Nirshi Dhobin & Ors Vs. Dr. Sudhir
Kumar Mukherji & Ors  INSC 168 (30 July 1968)
30/07/1968 HEGDE, K.S.
CITATION: 1969 AIR 864 1969 SCR (1) 469
Stare decisis--Long line of judgments of
courts taking a certain view --Different view, even if correct, should not be
taken where titles and transactions based on the settled view would be
Bihar Tenancy Act and Transfer of Property
117--Lease of agricultural land including
homestead-- Sub- lease of homestead by original lessee whether an agricultural
lease governed by the Tenancy Act or a non- agricultural lease governed by the
Transfer of Property Act.
C was the lessee of a plot which consisted of
agricultural land as well as a homestead. The homestead was later leased to the
appellants. The respondents purchased the rights of C and brought a suit
against the appellants for possession of the homestead. The contention of the
appellants in defence was that the suit had not been brought according to the
provisions of the Bihar Tenancy Act and hence was not maintainable. The
contention of the respondents was that the lease of the homestead was not an
agricultural lease within the meaning of s. 117 of the Transfer of Property Act
and was invalid under the provisions of the latter Act. The trial court decreed
the suit. The first appellate court however dismissed it. In doing so it relied
on earlier rulings of the Patna and Calcutta High Courts which had held the
field for over 55 years, to the effect that if the main lease is a lease for
agricultural purposes all sub-leases of portions of that leasehold should also
be considered as agricultural leases despite the fact that a particular lease
may he that of a homestead only. The High Court in further appeal departed from
the view taken in the earlier cases and decided against the appellants, who
came to this Court. The main question for consideration was whether the High
Court was justified in departing from the settled view.
HELD: The rule laid down in the earlier
decisions was never departed from in the past. The Tenancy Act was amended a
number of times but yet the legislature did not think it necessary to alter or
modify the said rule. In law finality is of the utmost importance. Unless so
required in public interest questions of law firmly 'settled by a long course
of decisions should not ordinarily be disturbed and it is all the more so in
the ease of an interpretation affecting property rights. [471 C-E] The rule
that where the terms of a statute or ordinance are clear then even a long and
uniform course of judicial interpretation of it may be overruled, if it is'
contrary to the clear meaning of the enactment is inapplicable to decisions on
the basis of which titles and transactions must have been rounded [477 D] Case
law referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 955 of 1965.
470 Appeal by special leave from the judgment
and decree dated March 17, 1961 of the Patna High Court in Appeal from
Appellate Decree No. 897 of 1956.
U.P. Singh, for the appellants.
K.K. Sinha for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J. In this case a Full Bench of the Patna High Court differing from the
view taken in a series. of earlier decisions of that High Court as well as the
High Court of Calcutta held that the provisions of Bihar Tenancy Act (to be
briefly referred to hereinafter as the Act) do not apply to a lease of a
homestead though that homestead was a part of an earlier lease which was
admittedly an agricultural lease and to which the provisions of the Act
applied. The appellant challenges the correctness of that decision.
The relevant facts as. found by the fact
finding courts are One Chakrapani Singh was the lessee of a plot which
consisted of agricultural lands as well as a homestead. The homestead was later
separately leased to defendants 1 and 2 (appellants). Thereafter the plaintiffs
purchased the rights of the main lessee and sued the appellants for possession
of the homestead. The appellants resisted the suit mainly on the ground that it
had not been brought in accordance with the provisions of the Act and hence not
maintainable. The contention of the plaintiffs is that the lease is invalid as
it did not conform to the provisions of s. 117 of the Transfer of Property Act
and therefore they are entitled to evict the appellants. The trial court
decreed the plaintiff's suit but the first Appellate Court reversed the decree
of the trial court and dismissed it.
It followed the earlier rulings of the Patna
High Court to the effect that if the main lease is a lease for agricultural
purposes all sub-leases of portions of that leasehold should also be considered
as agricultural leases despite the fact that a particular sub-lease may be that
of a homestead only. The plaintiffs took the matter in second appeal to the
High Court which was decided by a Full Bench which allowed the appeal as
Two questions that arise for decision are (1)
was the High Court right in holding that the lease in favour of the appellants
is governed by s. 117 of the Transfer of Property Act and (2) whether in view
of the uniform view taken in the earlier decisions during a period of nearly 55
years the High Court was justified in reopening the question.
