Jaisri Sahu Vs. Rajdewan Dubey &
Ors  INSC 200 (28 April 1961)
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1962 AIR 83 1962 SCR (2) 553
CITATOR INFO :
RF 1968 SC 372 (9) RF 1977 SC2069 (5) D 1991
Hindu Law-Mortgage by widow-Sale by widow to
discharge mortgage debtWhen binding on reversionary.
High Court-Practice-Decision of a
Bench-Binding nature of, on other Bench-Conflicting decisions of Benches before
a later Bench-Procedure to be adopted-Desirability of reference to Full Bench.
P died on July 14, 1932, leaving behind his widow, L as his heir. On June 21, 1935, L executed a Zerpeshgi in favour of
the respondents for an admittedly binding purpose, and on June 17, 1943, she sold to the appellant a portion of the properties which were the subject-matter
of the Zerpeshgi deed for the purpose of redeeming the Zerpeshgi and for
certain other necessary purposes. The respondents who were the reversioners 559
instituted a suit challenging the validity of the sale. The trial court and the
lower appellate court held that the sale was a proper one binding on the
reversioners. On second appeal, a Division Bench of the Patna High Court took a
contrary view and allowed the appeal. One of the judges while he did not
disagree with the findings of fact of the courts below as to the necessity for
the sale followed a decision of the same High Court to the effect that a widow
cannot by selling properties subject to usufructuary mortgage jeopardise the
right of reversioners to redeem them. A different view of the law had been
taken in a later decision of that court, but the learned judge declined to
follow that decision observing that the practice of that Court was either to
follow the previous Division Bench ruling in preference to the later or to
refer the case to a larger Bench for settling the position, but that in the
present case it was not desirable to adopt the latter course. The other learned
judge was of the opinion that the sale deed was not supported by necessity.
Held, that the High Court was in error in
holding that the sale deed in favour of the appellant was not binding on the
When there is a mortgage subsisting on the
property, the question whether the widow could sell it in discharge of it is a
question which must be determined on the facts of each case, there being no
absolute prohibition against her effecting a sale in a proper case. What has to
be determined is whether the act is one which can be justified as that of a
prudent owner managing his or her own properties.
Hanooman Persaud v. Mussamat Babooee, (1856)
6 M.I.A. 393, Vankaji v. Vishnu, (1894) I.L.R. 18 Bom. 534 and Viraraju v. Vankataratnam,
I.L.R.  Mad. 226, relied on.
Dasrath Singh v. Damri Singh, A.I.R. 1927
Pat. 219, disapproved.
Lal Ram Asre Singh v. Ambica Lal, 1929 Pat.
Held, further, that when a Bench of the High
Court gives a decision on a question of law, it should in general be followed
by other Benches unless they have reasons to differ from it, in which case the
proper course to adopt would be to refer the question for the decision of a
Where two conflicting decisions are placed
before a later Bench, the better course for the latter is to refer the matter
to a Full Bench without taking upon itself to decide whether it should follow
the one Bench decision or the other.
Buddha Singh v. Laltu Singh, (1915) I.L.R. 37
All. 604, Seshamma v. Venkata Narasimharao, I.I.R.  Mad. 454, Bilimoria
v. Central Bank of India, A.I.R. 1943 Nag. 340 and Virayya v. Venkata Subbayya,
A.I.R. 1955 Andhra 215, considered.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 645 and 646 of 1957.
Appeal from the judgment and decree dated
August 1956, of the Patna High Court, in Second Appeals Nos. 2155 and 2156 of
A. V. Viswanatha Sastri and R. C. Prasad, for
B. K. Garg, M. K. Ramamurthi, S. C. Agarwal,
and D. P. Singh, for respondents Nos. 1 to 4.
1961. April 28. The Judgment of the Court was
delivered by VENKATARAMA AIYAR, J.-These are appeal. against the judgment of
the High Court of Patna in Second Appeals Nos. 2155 and 2156 of 1948 on
certificates granted by the High Court under Art. 133(1)(c) of the Constitution.
