Gurdial Singh, Etc. v. Piara Singh, Etc.

C.G. Suri, J. - Regular Second Appeals Nos. 182, 1095 and 1102 of 1963 are being disposed of together by this judgment as they involve a common question of law as to what effect the Punjab Custom (Power to Contest) Amendment Act, 1973 (Punjab Act No. 12 of 1973) hereinafter briefly referred to as 'the Amending Act' has on pending cases where a reversioner has challenged an alienation under the Punjab Customary Law on the usual grounds that the property alienated was ancestral qua him and that the alienation was without consideration and necessarily and shall not affect his reversionary rights after the lifetime of the alienor. 2. In R.S.A. No. 182 of 1963, the reversioners are the appellants as their suit has been dismissed by the Courts below on the findings, inter alia, that the property alienated was not proved to be ancestral qua the plaintiffs. In the other two appeals, sales of property have been successfully challenged by the son(s) of the vendor so that the vendees are the appellants in this Court. In one case, the plaintiff has been held liable to pay, when he sees possession of the land after his father's death, a part of the sale price, which was found to be for a valid necessity. These are, however, matters which do not in any way affect the question of law that has been argued before me at this stage. 3. By Section 4 of the Amending Act, an amending ordinance of the same name (Punjab Ordinance No. 2 of 1973) has been repealed. No specific provision has been made in the Amending Act for saving the pending proceedings. Sub-section (2) of Section 1 says that the Amending Act shall be deemed to have come into force on the 23rd day of January, 1973. It had received the assent of the Governor of Punjab on 6th April, 1973 and had been published in the Official Gazette (Extraordinary) dated 9th April, 1973. There is no indication as to how the Legislature hit upon the odd date mentioned in Section 1(2) but this date coincides with the coming into force of the repealed Ordinance. If the Legislature had selected the auspicious New Year's day of the year of grade 1973 A.D. or some other date having a rational nexus with the scheme of the Act or its objects and purposes, then there might have been some force in the argument advanced by the counsel for the reversioners that the Act was intended to have retrospective effect only up to that date ad no farther back in the past. The provisions and the title of the Principal and the Amending Acts may suggest that the original idea was to place some restrictions on the reversioner's power to contest such alienations under the Customary Law. Before the Principal Act was enacted in 1920, the remotest reversioners could challenge such alienations made by male or female proprietors under the Punjab Laws Act, 1872. Section 6 of the Principal Act restricted the powers of contesting such alienations made by male proprietors to Principal Act, however, said that the Act was not to affect any right to contest any alienation of appointment of a heir made before the date on which the Principal Act (Punjab Act II of 1920) came into force. 4. The Punjab Ordinance No. 2 of 1973 had simply omitted section 6 of the principal act. The intention appears to have been to abolish the reversioner's power to contest such alienations but the omission of section 6 from the principal act had just the opposite effect of conferring power to contest such alienation on all reversioners, however remote may have been their degree of relationship with the alienor. The provision in the repealed Ordinance omitting section 6 of the principal act has been left intact in the Amending Act but the desired objective has been achieved by carrying out certain amendments in section 7 of the principal act. Whereas originally this section provided that notwithstanding anything to the contrary contained in Section 5 of the Punjab Laws Act, 1872, no person shall contest an alienation of non-ancestral immovable property, the amendments now carried out say that the bar as to any person contesting any alienations of immovable property shall apply irrespective of whether that property was ancestral or non-ancestral in character. 5. In Pandit Ram Parkash v. Shrimati Savitri Devi, AIR 1958 Punjab 87, a Full Bench of this Court had observed as follows :- "The question whether a statute operates prospectively or retrospectively is one legislative intent. If the terms of a statute are clear and unambiguous and it is manifest that the Legislature intended the Act to operate retrospectively, it must unquestionably be so construed. If, however, the terms of a statute do not themselves make the intention certain or clear, the statute will be presumed to operate prospectively where it is in derogation of a common law right, or where the effect of giving it a retrospective operation would be to interfere with an existing contract, destroy a vested right or create a new liability in connection with a past transaction or invalidate a defence which was good when the statute was passed. The statute would operate retrospectively when the intent that it should so operate clearly appears from a consideration of the Act as a whole or from the terms thereof which unqualifiedly give the statute a retrospective operation or imperative require such a construction or negative the idea that it is to apply only to future cases. If the Court is in doubt whether the statute was intended to operate retrospectively, it should resolve the doubt against such operation". 6. In Shri Ram Narain v. Simla Banking & Industrial Co. Limited., AIR 1956 S.C. 614, the Hon'ble Judges were against imputing to the amendments retrospective operation but it was emphasised that the amendment could have retrospective effect if the language of the Amending Act expressly or by necessary implication justified that conclusion. The intentions of the Legislature in making the amendments have, therefore, to be looked into. After the operative amendments, section 7 of the principal act now stands as follows :- "Notwithstanding anything to the contrary contained in Section 5 Punjab Law 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". 