Till the decision under appeal High Courts of
Patna and Calcutta proceeded on the basis that if the main lease is governed
471 by the provisions of the Act and consequently taken out of the scope of the
Transfer of Property Act then it must be held that all sub-leases of portions
of the properties included in the main lease are agricultural leases;
otherwise the main lease would cease to be a
purely agricultural lease as it must be held to relate to both agricultural and
non-agricultural lands. We agree with the Full Bench that the ratio of these
decisions is open to question. If the legal position had not been firmly
settled by a long chain of decisions commencing from 1903 onwards, it is likely
that we would have concurred with the view taken by the Full Bench. But if we
do so we would be unsettling a settled view of the law on the basis of which
various rights must have been created, transactions entered into and titles
founded. The rule laid down in the earlier decisions was never departed from in
the past. The Act was amended a number of times but yet the legislature did not
think it necessary to alter or modify the said rule.
Different considerations would have arisen if
the disputed interpretation related to a penal provision or the same is
detrimental to public interest or causes public inconvenience. Law is not
always logic. It is a part of life and more so in a democratic set up.. In law
finality is of utmost importance. Unless so required in public interest,
questions. of law firmly settled by a long course of decisions should not
ordinarily be disturbed and it is all the more so in the case of an
interpretation affecting property fights. In the instant case, there were no
compelling reasons for the High Court to depart from the rule laid down
earlier. The decision of the High Court, if allowed to stand is bound to
disturb numerous transactions.
It is solely on that ground we propose to set
aside that decision. Now we shall refer to the; decided cases on the point.
The earliest decision on the point is Babu
Ram Roy v.
Mahendra Nath Sarnanta(1). The material facts
of that case are similar to the facts of this case. The main lease in that case
consisted of an agricultural lands as well as a homestead. The homestead was
separately given on sub-lease by the main lessee but no registered lease deed
Subsequently the main lessee sued for
possession of the homestead. It was contended on his behalf that the lease in
favour of the sub-lessee being a lease of non-agricultural property, the same
is invalid as it was not given under a registered lease deed and hence he was
entitled to a decree directing the ejectment of the defendants. The High Court
rejected the plaintiff's claim holding that in order to maintain a suit for
ejectment a notice ,under s. 49 el. 6, Bengal Tenancy Act was necessary and
that notice had to be served in accordance with the rules framed under that
No notice having been given under that
provision, the suit was held to be non- (1) VIII, C.W.N. 454.
472 maintainable by Mitra J. His view was affirmed
'by a Division Bench consisting of Maclean C.J. and Pargiter J.
The above decision was affirmed by another
Division Bench of the Calcutta High Court in Abdul Karim Patwari v. A bdul
Rahaman (1). The same view was taken by the said High Court in Krishna Kanta
Ghosh v. Jadu Kasya(2) and in Kadrutulla and OrS. v. Upendra Kumar
Chowdhury(3). The decision in Arun Kumar Sinha and Ors v. Durga Charan Basu(4)
iS Of special importance. That case was decided by a Division Bench consisting
of B.K. Mukherjea J. who later became the Judge as well as the Chief Justice of
tiffs Court and Roxburgh J. There the learned Judges doubted the correctness of
the earlier decisions but yet were of the opinion that public interest required
that the interpretation placed on the provision of law by a long series of
consistent decisions should not be departed.
This what the learned Judges observed in that
"But the principle was never dissented
from, that in a case of this description, the question whether the tenancy is governed
by the Bengal Tenancy Act or the Transfer of Property Act, would depend on the
nature of the original tenancy, and not on the character of the parcel included
in the sub-tenancy.
The learned advocate who, appears for the
appellants has subjected these decisions to a good deal of criticism. Had the
matter been yes integral, we might have some hesitation in accepting the view
enunciated in them. In the Bengal Tenancy Act, the raiyat is defined to be a
person who acquires land primarily for purposes of cultivation; unless the
letting was for purposes of agriculture the tenancy would not be governed by
the Bengal Tenancy Act even if the superior interest was vested in the holding
of the tenure to which the Bengal Tenancy Act was applicable. We do not think
also. that any real anomaly would arise if as between a raiyat and his
sublessee the rights were governed by the Transfer of Property Act.
Mr. Das who appears for the respondents has
contended that difficulties would arise in enforcing the provisions of ch. 14
Ten. Act. What he says is that the purchaser
of a raiyati holding has the right to annul all sub-tenancies which are
incumbrances under s. 161, Ben. Ten. Act;
but if the raiyat has created a non-
agricultural tenancy in respect of a portion of his lands for a fixed period
governed by the (1) 15 Cal. Law Journal 672.
(2) 19 Cal. W.N. 914.
(3) A.I.R. 1925 Cal. 203.
(4) A.I.R. 1941 Cal. 606.
473 Transfer of Property Act, to allow a
purchaser to annul such sub-tenancies would be to entitle him to go against the
provisions of the Transfer of Property Act. We do not think that there is any
substance in this contention. It is not necessary that the incumbrances which
can be annulled under s.