The facts leading to this litigation lie in a narrow compass. One Prithi Dubey
died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who
succeeded as heir to his estate. For the purpose of discharging debts due by
the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour
of two persons, Rajdewan Dubey and Kailash Dabey, who were also the next
reversioners, for a sum of Rs. 1,100. It is not in dispute that this deed is
binding on the reversioners. On June 17, 1943, Laung Kuer sold to the appellant
a portion of the properties which were the subject-matter of the Zerpeshgi deed
dated June 21, 1935, for a consideration of Rs. 1,600 Out of this amount, a sum
of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi,
and the balance of Rs. 500 was paid in cash. It is recited in the deed of sale
that a sum of Rs. 100 was required to effect repairs to the family dwelling
house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and
a sum of Rs. 200 for repairing a well, which had been constructed by the
deceased for user by the public and which was then in a ruined condition. It is
to meet these expenses that Laung Kuer raised Rs. 500.
After obtaining the sale deed, the appellant
sought 561 to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive
the amount and surrender possession of the properties. The appellant deposited
the mortgage amount in court under s. 83 of the Transfer of Property Act and
then instituted Title Suit No. 69 of 1944 for redemption.
Meantime the reversioners, the respondents
herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale
deed in favour the appellant was not binding on the reversioners. And both the
suits were tried together. The parties were at issue on several questions of
fact of which the only one material at this stage is whether the sale in favour
of the appellant was supported by necessity and binding on the reversioners.
The District Munsif of Palamau who tried the suits held on a review of the
evidence that necessity was established in respect of all the four items of
consideration and that the sale was binding on the reversioners. He accordingly
dismissed Title Suit No. 126 of 1943 filed by the respondents and granted a
decree for redemption in Title Suit No. 69 of 1944 filed by the appellant. The
respondents herein, the reversioners, preferred appeals against both the
decrees passed by the District Munsif of Palamau and they were heard by the
Subordinate Judge of Palamau, who, agreeing with the findings given by the
District Munsif, affirmed the decrees and dismissed the appeals. Against these
decrees, the respondents preferred Second Appeals Nos. 2155 and 2156 of 1948 in
the High Court of Patna. While these appeals were pending, Laung Kuer died on
March 14, 1952, and on the application of the respondents, the plaint in Title
126 of 1943 was amended by adding reliefs for
possession and mesne profits. The appeals were then heard by a Bench consisting
of Rai and Misra, JJ., who in separate but concurring judgments, held that the
sale deed in favour of the appellant was not binding on the reversioners.
Misra, J., who delivered the leading judgment did not disagree with the finding
of the courts below that all the four items of consideration were supported by
necessity. Indeed, being a finding of fact, it would be binding on the court in
Second 562 Appeal. He, however, held, following the decision in Dasrath Singh
v. Damri Singh (1) that a widow cannot by selling properties subject to
usufructuary mortgage jeopardise the right of the reversioners to redeem, and
that, therefore, the sale would not be binding on them. A different view was
taken in Lala Ram Asre Singh v. Ambica Lal (1), where it was held that a widow
was not debarred from selling properties subject to mortgage where there was
necessity for it merely by reason of the fact that they were subject to
usufructuary mortgage which contained no personal covenant to pay. But the
learned Judge declined to follow this decision and stated the reason thus:
"Following. therefore, the settled
practice of this Court as laid down in a number of decisions, the only course
left open to us in the circumstances would be either to follow the previous
Division Bench Ruling in preference to the later or to refer the case to a
larger Bench for settling the position.
In my opinion, however, the present case is
not one in which it is desirable to refer this case to a larger Bench.
Following, therefore, the authority of this Court in Dasrath Singh's case which
completely covers the present case, it must be held that the courts below were
in error in relying upon the decision in Lala Ram Asre Singh's case." In
the result the learned Judge held that the sale deed in favour of the appellant
dated June 17, 1943, was not binding on the reversioners. Rai, J., expressed
the view that as the bona fides of the sale in favour of the appellant was
questioned by the reversioners and as there had been no finding on that point
by the Subordinate Judge, the matter might have to be remanded for a finding on
that question, but that, as the sale deed was not supported by necessity, he
agreed with the conclusion of Misra, J. The Second Appeals were accordingly
allowed and consequential reliefs granted. Thereafter, the appellant applied in
the High Court under Art. 133 for leave to appeal to this court, and in
granting certificates, Ramaswami, C. J., and Raj Kishore Prasad, J., observed
in their (1) 8 Pat. L.T. 314; A.I.R. 1927 Pat. 219.
(2) 1i Pat. L.T. 6; A.I.R. 1929 Pat. 216.