7. The fact that the date mentioned in Sub-section (2) of Section 1 of the Amending Act coincides with the date of the coming into force of the repealed ordinance leads in my opinion, to the one and only conclusion that the intention of the legislature was to achieve by the Amending Act the purpose that it had sought to achieve by the repealed Ordinance but which it had failed to achieve because of a defect in the drafting of the Ordinance. By a legal fiction, the Legislature wanted to hold on to an aft-lock of the personification of time even though mythology has it that time only has a forelock but then a legal fiction can enable the Legislature to achieve certain magical results. The idea was to obliterate all traces of the discomifiture, brought about by the defective drafting of the Ordinance, by allowing the Amending Act to come into operation on the date on which the repealed Ordinance had been declared to come into effect. The legal fiction or the deeming provision in Section 1(2) of the Amending Act is obviously intended to make us believe that the Ordinance had never been enacted and that the Amending Act was there all the time since the date mentioned in the said sub-section. As a first step, therefore, we have to incorporate in the Principal Act the amendments and then to proceed on the assumption that these amendments had been made in the Principal Act on 23rd January, 1973. We have thereafter to try to fathrom the intendment of the Legislature as to whether these amendments were to have retrospective effect and if so, how far back in the past we could go to find the limits to this intended retrospectively, section 4 of the principal act may seem to give us one of these limits. It is difficult to accept Shri Gupta's argument that for more than fifty years, the words 'this Act' in Section 4 of the Principal Act referred to Punjab Act II of 1920 and that after 1973, these words were to be taken to refer to the Amending Act. This argument would have been absolutely untenable if it has been advanced during the period of a few months when Ordinance No. 2 of 1973 had held the field. 8. 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 up to 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 continuation 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 retrospectively or prospectively 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. 9. If it was the case of the reversioners that the contest comes to an end with the filing of the suit then it could be said that the bar created by the amendments cannot operate retrospectively to preclude the filing of a suit which had already been filed before the amendments came into force. If the contest continues even after the filing of the suit, the bar would become operative at once and would preclude any further contest as regards the validity of the alienation. To my mind, the contest in fact starts with the filing of the suit and continues right up to the final hearing. An appeal is a continuation of the hearing of the suit and the decrees granted by the Courts below are thrown into melting pot and get merged into the judgment and decree of the final Court of appeal. The hearing in the appeal is as good a hearing at the trial stage because the whole controversy has been thrown open again by the filing of the appeal. The appellate Court has to take into account all changes in the law that have taken place during the pendency of the appeal. In this connection, the counsel for the vendees have relied on Lachmeshwar Prasad Saukal and others v. Kehswar Lal Chaudhuri and others, AIR 1941 Federal Court 5, Surinder Kumar and others v. Gian Chand and others, AIR 1957 S.C 875 and Ram Sarup and others v. Munshi and others, AIR 1963 S.C. 553. Some of these cases deal with the amendments of the Punjab Pre-emption Act by Punjab Act No. 10 of 1960. Section 31 of that Amending Act contained a prohibition to the passing of a pre-emption decree on certain grounds which were available to the plaintiff before the coming into force of the said Amending Act. The language of Section 31 of that Amending Act suggested that the changes in the law could be taken into account right upto the date of the passing of the pre-emption decree. It is true that the provision of law that had come in for construction in those cases was different and showed an intention that the amendments were different and showed an intention that the amendments were to have retrospective operation on all pending proceedings in which decrees were yet to be passed whether at the trial or at appellate stage. The bar created to the reversioner's power to contest an alienation may appear to be operative right up to the time that the contest between the parties continues. There is a contest or controversy wherever or whenever we have contending parties pulling in opposite directions. As long as this contest or tug of war continues, the cut imposed by the Amending Act can be applied and the contest can be put an end to. The intention of the Legislature was, therefore, clearly to give retrospective effect to the amendments made in Section 7 of the Principal Act by Section 3 of the Amending Act and these amendments would affect all pending proceedings. It makes no difference whether the proceeding is at the trial stage or at the stage of first of second appeal. In am fortified in my view by a ruling of another Single Bench of this Court in Nand Singh v. Roop Kaur, Regular Second Appeal No. 855 of 1963, decided on 26th April, 1973. 10. For reasons given above, R.S.A. No. 182 of 1963 filed by the reversioners is dismissed. R.S.A. Nos. 1095 and 1102 of 1963 are accepted and the suits filed by the plaintiff-respondents are dismissed leaving the parties to bear their own costs throughout. On an oral request of the counsel for the reversioners, permission is granted for the filing of an appeal under Clause X of the Letters Patent. Appeal dismissed.