1996 (1) TMI 457 - SC - Indian Laws

Summary

Issues involved:
The issues involved in the judgment include the effect of an Amendment Act on customary rights, the applicability of Hindu Law in cases of alienation, and the right to contest alienations under statutory provisions.

Effect of Amendment Act on Customary Rights:
The Supreme Court considered the effect of the Amendment Act 1973 on the customary right of the Punjab Custom (Power to Contest) Act, 1920. It was held that the Amendment Act is retrospective and applicable to pending proceedings. The court referred to previous decisions and concluded that the right under the Principal Act was a statutory right which has now been taken away by the Amendment Act.

Applicability of Hindu Law:
During the arguments, it was revealed that some appellants might have had the right to contest alienations under Hindu Law. The court discussed the preservation of customs by the Punjab Laws Act and the regulation of customary rights under the Principal Act. It was emphasized that the rights of the parties under Hindu Law remain unaffected even after the custom has been done away with by the Amendment Act. The court cited previous judgments to support the application of Hindu Law in cases of alienation.

Right to Contest Alienations under Statutory Provisions:
The court held that the appellant is entitled to raise the executability of the decree in execution, as the Amendment Act was applicable at the time of passing the decree by the appellate Court. It was emphasized that when a matter goes to the root of jurisdiction, it can be raised even in execution. Therefore, the High Court was not correct in rejecting the revision of the appellants on the grounds that they are not entitled to raise the plea of nullity. The appeal was allowed, the orders of the lower courts were set aside, and the execution petition was dismissed.