563 Order dated November 27, 1956, that there
being a conflict between the decisions in Dasrath Singh's case (1) and Lala Ram
Asre Singh's case (2), the point was one of sufficient importance for grant of
leave to appeal to this Court. They also stated that the question as to the
practice to be followed when there was a conflict of decisions, was likewise
one of public importance, which ought to be settled by this Court. They
accordingly granted certificates under Art. 133 (1)(c) and that is how these
appeals come before us.
Before considering the two questions referred
to in the order of the High Court granting certificates, we shall deal with a
contention raised on behalf of the respondents, which if well founded would
necessitate a remand of these appeals.
It was argued that the sale deed in favour of
the appellant was not bona fide, that it had been so held by the District
Munsif, but that the Subordinate Judge had failed to record a finding on this
question, and that therefore there should be a remand for a decision on that
point. As already stated, Rai, J., appears to have been impressed by this
contention. But when the contention is further examined it will be found to be
wholly without substance. What the District Munsif said was that "after
the death of Prithi Dubey the relatives of Lawan Kuer had fallen on her
property like vultures", and that it was quite possible "that the
transaction in question was also brought at their instance and they were also
benefited by it." This only means that the relatives of Laung Kuer were
guilty of spoliation of the estate. But that would not affect the rights of the
appellant unless he was a party to it, which, however, is not the case, and
that is what the District Munsif himself observes with reference to this
"But in the present suit I have got to
consider the interest of Jaisri Sahu who has in good faith already paid Rs. 500
to the Mostt. and has deposited the balance of Rs. 1,100 in court for the
redemption of the Zarpeshgi." This finding that the appellant himself
acted bona fide was not challenged before the Subordinate Judge (1) 8 Pat. L.T.
314. A.I.R. 1927 Pat. 219.
(2) 11 Pat. L.T. 6; A.I.R. 1929 Pat. 2i6.
564 on appeal and the point is accordingly
not open to the respondents.
Dealing next with the points mentioned in the
Order of the High Court dated November 27, 1956, the first question that arises
for decision is whether a sale by a widow of properties which are the subject
matter of a usufructuary mortgage is beyond her powers when the mortgagee
cannot sue to recover the amount due on the mortgage. This has been answered in
the affirmative by the learned Judges of the High Court on the strength of the
decision in Dasrath Singh v. Damri Singh (1). There the last male holder, one
Sitaram Singh, had created a usufructuary mortgage, and after his death the
widow sold the property for the discharge of this debt and of certain other
debts, and for meeting the marriage expenses of her daughter and
grand-daughter. It was held by Das and Adami, JJ., that all these items of
consideration were supported by necessity, but nevertheless the sale was not
binding on the reversioners. Das, J., who delivered the judgment observed as
follows "It is contended that under the terms of the usufructuary mortgage
it would be open now to the plaintiffs to redeem that mortgage and it is
pointed out that their right to redeem should not have been jeopardised by the
widow by the transfer of the property to the mortgagee. In my opinion this
argument is right and should prevail." If the learned Judge intended to
lay down as an inflexible proposition of law that, whenever there is a
usufructuary mortgage, the widow cannot sell the property, as that would
deprive the reversioners of the right to redeem the same, we must dissent from
it. Such a proposition could be supported only if the widow is in the position
of a trustee, holding the estate for the benefit of the reversioners, with a
duty cast on her to preserve the properties and pass them on intact to them.
That, however, is not the law. When a widow succeeds as heir to her husband,
the ownership in the properties, both legal and beneficial, vests in her. She
fully represents the estate, the interest of (1) 8 Pat. L.T. 314; A.I.R. 1927
565 the reversioners therein being only spes
successionis. The widow is entitled to the full beneficial enjoyment of the
estate and is not accountable to any one. It is true that she cannot alienate
the properties unless it be for necessity or for benefit to the estate, but
this restriction on her powers is not one imposed for the benefit of
reversioners but is an incident of the estate as known to Hindu law. It is for
this reason that it has been held that when Crown takes the property by escheat
it takes, it free from any alienation made by the widow of the last male holder
which is not valid under the Hindu law, vide:
Collector of Masulipatam v. Cavaly Venkata
(1). Where, however, there is necessity for a transfer, the restriction imposed
by Hindu law on her power to alienate ceases to operate, and the widow as owner
has got the fullest discretion to decide what form the alienation should
Her powers in this regard are, as held in a
series of decisions beginning with Hanooman Persaud v. Mussamat Babooee (2),
those of the manager of an infant's estate or the manager of a joint Hindu
family. In Venkaji v. Vishnu (3) it Was observed that"A widow like a
manager of the family, must be allowed a reasonable latitude in the exercise of
her powers, provided........ she acts fairly to her expectant heirs'." And
more recently, discussing this question, it was observed in Viraraju v.