167 Ben. Ten. Act must be incumbrances created
under that Act. A mortgage is certainly an incumbrance which is created under
the Transfer of Property Act but it can never be suggested that because it is
governed by the Transfer of Property Act, it cannot be annulled by a purchaser
who purchased the holding at a sale in execution of a rent decree under Chap.
14, Ben. Ten. Act.
The difficulty however is created by the way
in which the expression "under-Raiyat" has been defined in s. 4 Ben.
Ten. Act. An under-raiyat has been defined to be a tenant who holds immediately
or mediately under a raiyat. It is not stated here, as in the case of a raiyat,
that he must hold also for purposes of cultivation. It may be argued that this
must be the implication, for the provisions relating to under raiyats which are
contained in Chap. 7 Ben. Ten. Act are appropriate only to this character as an
agricultural tenant. It cannot be denied however that the wording of S. 4,
clause (3) Ben. Ten. Act is very wide, and' when the word has been interpreted
in one way for a period of nearly 40 years without any dissension whatever, we
think that we should not be justified in upsetting the long series of
decisions. It is significant to note that considerable changes have been
introduced the Bengal Tenancy Act in recent years but the Legislature which
must be presumed to be aware of the law as laid down in the abovementioned
decisions did not consider it necessary to make any changes in this
respect." It was not denied by the learned counsel' for the respondents
that the principle enunciated in the abovementioned decisions was consistently
followed by the Calcutta High Court even up-to-date. Hence it is not necessary
to refer to the other decisions of that court.
The Patna High Court consistently followed
the decisions of the Calcutta High Court. In Mian Ahir and Ors v. Paramhans
Pathak(1) while considering a case similar to the present case, the rule laid
down in Babu Ram Roy's case was followed. also in Shrikishun Lal v. Harihar Sah
and another (2). The law (1) A.I.R. 1939 Pat. 409.
(2) A.I.R. (36) 1949 Pat. 444.
474 laid down in those decisions was accepted
as correct till the decision of the Full Bench in the present case.
At page 154 of Craies on Statute Law (6th
Edition) it is observed:
"In 1958 Lord Evershed M.R. said: "There
is wellestablished authority for the view that a decision of long standing, on
the basis of which many persons will in the course of time have arranged their
affairs, should not lightly be disturbed by a superior court not strictly bound
itself by the decision." Again at page 155, it is observed: 'Earlier in
Morgan v. Crawshay, Lord Westbury had thus stated the rule: After explaining
that it was unnecessary to examine the interest of a galee in iron ore mines,
because supposing it to be regarded as a tenement and not merely as an
incorporeal right, I should still arrive at the conclusion that we must bow to
the uniform interpretation which has. been put upon the statute of EliZabeth
and must not attempt to disturb the exposition it .has. received. If we find a
uniform interpretation of a statute upon a question materially affecting
property and perpetually recurring and which has been adhered to without
interruption it would be impossible for us to introduce the precedent of
disregarding that interpretation.
Disagreeing with it would thereby shaking
rights and ritles which have been rounded through so many years upon the c
onviction that interpretation is the legal and proper one and is one which will
not be departed from. In that the House of Lords decided that iron mines and
all other mines except coal mines were, under the Statute of Elizabeth, exempt
from liability to. the poor rate. The statute mentioned coal mines only, and a
long course of decision had established that the rule expressi unius est exclusio
alterius applied to the enactment." (that decision is reported in 1871
L.R. 5 H.L. 304).
In Harding v. Howell(1) Lord Fitzgerald
speaking for the Privy Council while dealing with the interpretation of a
provision in a statute observed:
"Their Lordships do not intend in the
least to question the principle which governs the construction and effect of
that statute as now long established by decided cases. It has been over and
again said that 'so many titles stand on it that it must not be shaken' and in
that their Lordships concur." (1) 14 A.C. 307.
475 In Pugh v. Golden Valley Railway Co.(1).
Thesiger L.J. bserved:
"And the case is in principle a distinct
authority for the proposition that in such circumstances as those which exist
in the present case, the diversion of a river is unjustifiable. Viewed simply
as the decision of a Court of first instance, the authority of this case,
notwithstanding the respect due to the Judges who decided it, is not binding
upon us; but, viewed in its character and practical results, it is one of a
class of decisions which acquire a weight and effect beyond that which attaches
to the relative' position of the Court from which they proceed.
