, 5th Edition, page 207; it is the law in America: see Crawford on Statutory Construction, pags 110; it is the law which the Privy Council applied to India in Keshoram Poddar v. Nundo Lal Mallick 54 Ind. App. 152 (P.C.) bearing this in mind, it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed and section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by section 2, that is to say, the Act of 1950 now due to expire on the 1st of October, 1952.

Applying the law as enunciated by their Lordships, we have to read the 1920 Act today by incorporating therein the amendments made by the amending Act of 1973. So read, section 6 will be omitted and section 7, as set out above, will be read in place of the previous section. No. change can or is to be effected in section 4. Section 4 clearly saves the alienations which had been made prior to the coming into force of the 1920 Act. The same cannot be said of the amending Act. "This Act" in section 4 means the 1920 Act and not the Amendment Act of 1973 or the Act of 1920 as amended by the Amendment Act of 1973, as submitted by the learned counsel. This phrase continues to mean "The Punjab Custom (Power to Contest) Act, 1920" as originally enacted. If the Legislature Intended what the learned counsel submits, it would have amended section 4 or made a similar provision in the Amending Act. That not having been done, I find no merit in the submission of the learned counsel and repel the same.

The learned counsel then submits that the Punjab Legislature passed the Punjab Custom (Power to Contest) Amendment Act, 1973, and the Punjab Preemption (Repeal) Act, 1973, on the same date and different language was used in the sections. In the Punjab Pre-emption (Repeal) Act, it was enacted that on an from the date of commencement of the said Act no Court shall pass a decree in any suit for pre emption. No such language was used in any section of the Punjab Custom (Power to Contest) Amendment Act, 1973. Section 7 of the 1920 Act was amended by substituting the words "immovable property whether ancestral or non-ancestral" in place of the words "non-ancestral immovable property" and reading the section as amended, its language clearly leads to the conclusion that no reversioner is permitted to contest an alienation of immovable property, whether ancestral or non-ancestral, after the coming into force of the Amending Act. It has nothing to do with the date of the alienation. It concerts itself with the power to contest an alienation. That power cannot be allowed to be exercised after the amendment of section 7 by the Amending Act. It is a well-established principle of law that 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 SO that the appellate decree is in conformity with the law as existing on the date it is passed. As 1 have said above, if I were to dismiss the appeal of the alienees today, I would be permitting the reversioners to contest the alienation by affirming the decree in their favour passed by the lower appellate Court which is not permissible according to the language of section 7. I, therefore, find no force in this submission of the learned counsel either.

In this view of the matter, I am not deciding the appeal on merits.

For the reasons given above, this appeal is accepted, the decree under appeal is set aside and the suit of the plaintiffs is dismissed. The parties are left to bear their own costs throughout as the appeal is being disposed of on the basis of change in law effected during the pendency of this appeal and not on merits. On the oral request of Shri Kaushal, I grant permission to file an appeal under clause 10 of the Letter Patent.