Venkataratnam ('):"How exactly this obligation is to be carried out,
whether by a mortgage. sale or other means, is not to be determined by strict
rules or legal formulae, but must be left to the reasonable discretion of the
party bound. In the absence of mala fides or extravagance, and so long as it is
neither unfair in character nor unreasonable in extent, the Court will not scan
too nicely the manner or the quantum of the alienation." Judged by these
principles, when there is a mortgage subsisting on the property, the question
whether (1) (1861) 8 M.I.A. 529.
(3) (1894) 18 Bom. 534, 536.
(2) (1856) 6 M. I. A. 393.
(4) I.L.R.  Mad. 226. 231.
72 566 the widow could sell it in discharge
of it is a question which must be determined on the facts of each case, there
being no absolute prohibition against her effecting a sale in a proper case.
What has to be determined is whether the act is one which can be justified as
that of a prudent owner managing his or her own properties. If the income from
the property has increased in value, it would be a reasonable step to take to
dispose of some of the properties in discharge of the debt and redeem the rest
so that the estate can have the benefit of the income. In this view, the
decision in Dasrath Singh's case,(') in so far as it held that a Bale by a
widow of a property which is subject to a usufructuary mortgage is not binding
on the reversioners must be held to be wrong.
In Lala Ram Asre Singh's case (2), which was
a decision of Das and Fazl Ali, JJ., the facts were similar to those in Dasrath
Singh's case (1). Dealing with the contention that a sale by the widow of
properties which were the subjectmatter of a Zerpesbgi deed was not binding on
the reversioners because the Zerpeshgidar was in possession of the properties
and he could not sue to recover the amount due there under, Das, J., delivering
the judgment of the court observed:"This in my view is an impossible
The debt was there; it was a subsisting debt,
only the creditor was in possession of a part of the estate and was unable to
recover it by instituting a suit in the civil courts. But the result was that a
considerable portion of the income was withdrawn from Basmati Kuer who had
succeeded her husband. It is wellestablished that where a case of necessity
exists, an heiress is not bound to borrow money, with the hope of paying it off
before her death. Nor is she bound to mortgage the estate, and thereby reduce
her income for life. She is at liberty, if she thinks fit, absolutely to sell
off a part of the estate." In our judgment these observations correctly
state the position in law. It will be noticed that Das, J., deli(1) 8 Pat. L.
T. 314; A.I.R. 1927 Pat. 219, (2) ii Pat. L. T. 6; A.I.R. 1929 Pat. 2i6.
567 vered the judgment in both Dasrath
Singh's case (1) and Lala Ram Asre Singh's case (2 ) and that the decision in
Dasrath Singh's case (1) is not referred to in the judgment in Lala Ram Asre
Singh's case (2).
It has been found in this case that Laung
Kuer had to raise a sum of Rs. 500 for necessary purposes. She could have done
that by mortgaging other properties, but that would have reduced the income available
for enjoyment by her. On the other hand, by a sale of a portion of the
properties covered by the Zerpeshgi deed dated June 21, 1935, she was able to
redeem the other properties and the estate had the benefit of the income from
those properties. The District Munsif and the Subordinate Judge on appeal have
both of them held on a review of all the facts that the sale in favour of the
appellant is a proper one binding on the reversioners.
We are of opinion that this finding is not
open to attack in Second Appeal.
Then there is the question of the practice to
be followed when there is a conflict among decisions of Benches of the same
High Court. When a Bench of the High Court gives a decision on a question of
law, it should in general be followed by other Benches unless they have reasons
to differ from it, in which case the proper course to adopt would be to refer
the question for the decision of a Full Bench. In Buddha Singh v. Laltu Singh
(3), the Privy Council had occasion to discuss the procedure which should be
adopted when a Bench of a High Court differs from the opinion given by a
previous Bench. After referring to Suraya Bhukta v. Lakhshminarasamma (4) and
Chinnasami Pillai v. Kunju Pillai (5), where decisions had been given based on
the opinions expressed by Devananda Bliatta in the Smriti Chandrika, the Privy
Council observed:"Curiously enough there is no reference in either of the
Madras judgments referred to above to a previous decision, Parasara Bhattar v.