It constitutes an authority which, after it
has stood for so long a period unchallenged, should not, in the interests of
public convenience, and having regard to the protection of private rights, be
overruled by this Court except upon very special considerations. For twelve
years and upwards the case has continued unshaken by any judicial decision or
criticism as an authoritative exposition of the meanmg of sect. 16 of the
Railways Clauses Consolidation Act, 1845, in respect of the matter here in
dispute. During such period hundreds. of Special Acts of Parliament have been
passed sanctioning the construction of lines of railway and the consequent
interference with private fights, and mcorporating for that purposes the
provisions of the General Act.
Promoters. must have sought their powers,
landowners must have regulated their course of action, and parliamentary
committees must have given their sanction to the projects submitted to them
upon the faith and footing of a limit to the powers sought and conceded being
found in the provisions of the general Act 'as interpreted from time to time by
judicial decisions. If so., it is to be presumed that the limit put upon the
powers of a railway company in regard to the diversion of roads and rivers by
the decision of the Court of Kueens' Bench in Reg. v. Wycombe Railway Company
must have exercised a material influence upon the relations of persons owing
land proposed to be affected by special railway legislation and the promoters
of that legislation." In Murphy v. Deichler and Ors(2). Lord Loreburn L.C.
speaking for the House of Lords observed:
"I think this case falls within the rule
that it is' not necessary or advisable to disturb a fixed practice (1) 15 Ch.
(2)  A.C. 446 476 which has been long
observed in regard to the disposition of property, even though it may have been
disapproved at times by individual judges, where no real point of principle has
been violated." The Full Bench was of the view that the rule laid down in
Babu Ram Roy's case and the decisions following it are clearly wrong. Hence
even though that rule held the field for about 55 years, there is no
justification for sustaining it. The Full Bench was of the opinion that in all
cases where the terms of the statute are clear even a long and uniform course
of judicial interpretation of it may be overruled if it is contrary to the
meaning of the enactment. 'It accepted that to be the correct position in law
and that rule is unqualified. In support thereof they relied on the Full Bench
decision of the Allahabad High Court in Lallu Singh v. Gur Narain and Ors.(1)
and the decision of the Privy Council in Tricomdas Cooverji Bhoja v.
Sri Gopinath Jiu Thakur(2). The Full Bench
decision of the Allahabad High Court relied on the Privy Council decision in
Tricomdas Cooverji Bhoja's case and the Privy Council in its turn followed the
decision in Arthur John Pate v. W.C. Pate and Ors(3). In the Allahabad case the
contention of the defendant was that under Hindu Law as settled by decisions
delivery of possession was absolutely necessary for the completion of a gift.
Their Lordships held that whatever might have been the strict law prior to the
passing of the Transfer of Property Act, it must now be held that gift of
immovable property can be validly effected by registered instruments signed
either by or on behalf of the donor and attested by at least two witnesses and
nothing further is necessary to effectuate the transfer. It is in that context
their Lordships observed that Where the terms of the statute or ordinance are
clear then even a long and uniform course of judicial interpretation of it may
be overruled, if it is contrary to the clear meaning of the enactment. In fact
in that case the learned Judges did not depart from the rule laid down in the
earlier cases as regards the scope of s. 123 of the Transfer of Property Act.
They held that the earlier decisions under
the Hindu Law cannot be followed in view of the change in the law effected by
s. 123 of the Transfer of Property Act.
In Tricomdas Cooverjee's(2) case, the Privy
Council did not depart from any well established principle of law. In fact
their Lordships in the course of the Judgment referred to certain conflict of
decisions on the point under consideration and in that context they happened to
make the observations to which we have referred while dealing with the
Allahabad decision. As mentioned (1) A.I.R 1922 All. 467.
(2) A.I.R. 1916 P.C. 182. (3) A.C.
477 earlier the decision of the Privy Council
which was followed by the Full Bench of the Allahabad High Court relied on the
decision in Pate v. Pate (1). That decision if we may say so with all respect
explains the true legal position. In that case while dealing with the various
decisions cited before them their Lordships observed:
"With aH respect to the learned judges
who so read the Ordinance in 1871, their Lordships not only think that their
decision was erroneous, but also that even after the interval of forty four
years it ought to be overruled. The present is not one of those cases in which
inveterate error is left undisturbed because titles and transactions have been
founded on it which it would be unjust to disturb." (emphasis supplied).
From these observations it is clear that the
rule that where the terms of a statute or ordinance are clear then even a long
and uniform course of judicial interpretation of it may be overruled, if it is
contrary to the clear meaning of the enactment is inapplicable to decisions on
the basis of which titles and transactions must have been founded.
For the reasons mentioned herein below this
appeal is allowed and the suit dismissed with costs of this Court.
G.C. Appeal allowed.
(1)  A.C. 1100.