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PETITIONER: JAISRI SAHU

       Vs.

RESPONDENT: RAJDEWAN DUBEY AND OTHERS

DATE OF JUDGMENT: 28/04/1961

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B. WANCHOO, K.N. 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 SC1581  (12)

ACT: Hindu  Law-Mortgage  by  widow-Sale by  widow  to  discharge mortgage debt- When binding on reversioners. High  Court-Practice-Decision of a Bench-Binding nature  of, on another Bench-Conflicting decisions of Benches before   a later   Bench-Procedure   to  be   adopted-Desirability   of reference to Full Bench.

HEADNOTE: 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

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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 reversioners. 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. [1939] Mad. 226, relied on. Dasrath  Singh  v. Damri Singh, A.I.R. 1927 Pat.  219,  dis- approved. Lal Ram Asre Singh v. Ambica Lal, 1929 Pat. 216, approved. 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  Full  Bench. 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. [1940]  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,  con- sidered. 560

JUDGMENT: 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 1948. A.   V.  Viswanatha  Sastri  and  R.  C.  Prasad,  for   the appellant. 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,

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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 Suit No. 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

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             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 aspect:               "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

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             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 Pat. 219.                             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 assume. Her  powers  in  this regard are, as held  in  a  series  of decisions  beginning with Hanooman Persaud v.  Mussamat  Ba-

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booee (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. [1939] 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  subject- matter   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  thereunder,  Das, J., delivering the  judgment  of  the court observed:-               "This  in my view is an  impossible  argument.               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   well-               established  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."

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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 occa- sion 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

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             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  impro-               priety  of  an  appellate  Bench  refusing  to               regard itself bound by a previous decision on.               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. [1940] Mad. 454, 474. (2)  (1884) 9 P.D. 96. (3)  (1925) 133 L.T. 238. (4)  [1929] 1 K.B. 24. (5) [1935] 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

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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. [1940] 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 hearing costs.                                 Appeals allowed.