Rangaraja Bhattar (6) of the same court to which Turner, (1) 8 Pat. L.T. 314;
A.I.R. 1927 Pat. 219.
(2) 11 Pat. L.T. 6; A.I.R. 1929 Pat. 216.
(3) (1915) I.L.R. 37 All. 604.
(4) (1881) I.L.R. 5 Mad. 291.
(5) (1912) I.L.R. 35 Mad. 152 (6) (1880)
I.L.R. 2 Mad. 2.
568 C. J., was also a party. In that case the
rule of the Smriti Chandrika was not accepted nor was the literal construction
of the Mitakshara followed. It is usual in such cases where a difference of
opinion arises in the same court to refer the point to a Full Bench, and the law
provides for such contingencies. Had that course been followed their Lordships
would probably have had more 'detailed reasoning as to the change of opinion on
the part at least of one Judge." (pp. 622, 623).
Considering this question, a Full Bench of the
Madras High Court observed in Seshamma v. Venkata Narasimharao (1):
"The Division Bench is the final Court
of appeal in an Indian High Court, unless the case is referred to a Full Bench,
and one Division Bench should regard itself bound by the decision of another
Division Bench on a question of law. In England, where there is the Court of
Appeal, Divisional Courts follow the decisions of other Divisional Courts on
the grounds of judicial comity; see The Vera Cruz (No. 2) (2), Harrison v.
Ridgway Ratkinsky v. Jacobs (4) and Phillips v.
Copping If a Division Bench does not accept
as correct the decision on a question of law of another Division Bench the only
right and proper course to adopt is to refer the matter to a Full Bench, for
which the rules of this court provide. If this course is not adopted, the
courts subordinate to the High Court are left without guidance. Apart from the
impropriety of an appellate Bench refusing to regard itself bound by a previous
a question of law of an appellate Bench of
equal strength and the difficulty placed in the way of subordinate Courts
administering justice, there are the additional factors of the loss of money
and, the waste of judicial time." Law will be bereft of all its utility if
it should be thrown into a state of uncertainty by reason of conflicting
decisions, and it is therefore desirable that in (1) I.L.R.  Mad. 454,
(2) (1884) 9 P.D. 96.
(3) (1925) 133 L.T. 238.
(4)  1 K.B. 24.
(5)  1 K.B. 15.
569 case of difference of opinion, the
question should be authoritatively settled. It sometimes happens that an
earlier decision given by a Bench is not brought to the notice of a Bench
hearing the same question, and a contrary decision is given without reference
to the earlier decision.
The question has also been discussed as to
the correct procedure ' to be followed when two such conflicting decisions are
placed before a later Bench. The practice in the Patna High Court appears to be
that in those cases, the earlier decision is followed and not the later. In
England the practice is, as noticed in the judgment in Seshamma v. Venkata
Narasimharao (1), that the decision of a Court of Appeal is considered as a
general rule to be binding on it.
There are exceptions to it, and one of them
is thus stated in Halsbury's Laws of England, third edition, Vol. 22, para.
1687, pp. 799, 800:"The court is not
bound to follow a decision of its own if given per incuriam. A decision is
given per incuriam when the court has acted in ignorance of a previous decision
of its own or of a court of a co-ordinate jurisdiction which covered the case
before it, or when it has acted in ignorance of a decision of the House of
Lords. In the former case it must decide which decision to follow, and in the
latter it is bound by the decision of the House of Lords." In Virayya v.
Venkata Subbayya (2) it has been held by the Andhra High Court that under the
circumstances aforesaid the Bench is free to adopt that view which is in
accordance with justice and legal principles after taking into consideration
the views expressed in the two conflicting Benches, vide also the decision of
the Nagpur High Court in Bilimoria v. Central Bank of India (3 ). The better
course would be for the Bench hearing the case to refer the matter to a Full
Bench in view of the conflicting authorities without taking upon itself to
decide whether it should follow the one Bench decision or the other. We have no
doubt that when such situations arise, the Bench (1) I.L.R.  Mad. 454, 474.
(2) A.I.R 1955 Andhra 215, 217.
(3) A.I. R. 1943 Nag 340.
570 hearing cases would refer the matter for
the decision of a Full Court. In the result these appeals are allowed and the
decrees passed by the trial court restored with costs throughout. One set of